Northcutt v. United States of America (INMATE 3)

Filing 24

MEMORANDUM OPINION AND ORDER: a ruling on Petitioner Terry Don Northcutt's 1 motion to vacate, set aside, or correct his sentence is held in abeyance pending additional briefing from the parties; DIRECTING the government to file a brief on the issues set out in this opinion, and on any other issues it deems relevant to resentencing; The government's brief shall be filed on or before 10/7/2016; DIRECTING Northcutt to file a response on or before 10/14/2016. Signed by Chief Judge William Keith Watkins on 9/26/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TERRY DON NORTHCUTT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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) CASE NO. 2:14-CV-242-WKW
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[WO]
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MEMORANDUM OPINION AND ORDER
Before the court is Petitioner Terry Don Northcutt’s 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence, which was enhanced under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). This is Northcutt’s first § 2255
motion, and it includes a claim under Johnson v. United States, 135 S. Ct. 2551
(2015), and Welch v. United States, 136 S. Ct. 1257 (2016). For the reasons that
follow, Northcutt’s § 2255 motion will be held in abeyance pending further briefing
on his Johnson claim.
I. BACKGROUND
Northcutt pleaded guilty to one count of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) pursuant to a plea agreement. According
to the presentence investigation report (“PSR”), Northcutt had four prior
convictions, at least three of which subjected him to an ACCA sentencing

enhancement. (PSR, at ¶ 23.) Based on the Sentencing Guidelines governing armed
career criminals under the ACCA, Northcutt received an enhancement in his base
offense level from level 22 to level 33 and a boost in his criminal history calculation
from category III to category IV.1 (PSR, at ¶¶ 23, 39); U.S.S.G. §§ 4B1.4(b)(3)(B),
4B1.4(c) (2012). He did not receive a reduction for acceptance of responsibility
under § 3E1.1 of the Sentencing Guidelines because he absconded while on pre-trial
electronic monitoring. Based on a total offense level of 33 and a criminal history
category of IV, Northcutt’s guidelines range was from 188 to 235 months. Northcutt
objected to the PSR’s determination that he qualified for an ACCA-enhanced
sentence.
At the sentencing hearing held on May 9, 2013, the court overruled
Northcutt’s objection to the ACCA enhancement. (Sentencing Tr., at 33–36 (Doc.
# 8-5).) It found that Northcutt had four predicate Alabama convictions that
qualified as violent felonies under the ACCA: (1) second-degree burglary;
(2) assault with intent to murder; (3) first-degree assault; and (4) second-degree
escape.2

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Ultimately, Northcutt was sentenced to 180 months, which was the

The PSR’s calculations used the 2012 edition of the Guidelines Manual. (PSR, at ¶ 16.)

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Although the court found that the conviction for second-degree escape qualified as a
violent felony, it observed that the other three convictions supported the § 924(e) enhancement
even without the escape conviction. (Sentencing Tr., at 37.)
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sentence to which the parties agreed in the plea agreement negotiated under Federal
Rule of Criminal Procedure 11(c)(1)(C).
Northcutt appealed his sentence. He argued, among other things, that his
sentence enhancement under the ACCA was erroneous because the government
failed to establish with reliable documents that he was in fact convicted of the ACCA
predicate convictions. The Eleventh Circuit rejected that argument and affirmed the
judgment and the ACCA-enhanced sentence.
In April 2014, Northcutt filed this § 2255 motion, arguing that his sentencing
counsel was ineffective for conceding that his prior Alabama conviction for seconddegree burglary, in violation of § 13A-7-6 of the Code of Alabama, was a violent
felony for purposes of the ACCA. The next year, in Johnson v. United States, 135
S. Ct. 2551 (2015), the Supreme Court held that the ACCA’s residual clause is
unconstitutionally vague. Johnson reasoned: “[T]he indeterminacy of the wideranging 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. And in Welch v. United
States, 136 S. Ct. 1257 (2016), the Supreme Court held that Johnson announced a
new substantive rule of constitutional law that applies retroactively in cases on
collateral review.

