Pearson v. United States of America
MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/29/2017. (KAM, )
2017 Jun-30 PM 12:38
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
RODERICK CORLION PEARSON,
UNITED STATES OF AMERICA,
Case No.: 2:16-cv-08068-RDP
This case is before the court on Petitioner’s Motion to Vacate Under 28 U.S.C. § 2255.
(Civil Docket, Doc. # 1).1
The court appointed the Federal Public Defender to represent
Petitioner, and the Public Defender has filed a supplement to the § 2255 motion. (Civil Docket,
Doc. # 6). Respondent has filed a brief addressing Petitioner’s claims (Civil Docket, Doc. # 8),
and the motion to vacate is now under submission. After careful review, and for the reasons
explained below, Petitioner’s motion to vacate is due to be granted in part and denied in part.
Factual Background and Procedural History
On May 7, 2007, Petitioner pled guilty to: (1) one count of armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d) (“Count Three”); (2) one count of brandishing a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(C)(i) (“Count
Four”); and (3) one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (“Count Five”). (See Criminal Docket, Second Minute Entry dated May 7, 2007).
(See also Criminal Docket, Doc. # 51 at 4-5) (describing the charges in the indictment and the
This opinion refers to Case Number 2:16-cv-08068-RDP as the “Civil Docket” and Case Number 2:07cr-00072-RDP-SGC as the “Criminal Docket.”
guilty plea to three of the five charges filed against Petitioner). A jury then convicted Petitioner
of a second count of armed bank robbery (“Count One”) and a second count of brandishing a
firearm during and in relation to a crime of violence (“Count Two”). (Criminal Docket, Doc. #
27). (See also Criminal Docket, Doc. # 51 at 4-5).
Petitioner’s Presentence Investigation Report (“PSR”) recommended that Counts Three
and Five be considered a separate offense group from Count One.2 (See PSR at ¶¶ 19-32). After
a multiple-count adjustment, the PSR calculated a total offense level of 26 for Counts One,
Three, and Five. (Id. at ¶¶ 34-41). Then, it enhanced Petitioner’s offense level to 34, pursuant to
the career offender guideline, U.S.S.G. § 4B1.1, because (a) the offenses at issue were crimes of
violence, (b) Petitioner was over 18 years old when he committed the offenses at issue, and (c)
Petitioner previously had been convicted of two crimes of violence. (Id. at ¶ 42). According to
the PSR, Petitioner’s prior convictions for crimes of violence included attempted robbery and
discharging a firearm into an unoccupied vehicle. (Id.). Moreover, the PSR stated that Petitioner
was an armed career criminal and subject to the mandatory minimum sentence in 18 U.S.C.
§ 924(e) -- otherwise known as the Armed Career Criminal Act (“ACCA”) -- for his § 922(g)(1)
conviction. (Id. at ¶ 46). Ultimately, the PSR recommended a total guideline range of 646 to
711 months’ imprisonment for all five counts. (Id. at ¶¶ 44-45, 87).
Petitioner objected to several aspects of the PSR’s guideline calculation. (Criminal
Docket, Doc. # 28). Among other objections, he first argued that the PSR incorrectly applied a
career offender enhancement because his conviction for discharging a firearm into an unoccupied
vehicle was not a crime of violence. (Id. at 1). Second, he claimed that his attempted robbery
conviction was not a crime of violence because he had acted as an accomplice during the
The PSR did not calculate an offense level for Counts Two and Four because the guideline range
sentence for those convictions was determined by the statutory minimum sentence. (PSR at ¶ 19).
attempt. (Id. at 2). Third, he argued that the PSR incorrectly calculated the guideline range for
Count Five (the § 922(g) conviction) because he had not been previously convicted of a crime of
violence. (Id.). Finally, Petitioner claimed that his mandatory minimum sentence should only
have been seven years’ imprisonment because Counts Two and Four were his first § 924(c)
convictions. (Id. at 3).
At sentencing, the court overruled Petitioner’s objections to the crimes of violence used
to justify the career offender enhancement. (Criminal Docket, Doc. # 40 at 30-31). The court
adopted the PSR’s guideline range of 646 to 711 months’ imprisonment. (Id. at 31). Also, it
found that Petitioner was subject to the enhanced mandatory minimum sentence in the ACCA for
Count Five because he had been convicted of three separate violent felonies. (Id. at 31-32). But,
the court granted Petitioner a substantial downward variance from the guideline range. (Id. at
I am going to vary down as my authority under Booker allows me to do to a
sentence of 180 months as to Counts One, Three and Five separately with each
count to run concurrently. . . .
