Moody v. United States of America (INMATE 3)
MEMORANDUM OPINION AND ORDER: Having now carefully reviewed and considered the § 2255 motion and the United States's response to it, and having independently examined the entire record in Moody's criminal case, it is hereby ORDERED and ADJUDGED that the motion for § 2255 relief be and hereby is GRANTED, and Moody's sentence in United States v. Moody, 1:05-cr-00195-LSC-SRW-1, is hereby VACATED. By separate order in Moody's criminal case, the Court will set a new sentencing hearing for Moody. This action is DISMISSED WITH PREJUDICE. Signed by Honorable L. Scott Coogler on 8/3/2016. (furn: AG)(kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICKEY LEE MOODY,
UNITED STATES OF AMERICA
MEMORANDUM OF OPINION AND ORDER
This is a motion to vacate a sentence under the authority of 28 U.S.C. §
2255, Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States,
136 S. Ct. 1257 (2016), filed by Petitioner, Mickey Lee Moody (“Moody”),
through counsel, on June 20, 2016. The United States does not oppose the motion
and agrees that Moody is entitled to relief because he was sentenced in excess of
the applicable statutory maximum. For the following reasons, the motion is due to
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On September 8, 2005, Moody was charged with one count of possession of
a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), with penalties
at 18 U.S.C. § 924(e)(1). He pled guilty to that count on April 10, 2006. The
Presentence Investigation Report (“PSR”) recommended that Moody’s sentence
be enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
922(g), because it concluded that he had at least three prior convictions for
“violent felonies” that were committed on occasions different from one another.
The PSR classified the following Florida and Alabama convictions as either serious
drug offenses or “violent felonies:”
Florida burglary of a dwelling (PSR, ¶¶ 21, 32);
Alabama burglary, 3rd degree (id. ¶¶ 21, 33);
Alabama, serious drug offense (conspiracy to violate the
controlled substance act; smuggling marijuana into the United States)
(id. ¶¶ 21, 39).
On September 7, 2006, this Court sentenced Moody to the ACCA
minimum—a 180-month term of imprisonment. The Court also ordered a 36month term of supervised release upon his release from imprisonment. Moody’s
projected release date is September 7, 2021. His Johnson claim is timely, as it was
filed within one year from the date on which the right asserted was initially
recognized by the Supreme Court. 28 U.S.C. § 2255(f)(3).
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Moody argues that in light of Johnson v. United States and Welch v. United
States, he is entitled to be resentenced without the ACCA enhancement because
his conviction for an Alabama third degree burglary conviction does not qualify as
“violent felony” under the ACCA. The ACCA provides a mandatory-minimum
sentence of 180 months for defendants with at least three prior convictions for “a
violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). A “violent
felony” is a “crime punishable by imprisonment for a term exceeding one year”
that also either “has as an element the use, attempted use, or threatened use of
physical force against the person of another [“the use-of-force clause”], or is
[generic] burglary, arson, or extortion, or involves the use of explosives [“the
enumerated offenses clause”], or otherwise involves conduct that presents a
serious potential risk of physical injury to another [“the residual clause”].” 18
U.S.C. § 924(e)(2)(B).
After Moody’s sentencing, the Supreme Court declared that the so-called
“residual clause,” covering offenses with a serious potential risk of physical injury,
was unconstitutionally vague and made its ruling retroactively applicable on
collateral review. See Welch, 136 S. Ct. at 1257 (2016) (citing Johnson, 135 S. Ct.
