Brown v. UNITED STATES OF AMERICA

Filing 10

ORDER adopting re 8 Report and Recommendations. The Clerk is directed to enter the appropriate judgment. The U.S. Probation Office is directed to prepare a new presentence investigation report. The Clerk is therefore directed to prepare the appropriate appointment papers. Signed by Judge B. Avant Edenfield on 9/15/10. (bcw)

Brown v. UNITED STATES OF AMERICA

Doc. 10

FILED UNITED STATES DISTRICT COURT FOR THE U.S. Oi$iRjcr COURT SAVAut p OW. SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION I910SEPI5 P112:22 JERROD BROWN, Movant,
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DIS1 OF GA.

CV 409-070 (CR 404-111)

UNITED STATES OF AMERICA, Respondent.

ORDER Currently before the Court is Jerrod Brown's 28 U.S.C. § 2255 motion. (CV Doc. 1) In that motion, Brown claims that he was improperly sentenced as an armed career criminal. See 18 U.S.C. § 924(e). Specifically, he contends that his prior felony conviction for carrying a concealed weapon does not qualify as a predicate "violent felony" for the armed career criminal enhancement, citing v. Begy. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008). Brown asks to be resentenced without that enhancement. Brown's motion is timely, having been filed within one year of the Supreme Court's decision in Begay, that decision initially recognizing the substantive rule Brown seeks to assert. See 28 U.S.C. § 2255(f)(3); Teague v. Lane, 489 U.S. 288, 311(1989). Brown failed to raise his claim on direct appeal, so typically it would

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be procedurally defaulted. See United States v. Frady , 456 U.S. 152, 170 (1982). However, the government concedes (CV Doe. 7-Pg. 3) that Brown can establish an exception to procedural default because he is "actually innocent" of the statutory armed career criminal enhancement. See Bousle y v. United States, 523 U.S. 614, 623 (1998); Murray v. Carrier, 477 U.S. 478, 496 (1986). This Court agrees, and Brown's claim may therefore be heard on its merits. Brown is entitled to the relief he requests, as the government concedes. (CV Doe, 7-Pgs. 2-3) Brown's prior felony conviction for carrying a concealed weapon no longer qualifies as a predicate "violent felony" for the armed career criminal enhancement. See United States v. Canty , 570 F.3d 1251, 1255 (1 ltf Cir. 2009); United States v. Archer, 531 F.3d 1347, 1352 (1 I t ' Cir. 2008). Therefore, he is entitled to be resentenced absent that enhancement. Accordingly, Brown's § 2255 Motion is GRANTED. The Clerk of Court is hereby authorized and DIRECTED to enter the appropriate judgment. The United States Probation Office is DIRECTED to prepare a new presentence investigation report reflecting the fact that Brown is not an armed career criminal. The Court will appoint new counsel to represent Brown at the resentencing hearing, and the Clerk is therefore DIRECTED to prepare the appropriate appointment papers forthwith. The Court will schedule the case for resentencing once the revised

presentence investigation report has bee1repared and reviewed by counsel. SO ORDERED this the )day of September, 2010.

AVANT EDENFIEL UNITED STATES DISTRICT JUDGE