As to Count Two, the defendant shall be imprisoned for a term of 84 months. As
to Count Four, he shall be imprisoned for a term of 300 months. And the sentence
in Count Two and Count Four shall run consecutively to the sentences imposed in
Counts One, Three and Five and consecutive with each other.
The court acknowledged that a 564-month imprisonment sentence amounted to “a
tremendous amount of time,” but it was the minimum sentence Petitioner could receive for his
convictions. (Id. at 40). Following objections from Petitioner’s and Respondent’s attorneys, the
court explained why the sentence was reasonable:
THE COURT: I do think the sentence is reasonable. I think it was largely driven
by the consecutive sentences required for the crime of the 924 violations
obviously, but I do think it's reasonable under the circumstances, in light of
particularly the effects on the victims, the multiple bank robberies that occurred
within a close time, although they're not due to be grouped. And also I think the
variance is reasonable, because I think the sentence imposed is reasonable in light
of the conduct you've engaged in. I really tried to hit the right mark on finding a
sentence that's sufficient but not greater than necessary to achieve the statutory
purposes of sentencing, and I think the 564 months does that. I think 646 months,
I think that extra time would not achieve the statutory purposes of sentencing and
would not -- it would essentially be too great a punishment in this case.
(Id. at 43-44).
On appeal, the Eleventh Circuit affirmed Petitioner’s convictions and sentences.
(Criminal Docket, Doc. # 51 at 13). The Eleventh Circuit rejected Petitioner’s claim that a
conviction for discharging a firearm into an unoccupied vehicle did not qualify as a crime of
violence under the Sentencing Guidelines. (Id. at 9-11). Relying on an earlier unpublished
opinion, the Eleventh Circuit explained that such a conviction was a crime of violence because
“discharging a firearm into a dwelling -- occupied or unoccupied -- involved a potential risk of
physical injury.” (Id. at 10) (citing United States v. Rabb, 248 F. App’x 133, 134 (11th Cir.
In 2009, Petitioner filed a motion to vacate under § 2255. (Case No. 2:09-cv-08041RDP-PWG, Doc. # 1). Among other things, Petitioner claimed that the court erroneously
sentenced him to a mandatory minimum sentence under the ACCA because he was actually,
factually, and legally innocent of the predicate violent felonies used to justify that sentence. (Id.
at 12). A Magistrate Judge recommended denying the claim because he found that Petitioner had
not been sentenced under the ACCA.3 (Case No. 2:09-cv-08041-RDP-PWG, Doc. # 13 at 1112).
After reviewing Petitioner’s objections, the court affirmed the Magistrate Judge’s
recommendation to deny Petitioner’s initial motion to vacate. (Case No. 2:09-cv-08041-RDP-
The court recognizes that Petitioner was sentenced to a mandatory minimum sentence under the ACCA,
notwithstanding the Magistrate Judge’s finding in his Report and Recommendation. (Criminal Docket, Doc. # 40 at
PWG, Doc. # 15). The Eleventh Circuit ultimately dismissed Petitioner’s appeal for a failure to
prosecute. (Case No. 2:09-cv-08041-RDP-PWG, Doc. # 28).
In May 2016, the Eleventh Circuit granted Petitioner leave to file a second or successive
motion to vacate under § 2255 to challenge his ACCA mandatory minimum sentence. (Civil
Docket, Doc. # 6-1 at 2, 5). The Eleventh Circuit found that the predicate violent felonies
supporting the court’s application of the ACCA were (1) discharging a firearm into an
unoccupied vehicle in Alabama, (2) attempted robbery in Virginia, and (3) conspiracy to commit
robbery in Virginia. (Id. at 4). The Eleventh Circuit explained that the Supreme Court’s opinion
in Johnson v. United States, 135 S. Ct. 2551 (2015), might provide relief to Petitioner because
the Eleventh Circuit had relied on the career offender guideline’s residual clause during his direct
appeal to determine that discharging a firearm into an unoccupied vehicle was a crime of
violence. (Id.). Moreover, the Eleventh Circuit determined that the other two violent felonies
used to justify the ACCA enhancement were “suspect.” (Id.).
Through counsel, Petitioner raises three arguments for relief in his current motion to
vacate. First, he argues that his sentence for Count Five exceeds the statutory maximum because
the court erroneously enhanced that sentence under the ACCA. (Civil Docket, Doc. # 6 at 7-12).