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Regarding Moody’s conviction for Alabama burglary in the third degree, the
law is now clear that Alabama burglary in the third degree does not qualify under
any of the ACCA’s three definitions of violent felony. First, the conviction does
not qualify under the “use-of-force” clause of the ACCA. The Alabama statute
criminalizes “knowingly enter[ing] or remain[ing] unlawfully in a building with
intent to commit a crime therein.” Ala. Code § 13A–7–7(a). The definitions of
terms used in that statute are found in § 13A–7–1 (1983). The Eleventh Circuit has
held that “based on these definitions, read together with § 13A–7–7(a), the crime
does not ‘ha[ve] as an element the use, attempted use, or threatened use of
physical force against the person of another. § 924(e)(2)(B)(i).’” Nelson, 813 F.3d
The Eleventh Circuit has also held that Alabama third-degree burglary does
not qualify under the “enumerated offenses” clause of the ACCA. Nelson, 813 F.3d
at 982 (citing United States v. Howard, 742 F.3d 1334, 1349 (11th Cir. 2014)). The
precedent for this conclusion begins with the case of Descamps v. United States,
___ U.S. ___, 133 S. Ct. 2276 (2013), in which the Supreme Court held that a
conviction for burglary in violation of California Penal Code § 459 is broader than
“generic burglary” and therefore does not qualify as “burglary” under the
enumerated-offenses clause of the ACCA’s “violent felony” definition, 18 U.S.C.
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§ 924(e)(2)(B)(ii). 1 The Court further held that the modified categorical approach
adopted in Taylor, 495 U.S. at 598, and refined in Shepard v. United States, 544 U.S.
13, 125 S. Ct. 1254 (2005), may not be applied to an indivisible statute such as §
459.2 The rule of Descamps is that “sentencing courts may not apply the modified
categorical approach when the crime of which the defendant was convicted has a
single, indivisible set of elements.” 133 S. Ct. at 2282. In Howard, 742 F.3d at 1349,
the Court of Appeals for the Eleventh Circuit held that Alabama’s statute defining
third-degree burglary “is non-generic and indivisible.” As a result, under
Descamps, a conviction for third-degree burglary in Alabama “cannot qualify as
generic burglary under the ACCA.” Howard, 742 F.3d at 1349 (citing Descamps, 133
S. Ct. at 2292).
Finally, the Eleventh Circuit Court of Appeals has held that, because the
Supreme Court had “declared the residual clause of the ACCA to be
unconstitutionally vague,” there is no “basis for characterizing the Alabama third
In Taylor v. United States, the Supreme Court had held that burglary, for ACCA purposes,
means generic burglary, i.e., an offense with the following elements: “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495
U.S. 575, 598 (1990).
The “modified categorical” approach referred to the procedure in which the sentencing courts
may look to certain approved documents, called Shepard documents, to determine whether a
defendant was found guilty of the elements of generic burglary. See United States v. Lockett, 810
F.3d 1262, 1266 (11th Cir. 2016) (citing Shepard, 544 U.S. at 13).
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degree burglary statute as a violent felony under the ACCA.” Nelson, 813 F.3d at
982 (citation omitted). Thus, Moody’s third-degree burglary conviction does not
qualify as a violent felony under the ACCA.
Without the third degree burglary conviction counting as an ACCA
predicate offense, Moody does not have three prior convictions for “violent
felonies.”3 Because Moody is not an Armed Career Criminal, his sentence of 180
months exceeds the 120-month maximum authorized by 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). He is due to be resentenced without enhanced penalty under the
provisions of the ACCA.
Having now carefully reviewed and considered the § 2255 motion and the
United States’s response to it, and having independently examined the entire
record in Moody’s criminal case, it is hereby ORDERED and ADJUDGED that
the motion for § 2255 relief be and hereby is GRANTED, and Moody’s sentence
in United States v. Moody, 1:05-cr-00195-LSC-SRW-1, is hereby VACATED. By
separate order in Moody’s criminal case, the Court will set a new sentencing
hearing for Moody.
This action is DISMISSED WITH PREJUDICE.
As such, the Court need not address Moody’s argument that his Florida burglary conviction
similarly no longer qualifies as a “violent felony” under the ACCA.
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DONE and ORDERED on August 3, 2016.
L. Scott Coogler
United States District Judge
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