United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
the court is Petitioner William Earl Hunt's 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his
sentence imposed in 2009 under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). Civ. Doc.
Hunt filed this § 2255 motion challenging his
designation as an armed career criminal under the ACCA based
upon the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Hunt argues that, under Johnson, in which the
Supreme Court held that the residual clause of the
“violent felony” definition in the ACCA is
unconstitutional, he no longer has three prior convictions
that qualify as ACCA predicates. He seeks resentencing
without application of the ACCA.
BACKGROUND AND PROCEDURAL HISTORY
September 2008, Hunt pled guilty under a plea agreement to
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). See Crim. Doc. 85. A
conviction under § 922(g)(1) normally carries a sentence
of not more than ten years' imprisonment. 18 U.S.C.
§ 924(a)(2). However, under the ACCA, an individual who
violates § 922(g) and has three prior convictions for a
violent felony, a serious drug offense, or both, is subject
to an enhanced sentence of not less than fifteen years. 28
U.S.C. § 924(e)(1); see also Descamps v. United
States, 570 U.S. 254, 258 (2013) (noting the typical
statutory maximum sentence and the ACCA's heightened
mandatory minimum for § 922(g) convictions).
January 2009, when Hunt was sentenced, the ACCA defined a
“violent felony” as any crime punishable by
imprisonment for a term exceeding one year that (1)
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another”; (2) “is burglary, arson, or extortion,
involves use of explosives”; or (3) “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B). These definitions of “violent
felony” fall into three respective categories: (1) the
elements clause; (2) the enumerated-offenses clause; and (3)
the (now void) residual clause. See In re Sams, 830
F.3d 1234, 1236-37 (11th Cir. 2016).
Hunt's case, the U.S. Probation Officer stated in the
presentence investigation report (“PSI”) that
Hunt had the requisite number of predicate convictions to
subject him to an ACCA-enhanced sentence; those convictions
were listed as follows:
• a 1987 conviction for the sale or delivery of a
controlled substance (cocaine; two counts) in the Circuit
Court of the Eleventh Judicial Circuit in Dade County,
Florida (No. 86-29497);
• a 1988 conviction for trafficking in cocaine in the
Circuit Court of the Eleventh Judicial Circuit in Dade
County, Florida (No. 87-27947); and
• a 1999 conviction for robbery with a weapon in the
Circuit Court of the Fourth Judicial Circuit in Duval County,
Florida (No. 98-12648).
See Crim. Doc. 76 at 4-5, ¶ 12; id.,
¶ 18; id. at 6-8, ¶¶ 23, 24 &
did not specify which clause of the ACCA definition of
“violent felony” Hunt's Florida robbery
conviction fell under. Hunt's sentencing hearing was held
on January 8, 2009. See Crim. Doc. 86. The district
court adopted the findings in the PSI, specifically adopting
the findings that Hunt's offense level was 30; that his
criminal history category was IV; and that his sentencing
guidelines range was 180 months because the ACCA applied to
him. Id. at 6. After hearing from the parties on the
appropriate sentence, the district court sentenced Hunt under
the ACCA to 180 months in prison. Id. at 8. The
district court did not specify which clause of the ACCA
definition of “violent felony” it was relying on
in using Hunt's Florida robbery conviction as a predicate
conviction under the ACCA or specifically state that it found
Hunt's Florida drug convictions to be serious drug
offenses. Hunt did not appeal his conviction and sentence.
2015, over six years after Hunt was sentenced, the United
States Supreme Court held that the ACCA's residual clause
is unconstitutionally vague. Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson, the
Court reasoned: “[T]he indeterminacy of the
wide-ranging inquiry required by the residual clause both
denies fair notice to defendants and invites arbitrary
enforcement by judges. Increasing a defendant's sentence
under the clause denies due process of law.”
Id. at 2557. However, the Court “d[id] not
call into question application of the [ACCA] to . . . the
remainder of the Act's definition of a violent
felony.” Id. at 2563 (alterations added).
Subsequently, in Welch v. United States, 136 S.Ct.
1257 (2016), the Supreme Court held that the Johnson
decision announced a new substantive rule of constitutional
law that applies retroactively to cases on collateral review.
26, 2016, Hunt, proceeding pro se at the time, filed
a § 2255 motion appearing to argue, among other things,
that he is entitled to be resentenced without the ACCA
enhancement because, after Johnson, his convictions
for the sale and delivery of cocaine and for trafficking in
cocaine do not qualify as “serious drug offenses”
within the meaning of 18 U.S.C. § 924(e)(2)(A) of the
ACCA. See Civ. Doc. 1 at 1 & 9-14.
Hunt's pro se § 2255 motion also asserted
numerous other claims unrelated to the holding in
Johnson, including various allegations of
ineffective assistance of counsel, entrapment, sentence
manipulation, unlawful arrest, prosecutorial misconduct, and
the unconstitutionality of 18 U.S.C. § 924(e)(2)(A).
Id. at 4-10.
22, 2016, under a Standing Order concerning defendants
sentenced in this District who raise claims under
Johnson, this court appointed the District's
Federal Defender Organization to represent Hunt “for
purposes of reviewing his case . . . and to take all
appropriate future action as is necessary.” Civ. Doc.
3. On July 7, 2016, the Federal Defender, on behalf of Hunt,
filed a supplement to the § 2255 motion presenting
claims that (1) Hunt's Florida robbery conviction did not
include as an element the use, attempted use, or threatened
use of physical force necessary to satisfy the ACCA's
elements clause, 18 U.S.C. § 924(e)(2)(B)(i), and could
only have been deemed a violent felony under the now-void
residual clause in 18 U.S.C. § 924(e)(2)(B)(ii),
that use of the conviction as a predicate offense in applying
the ACCA enhancement violated ...