United States District Court, N.D. Alabama, Southern Division
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Petitioner's Motion to Vacate
Under 28 U.S.C. § 2255. (Civil Docket, Doc. #
The court appointed the Federal Public Defender to represent
Petitioner, and the Public Defender has filed a supplement to
the § 2255 motion. (Civil Docket, Doc. # 6). Respondent
has filed a brief addressing Petitioner's claims (Civil
Docket, Doc. # 8), and the motion to vacate is now under
submission. After careful review, and for the reasons
explained below, Petitioner's motion to vacate is due to
be granted in part and denied in part.
Factual Background and Procedural History
7, 2007, Petitioner pled guilty to: (1) one count of armed
bank robbery, in violation of 18 U.S.C. § 2113(a) and
(d) (“Count Three”); (2) one count of brandishing
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(C)(i) (“Count
Four”); and (3) one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (“Count Five”). (See Criminal
Docket, Second Minute Entry dated May 7, 2007). (See
also Criminal Docket, Doc. # 51 at 4-5) (describing the
charges in the indictment and the guilty plea to three of the
five charges filed against Petitioner). A jury then convicted
Petitioner of a second count of armed bank robbery
(“Count One”) and a second count of brandishing a
firearm during and in relation to a crime of violence
(“Count Two”). (Criminal Docket, Doc. # 27).
(See also Criminal Docket, Doc. # 51 at 4-5).
Presentence Investigation Report (“PSR”)
recommended that Counts Three and Five be considered a
separate offense group from Count One. (See PSR
at ¶¶ 19-32). After a multiple-count adjustment,
the PSR calculated a total offense level of 26 for Counts
One, Three, and Five. (Id. at ¶¶ 34-41).
Then, it enhanced Petitioner's offense level to 34,
pursuant to the career offender guideline, U.S.S.G. §
4B1.1, because (a) the offenses at issue were crimes of
violence, (b) Petitioner was over 18 years old when he
committed the offenses at issue, and (c) Petitioner
previously had been convicted of two crimes of violence.
(Id. at ¶ 42). According to the PSR,
Petitioner's prior convictions for crimes of violence
included attempted robbery and discharging a firearm into an
unoccupied vehicle. (Id.). Moreover, the PSR stated
that Petitioner was an armed career criminal and subject to
the mandatory minimum sentence in 18 U.S.C. § 924(e) --
otherwise known as the Armed Career Criminal Act
(“ACCA”) -- for his § 922(g)(1) conviction.
(Id. at ¶ 46). Ultimately, the PSR recommended
a total guideline range of 646 to 711 months'
imprisonment for all five counts. (Id. at
¶¶ 44-45, 87).
objected to several aspects of the PSR's guideline
calculation. (Criminal Docket, Doc. # 28). Among other
objections, he first argued that the PSR incorrectly applied
a career offender enhancement because his conviction for
discharging a firearm into an unoccupied vehicle was not a
crime of violence. (Id. at 1). Second, he claimed
that his attempted robbery conviction was not a crime of
violence because he had acted as an accomplice during the
attempt. (Id. at 2). Third, he argued that the PSR
incorrectly calculated the guideline range for Count Five
(the § 922(g) conviction) because he had not been
previously convicted of a crime of violence. (Id.).
Finally, Petitioner claimed that his mandatory minimum
sentence should only have been seven years' imprisonment
because Counts Two and Four were his first § 924(c)
convictions. (Id. at 3).
sentencing, the court overruled Petitioner's objections
to the crimes of violence used to justify the career offender
enhancement. (Criminal Docket, Doc. # 40 at 30-31). The court
adopted the PSR's guideline range of 646 to 711
months' imprisonment. (Id. at 31). Also, it
found that Petitioner was subject to the enhanced mandatory
minimum sentence in the ACCA for Count Five because he had
been convicted of three separate violent felonies.
(Id. at 31-32). But, the court granted Petitioner a
substantial downward variance from the guideline range.
(Id. at 39-40).
I am going to vary down as my authority under Booker allows
me to do to a sentence of 180 months as to Counts One, Three
and Five separately with each count to run concurrently. . .
As to Count Two, the defendant shall be imprisoned for a term
of 84 months. As to Count Four, he shall be imprisoned for a
term of 300 months. And the sentence in Count Two and Count
Four shall run consecutively to the sentences imposed in
Counts One, Three and Five and consecutive with each other.
(Id.). The court acknowledged that a 564-month
imprisonment sentence amounted to “a tremendous amount
of time, ” but it was the minimum sentence Petitioner
could receive for his convictions. (Id. at 40).
Following objections from Petitioner's and
Respondent's attorneys, the court explained why the
sentence was reasonable:
THE COURT: I do think the sentence is reasonable. I think it
was largely driven by the consecutive sentences required for
the crime of the 924 violations obviously, but I do think
it's reasonable under the circumstances, in light of
particularly the effects on the victims, the multiple bank
robberies that occurred within a close time, although
they're not due to be grouped. And also I think the
variance is reasonable, because I think the sentence imposed
is reasonable in light of the conduct you've engaged in.
I really tried to hit the right mark on finding a sentence
that's sufficient but not greater than necessary to
achieve the statutory purposes of sentencing, and I think the
564 months does that. I think 646 months, I think that extra
time would not achieve the statutory purposes of sentencing
and would not -- it would essentially be too great a
punishment in this case.
(Id. at 43-44).
appeal, the Eleventh Circuit affirmed Petitioner's
convictions and sentences. (Criminal Docket, Doc. # 51 at
13). The Eleventh Circuit rejected Petitioner's claim
that a conviction for discharging a firearm into an
unoccupied vehicle did not qualify as a crime of violence
under the Sentencing Guidelines. (Id. at 9-11).
Relying on an earlier unpublished opinion, the Eleventh
Circuit explained that such a conviction was a crime of
violence because “discharging a firearm into a dwelling
-- occupied or unoccupied -- involved a potential risk of
physical injury.” (Id. at 10) (citing
United States v. Rabb, 248 F. App'x 133, 134
(11th Cir. 2007)).
2009, Petitioner filed a motion to vacate under § 2255.
(Case No. 2:09-cv-08041-RDP-PWG, Doc. # 1). Among other
things, Petitioner claimed that the court erroneously
sentenced him to a mandatory minimum sentence under the ACCA
because he was actually, factually, and legally innocent of
the predicate violent felonies used to justify that sentence.
(Id. at 12). A Magistrate Judge recommended denying
the claim because he found that Petitioner had not been
sentenced under the ACCA. (Case No. 2:09-cv-08041-RDP-PWG, Doc. #
13 at 11-12). After reviewing Petitioner's objections,
the court affirmed the Magistrate Judge's recommendation
to deny Petitioner's initial motion to ...