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After the Supreme decided Johnson and Welch, Northcutt was permitted to
amend his § 2255 motion to add a claim that his sentence was improperly enhanced
under the ACCA’s residual clause (“Johnson claim”). Responding to the Johnson
claim, the government “concedes that Northcutt should be resentenced” because his
second-degree burglary conviction is not a qualifying ACCA predicate conviction,
and it contends further that it will not “seek to enhance Northcutt’s sentence” under
the ACCA.3 (Doc. # 19, at 1.) On either of his alternative claims, Northcutt requests
the court to vacate his sentence and to resentence him without application of the
ACCA. This Order addresses Northcutt’s Johnson claim.
II. DISCUSSION
Northcutt received a 180-month sentence on his § 922(g)(1) conviction for
being a felon in possession of a firearm. 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
previous convictions for a violent felony, a serious drug offense, or both, is subject
to a fifteen-year minimum sentence. § 924(e)(1). The ACCA defines 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

Responding to Northcutt’s initial § 2255 motion, the government contended that at a
resentencing hearing, it would rely on the escape conviction as establishing the third predicate
conviction for purposes of the ACCA. It now has abandoned that argument based upon Johnson.
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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.” § 924(e)(2)(B). These definitions of “violent felony”
fall into three respective categories: (1) the elements clause; (2) the enumeratedcrimes clause; and (3) and the residual clause. See In re Sams, No. 16-14515-J, ___
F.3d ___, 2016 WL 3997213, at *2 (11th Cir. July 26, 2016). The residual clause is
unconstitutionally vague in light of Johnson; hence, in order for a prior conviction
to qualify as a “violent felony” under the ACCA, it must satisfy the definition of
either § 924(e)(2)(B)’s elements clause or enumerated-crimes clause.
Northcutt contends that his sentence was improperly enhanced under the
ACCA’s residual clause. He appears to contend that after Johnson, none of his four
prior Alabama convictions qualifies as a violent felony under the ACCA.4 (Doc.
# 17, at 2.)
Because the ACCA’s residual clause now is void, Northcutt is correct that his
1985 Alabama conviction for escape in the second degree no longer qualifies as a
predicate conviction under the ACCA. Section 13A-10-32 of the Alabama Code
defines escape in the second degree as an “escape[ ] or attempt[ ] to escape from a

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Northcutt proceeded pro se until June 21, 2016, when the Federal Defender was appointed
to represent him. (Doc. # 20.) Because he filed his pleadings pro se, they are construed liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007 (per curiam).
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penal facility.”5 § 13A–10–32(a) (1975). This crime does not include as an element
the use of force, the attempt to use force, or threats to use force against a person.
The crime also is not listed in the enumerated-crimes clause; escape in the second
degree is not burglary, arson, or extortion and does not involve the use of explosives.
While Northcutt’s prior conviction for escape in the second degree does not count
as a violent felony under the ACCA’s definitions that are unaffected by Johnson, he
still has three other predicate convictions upon which the sentencing court relied to
enhance his sentence under the ACCA.
The government contends that Northcutt’s Alabama 1972 conviction for
second-degree burglary is not a valid a predicate crime under the ACCA based upon
the Supreme Court’s holding in Descamps v. United States, 133 S. Ct. 2276 (2013),
and the Eleventh Circuit’s application of Descamps in United States v. Howard, 742
F.3d 1334 (11th Cir. 2014). Descamps held that a sentencing court may not consider
extra-statutory materials of the sort approved by the Supreme Court under the
“modified categorical approach” developed in Taylor v. United States, 495 U.S. 575
(1990), and Shepard v. United States, 544 U.S. 13 (2005), when determining whether
a conviction under an “indivisible” criminal statute qualifies as an ACCA predicate
offense under the enumerated-crimes clause. See id. at 2285–86. Descamps applies

