US v. Willie Allen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999776362-3] Originating case number: 7:03-cr-00067-F-1,7:15-cv-00167-F Copies to all parties and the district court/agency. [999902490]. Mailed to: Willie Allen. [16-6388]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6388

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIE ALLEN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:03-cr-00067-F-1; 7:15-cv-00167-F)

Submitted:

July 15, 2016

Decided:

August 2, 2016

Before MOTZ, KING, and FLOYD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Willie Allen, Appellant Pro Se. Richard Ernest Myers, II, Seth
Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Willie Allen appeals the district court’s order denying his
28 U.S.C. § 2255 (2012) motion.

We vacate the district court’s

order and remand for further proceedings.
Allen pled guilty to possession of a firearm by a convicted
felon,

18

determined

U.S.C.
that

§ 922(g)(1)

Allen,

who

(2012).

had

three

The
prior

district

convictions

violent felonies, qualified as an armed career criminal.
U.S.C. § 924(e)(1) (2012).

court
of

See 18

Allen was sentenced to 180 months in

prison.
Two of the three prior convictions were for North Carolina
common law robbery.

Allen contended in his § 2255 motion that,

under Johnson v. United States, 135 S. Ct. 2551 (2015), these
convictions were no longer valid predicates for armed career
criminal status.

We recently held that a conviction of North

Carolina common law robbery does not categorically qualify as a
violent

felony

under

the

Armed

Career

Criminal

Act

(ACCA).

United States v. Gardner, __ F.3d __, 2016 WL 2893881, at *7
(4th

Cir.

May

18,

2016)

(No.

14-4533).

In

Gardner,

we

determined that such a conviction falls not under the “force”
clause of ACCA, 18 U.S.C. § 924(e)(2)(B)(i), but instead under
ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii).

In light

of Johnson, which invalidated the residual clause and applies
retroactively to cases on collateral review, Welch v. United
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States, 136 S. Ct. 1257 (2016), we conclude that Allen’s common
law

robbery

convictions

cannot

serve

as

predicate

violent

felonies for armed career criminal status.
We accordingly grant a certificate of appealability, vacate
the district court’s order, and remand for further proceedings
consistent with this opinion.
counsel is denied.
facts

and

materials

legal
before

The motion for appointment of

We dispense with oral argument because the

contentions
the

court

are

adequately

and

argument

presented

would

not

in

the

aid

the

decisional process.

VACATED AND REMANDED

3