Oden v. United States of America
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/15/2017. (JLC)
2017 Nov-15 PM 02:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHRISTOPHER EARL ODEN,
UNITED STATES OF AMERICA,
Case No.: 2:16-cv-8060-VEH
On June 14, 2016, Christopher Earl Oden filed with a counseled motion
pursuant to 28 U.S.C. §2255. (Doc. 1). He asks this court to vacate the sentence
imposed upon him on September 25, 2012, in case 2:12-CR-201-JHH-RRA1. (Crim.
Doc. 12). Mr. Oden was found guilty of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). (Id.). At sentencing, the court applied the Armed
Career Criminal Act ("ACCA")2 enhancement based upon its finding that Mr. Oden
had three or more prior convictions that qualified as "violent felonies" under the
ACCA. Without that enhancement, the statutory maximum sentence authorized by
The sentencing judge has since retired. This matter was randomly assigned to the undersigned
18 U.S.C. § 924(e).
law (absent other statutory provisions, none of which are at issue in this case) was
At the parties' joint request (Doc. 5), this Court stayed this action on July 19,
2016, pending a decision by the Eleventh Circuit Court of Appeals in either of the
following cases: United States v. Heard, No. 15-10612, or United States v. Gundy, No.
14-13113. The Eleventh Circuit decided United States v. Gundy, 842 F.3d 1156 (11th
Cir. 2017) in a published opinion issued on February 22, 2017. On February 23, 2017,
the Government notified the Court of the Gundy decision. (Doc. 7). The Court lifted
the stay and ordered Mr. Oden to show cause why his petition should not be
dismissed or denied in light of that decision. (Doc. 8). Mr. Oden replied on March
13, 2017. (Doc. 9). However, on June 16, 2017, the parties advised the Court that a
petition for writ of certiorari as to the Gundy decision was pending before the
United States Supreme Court and asked this Court to further stay this action pending
a decision by the Supreme Court. (See Docs. 11 and 13). The Court agreed and
accordingly stayed this action again. (Doc. 14). On October 4, 2017, the
Government advised this Court that the Gundy petition had been denied. (Doc. 15).
On November 6, 2017, the Court ordered the parties to show cause why the stay
should not be lifted and to file any remaining arguments. (Doc. 16). The parties have
now done so. (Docs. 17 and 18). The matter is therefore ripe for submission.
The premise for Mr. Oden's motion is that application of the ACCA
enhancement to him was error in light of the Supreme Court's decision in Johnson v.
United States, 135 S. Ct. 2551 (2015), as made retroactively applicable by Welch v.
United States, 136 S. Ct. 1257 (2016). (Doc. 1 at 3)("In light of Johnson v. United
States [...] and Welch v. United States [...], Mr. Oden is entitled to be resentenced
without the ACCA enhancement because his Alabama and Georgia burglary
convictions no longer qualify as violent felonies.").
THE UNDERLYING CRIMINAL CASE3
The Underlying Criminal Case. In May 2012, Mr. Oden was charged
with one count of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). (Crim. Doc. 1).
He pleaded guilty to the charge in June 2012. (Crim. Doc. 9.)
The Presentence Investigation Report (“PSR”) recommended
that Mr. Oden’s sentence be enhanced under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). (PSR, ¶ 17). The
ACCA provides for an increased sentence for a defendant who is
convicted under 18 U.S.C. § 922(g)(1) and has three prior
violent felony or serious drug offense convictions. The PSR
counted the following convictions as violent felonies for
application of the ACCA:
2005 Alabama burglary, third degree, id. ¶¶ 19, 31;
2007 Georgia burglary (four counts), id. at ¶¶ 19, 32.
Without the ACCA enhancement, the maximum sentence Mr.
This section is copied verbatim from the motion (including numbering), as it is not disputed
by the Government and it is consistent with the court record.
Oden could have received was 10 years (120 months). See 18
U.S.C. § 924(a)(2). However, as an armed career criminal, he
faced a mandatory minimum 15-year (180-month) sentence and
a statutory maximum sentence of life. See 18 U.S.C. § 924(e)(1).
The Court sentenced Mr. Oden to 172 months and 20 days in
prison, which included credit for 15 months and 10 days he had
served related to Jefferson County, Alabama case CC-11-4420.
(Crim. Doc. 12.)
Direct Appeal. Mr. Oden did not appeal his conviction or sentence.
Post-Conviction Litigation. The instant motion is Mr. Oden’s first
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
Mr. Oden initially argued that none of Mr. Oden's burglary convictions (one
under Alabama law and four under Georgia law) qualify, after Johnson, as violent
felonies under the ACCA and thus he should be resentenced without application of
the ACCA enhancement. (Doc. 1). However, in light of the intervening binding
decision of the Eleventh Circuit Court of Appeals in United States v. Gundy, 842
F.3d 1156 (11th Cir. 2017), he now argues he "does not disagree with the
government's description of Gundy or his PSR and leaves the merits of the § 2255
claim to the Court in light of Gundy." (Doc. 9 at 5; see also Doc. 18).4 In sum,
because Mr. Oden had four Georgia burglary convictions, at this point the parties
Further, the Government has stated that the petition is timely and in any event has
affirmatively waived any timeliness defense. (Doc. 11).
are not arguing about Mr. Oden's singular Alabama burglary conviction or any
In Gundy, the Eleventh Circuit Court of Appeals that held that Georgia
burglary is divisible into generic and nongeneric forms of burglary, so that a
conviction for Georgia burglary may be deemed a conviction for generic burglary
i.e., unlawfully entering a building or structure with the intent to commit a theft, if
the conviction is supported by Shepard documents. United States v. Gundy, 842
F.3d at 1166-69. As set out in the PSR and adopted by the Court, each of Oden's
four Georgia burglary are convictions for generic burglary because the indictments
for each of those convictions all charged him with burglarizing traditional
"buildings," i.e. T&D Mechanical, Inc. and Tom's Foods, Inc. See PSR, ¶ 32
(reviewing indictments). Accord Gundy, 842 F. 3d at 1168-69 (looking to
indictments to conclude that Gundy was convicted of generic robbery under Georgia
law). Because Oden has four qualifying violent-felony predicate offenses, his
sentence was validly enhanced under the ACCA.
Because Oden has, after retroactive application of the holding in Johnson,
four prior convictions for Georgia burglary that qualify as predicate convictions for
purposes of the ACCA enhanced penalty, his motion is due to be, and hereby is,
DENIED. This case will be DISMISSED WITH PREJUDICE. Additionally, the
Court finds that Oden is not entitled to a certificate of appealability.
A prisoner seeking a motion to vacate has no absolute entitlement to appeal a
district court's denial of his petition. See 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (“COA”). Id. “A [COA] may
issue ... only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. at § 2253(c)(2). To make such a showing, defendant “must
demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further.’ ” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n. 4 (1983)). Oden has not made the requisite showing in these circumstances.
DONE and ORDERED this the 15th day of November, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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