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The statute in effect when Northcutt was convicted of escape in the second degree has
remained unchanged since 1975.
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retroactively “in the first post-conviction context,” Mays v. United States, 817 F.3d
728, 730 (11th Cir. 2016) (per curiam), and, in this case, the Eleventh Circuit cited
Descamps in its opinion affirming Northcutt’s ACCA sentence.6
The Eleventh Circuit in Howard applied Descamps to Alabama’s third-degree
burglary statute, Ala. Code § 13A-7-7, as that statute existed from 1979 to 2015.
Howard held that Alabama’s third-degree burglary statute was “non-generic”
because the definition of “building” included things such as vehicles and aircraft,
which are outside the scope of generic burglary. Howard, 742 F.3d at 1348; see also
Ala. Code § 13A-7-1 (defining “building” for burglary crimes). It further held that
the statute is “indivisible” because under Descamps, the property items included in
the definition of “building” were “not alternative elements” of the offense of thirddegree burglary. Id. (citing Descamps, 133 S. Ct. at 2292). The Eleventh Circuit
concluded that, because the statute was non-generic and indivisible, “a conviction
under Alabama Code § 13A-7-7 cannot qualify as generic burglary under the
ACCA” and, thus, is not a predicate offense under the ACCA’s enumerated-crimes
clause. Howard, 742 F.3d at 1349 (citing Descamps, 133 S. Ct. at 2292); see also
Mays, 817 F.3d at 733 (reiterating that under Descamps, “a conviction for third
Descamps was decided during the pendency of Northcutt’s direct appeal; however, the
circuit did not address the issue that Northcutt now presents, namely, whether after Descamps,
Northcutt’s second-degree burglary conviction qualifies as a violent felony under the ACCA’s
enumerated-crimes clause. The issue on appeal focused on whether the government had submitted
sufficient documentation to prove the “fact of [Northcutt’s] predicate convictions.” (Doc. # 99,
at 2, 8, filed in 2:14cr32-WKW.)
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degree burglary cannot qualify as a violent felony under the enumerated clause
because Alabama Code § 13A-7-7 is an indivisible, non-generic statute” (citing
Howard, 742 F.3d at 1348–49)).
While Alabama’s second-degree burglary statute, in its present form, shares
the same definition of “building,” which covers property that is not within the scope
of generic burglary (such as vehicles and aircraft), see Ala. Code § 13A-7-1,
Northcutt’s conviction was in 1972. Section 13A-7-6’s predecessor in 1972 was
substantially different. The government has not submitted any reasoned analysis of
how Descamps and Howard affect the 1972 Alabama statute criminalizing seconddegree burglary.

It merely concedes that Northcutt’s second-degree burglary

conviction “is not a valid predicate crime for ACCA.” (Doc. # 19, at 1; see also
Doc. # 8, at 29 (asserting in blanket fashion that it “cannot defend Northcutt’s
sentence against the fundamental claim that this Court wrongly used a conviction in
the State of Alabama for second-degree burglary to enhance his sentence under the
ACCA”).
The government’s concession is not responsive to the Magistrate Judge’s
Order entered on April 22, 2016, directing the government to
address whether Northcutt’s 1972 Alabama conviction for seconddegree burglary constitutes a “violent felony” for purposes of the
ACCA in light of the definition of second-degree burglary under
Alabama law in effect when he was convicted of that offense (see
discussion of statutory language of offense of second-degree burglary
in, e.g., Foreman v. State, 546 So. 2d 977 (Ala. Crim. App. 1986)) and
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in light of the Eleventh Circuit’s opinion in Northcutt’s direct appeal
referencing Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276
(2013), and affirming Northcutt’s sentence under the ACCA. See
United States v. Northcutt, 554 Fed. App’x 875, 878–79 (11th Cir.
2014).
(Doc. # 18, at 2.)
The government has submitted no authority that this court is obligated to
accept its concession as to the applicability of the ACCA to the predicate conviction
of second-degree burglary. The legal issues surrounding whether the ACCA applies
to Northcutt are substantial, and the court intends to resolve those issues based on
the law, and not on a government concession. Accordingly, the government will be
ordered to file a brief that analyzes the issues presented in the Magistrate Judge’s
April 22, 2016 Order, notwithstanding its concession, and to submit a copy of the
Alabama’s second-degree burglary statute under which Northcutt was convicted.
The government’s brief should include specific discussion on whether the
enumerated-crimes clause or the elements clause applies to the second-degree
burglary statute under which Northcutt was convicted. As to the discussion on the
enumerated-crimes clause, the government should address whether the statute at
issue is divisible or indivisible. Additionally, because Northcutt appears to argue
that, after Johnson, his Alabama convictions for assault with intent to murder and
first-degree assault no longer qualify as predicate ACCA convictions, the

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government also should address the application of the ACCA to these two
convictions. Northcutt will be permitted to file a response.
III. CONCLUSION
For the foregoing reasons, a ruling on Petitioner Terry Don Northcutt’s
motion to vacate, set aside, or correct his sentence (Doc. # 1) is held in abeyance
pending additional briefing from the parties. The government is DIRECTED to file
a brief on the issues set out in this opinion, and on any other issues it deems relevant
to resentencing. The government’s brief shall be filed on or before October 7, 2016.
Northcutt is DIRECTED to file a response on or before October 14, 2016.
DONE this 26th day of September, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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