United States District Court, N.D. Alabama, Western Division
LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE
case is presently pending before the court on petitioner
Darrell Lynn Dancy's Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody [hereinafter Motion to Vacate]. (Doc. 1;
crim. doc. 13.) In response, the Government has stated
that it “agrees that [Dancy] is entitled to a
resentencing because his Alabama conviction for shooting a
firearm into an occupied vehicle is not a ‘violent
felony' under the Armed Career Criminal Act in light of
United States v. Estrella, 758 F.3d 1239 (11th Cir.
2014), Johnson v. United States, 135 S.Ct. 2551
(2015), and Welch v. United States, 136 S.Ct. 1257
(2016).” (Doc. 8 at 1.)
is well established that, “Confessions of error do not
relieve this Court of the performance of the judicial
function. Our judgments are precedents, and the proper
administration of the criminal law cannot be left merely to
the stipulation of parties.” United States v.
Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015), (quoting
Sibron v. New York, 392 U.S. 40, 58 (1968)(quoting
Young v. United States, 315 U.S. 257, 258-59
(1942)))(internal quotations and citations omitted). Based on
the court independent review of Dancy's habeas claim and
the sentencing record, the court finds that Dancy's
habeas petition is due to be denied.
contends that he was improperly sentenced as an armed career
criminal to 180 months for possession of a firearm by a
convicted felon because “his prior conviction for
shooting into an occupied vehicle . . . can no longer be used
to enhacne his sentence under the ACCA residual clause . . .
.” (Doc. 1 at 4.) The Government states that Dancy was
sentenced to fifteen years based on “three prior
Alabama convictions: two marijuana-distribution
offenses that were classified as serious drug offenses; and
the offense of shooting into an occupied vehicle, which was
classified as a violent felony.” (See doc. 8
at 2 [emphasis added].) The Government also contends that
Dancy's conviction for shooting into an occupied vehicle
is not a violent felony conviction and that
“Dancy's sentence should be vacated for
resentencing.” (Id. at 5.)
demonstrates that, in addition to his conviction for shooting
into an occupied vehicle, Dancy had three
convictions for serious drug offenses, not two.
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen
years . . . .
18 U.S.C. § 924(e)(1)(footnote added). “A serious
drug offense” includes, “an offense under State
law, involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled
substance . . . for which a maximum term of imprisonment of
ten years or more is prescribed by law.” Id.
§ 924(e)(2)(A)(ii). Also, the requirement that the
previous convictions were “committed on occasions
different from one another” requires that the crimes of
conviction be “temporally distinct” -
So long as the predicate crimes are successive rather than
simultaneous, they constitute separate criminal episodes for
purposes of the ACCA. Distinctions in time and place are
usually sufficient to separate criminal episodes from one
another even when the gaps are small, and two offenses are
considered distinct if some temporal break occurs between
United States v. Weeks, 711 F.3d 1255, 1261 (11th
Cir. 2013)(internal citations and quotations omitted).
to the PSR, Dancy had convictions for (1) unlawful
distribution of marijuana in the first degree within three
miles of a school on August 8, 2001; (2) unlawful
distribution of controlled substance (marijuana), within
three miles of a school on November 30, 2001, and (3)
unlawful distribution of controlled substance (marijuana)
within three miles of a school on March 8, 2002. (Doc. 10 at
9-10.) Dancy did not object to the fact of these convictions
at sentencing. The unlawful distributions for which Dancy was
convicted occurred on three different occasions.
Alabama law, unlawful distribution of a controlled substance
is a Class B felony, Ala. Code § 13A-12-211(b), for
which the possible term of imprisonment is “not more
than 20 years or less than 2 years, ” Ala. Code §
13A-5-6. Because he was convicted of distributing a
controlled substance within three miles of a school, Dancy
faced an additional term of imprisonment of 5 years.
Therefore, even without consideration of his conviction for
shooting into an occupied vehicle, Dancy has three qualifying
prior convictions for purposes of sentencing him to a term of
imprisonment for 180 months.
court finds that, even if the shooting into an occupied
vehicle conviction is not considered, Dancy has three prior
convictions for serious drug offenses and this court would be
required sentence Dancy to 15 years as an Armed Career
Criminal. Therefore, Dancy's ...