Petitioner claims that neither conspiracy to commit robbery nor discharging a firearm into an
unoccupied vehicle can be classified as a violent felony following the Supreme Court’s Johnson
opinion. (Id. at 9-12). Second, Petitioner claims that the court should set aside his sentences for
Counts One and Three because the court imposed a sentence package for Counts One, Three, and
Five based on the ACCA minimum sentence. (Id. at 12-13). Finally, Petitioner argues that his
sentences for Counts One and Three should be vacated because he no longer qualifies as a career
offender following Johnson. (Id. at 13-21).
A federal prisoner may file a motion to vacate his or her sentence “upon the ground that
the sentence was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
It is well settled that “to obtain collateral relief[,] a prisoner must clear a significantly higher
hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982).
Petitioner is Entitled to Habeas Relief for His ACCA-Enhanced Sentence for
Petitioner argues in his counseled motion that his ACCA-enhanced sentence exceeds the
statutory maximum because two of the three predicate violent felonies cannot be classified as
violent felonies following Johnson. The government concedes that Petitioner’s conviction for
shooting into an unoccupied vehicle no longer qualifies as a violent felony under the ACCA.
(Doc. # 8 at 4). In light of this concession, and the court’s independent review of the sentencing
transcript, the court agrees that Petitioner’s conviction for shooting into an unoccupied vehicle
was classified as a violent felony under the ACCA’s residual clause. Therefore, Petitioner is
entitled to vacatur of the sentence for Count Five and resentencing on that count. See Welch v.
United States, 136 S. Ct. 1257, 1265 (2016) (holding that the Johnson opinion is “a substantive
decision” that is retroactively applicable to cases on collateral review under Teague v. Lane, 489
U.S. 288 (1989)).
Petitioner is Entitled to Resentencing on Counts One and Three Because the
Court’s Sentencing Package for Counts One, Three, and Five Relied on the
ACCA-Enhanced Mandatory Minimum Sentence
Petitioner also argues that the court should vacate the imprisonment sentences it imposed
for Counts One and Three, along with the ACCA-enhanced sentence for Count Five, because the
concurrent sentences for Counts One, Three, and Five were based on a sentencing package.
(Doc. # 6 at 12-13). The government has not objected to this argument for relief. (See Doc. # 8
at 5) (“[T]he government will not object if this [c]ourt determines that the sentences were
imposed as a package and, on that basis, vacates the bank-robbery sentences as well.”).
The sentencing package doctrine allows a district court to revisit the sentences for all
interdependent counts after a defendant successfully attacks the sentence of some but not all
counts within that package. Sewell v. United States, 2016 WL 6986507, at *1 (M.D. Ala. Nov.
28, 2016) (citing United States v. Fowler, 749 F.3d 1010, 1017 (11th Cir. 2014)). “This doctrine
applies whether the resentencing occurs in a § 2255 proceeding or on remand from a direct
appeal.” Id. A defendant’s sentences are sufficiently interdependent to apply the sentencing
package doctrine if the district court viewed the original sentence as a package. Fowler, 749
F.3d at 1017.
Here, the court plainly considered the sentences for Counts One, Three, and Five to be
part of the same sentencing package when it imposed Petitioner’s imprisonment sentences. The
court grouped the sentences for Counts One, Three, and Five together when it granted a
downward variance to Petitioner.4 (Doc. # 40 at 39). In hindsight, the court concludes that
sentencing package was off the mark because the ACCA enhancement for Count Five’s sentence
was based on the now-void residual clause. Under the sentencing package doctrine, resentencing
on Counts One, Three, and Five is the appropriate form of relief.
Petitioner’s Challenge to His Career Offender Enhancement Fails Under
Current Supreme Court Precedent
In his third claim, Petitioner insists that the residual clause in the career offender
guideline is void for vagueness because (a) it is identical to the ACCA’s residual clause, and (b)
The consecutive sentences Petitioner received for Counts Two and Four were mandatory minimum
sentences for his separate brandishing offenses.
the Supreme Court declared the ACCA’s residual clause unconstitutionally vague in Johnson.
(Doc. # 6 at 13-19). After the parties briefed this motion to vacate, the Supreme Court held that
the residual clause in U.S.S.G. § 4B1.2(a) is not void for vagueness because “the advisory
Sentencing Guidelines are not subject to a due process vagueness challenge.” Beckles v. United
States, 137 S. Ct. 886, 897 (2017). Under Beckles, Petitioner’s vagueness challenge to the career
offender guideline is due to be denied.
Petitioner’s motion to vacate is due to be granted in part and denied in part. His
imprisonment sentences for Counts One, Three, and Five are due to be vacated. But, his
challenge to the career offender enhancement used to calculate his guideline range is due to be
denied. An order consistent with this Memorandum Opinion will be entered.
DONE and ORDERED this June 29, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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