Green v. United States of America

Filing 7

REPORT AND RECOMMENDATIONS denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Jerry Orenthal Green. Objections to R&R due by 2/15/2017. Signed by Magistrate Judge G. R. Smith on 2/1/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JERRY ORENTHAL GREEN,

)

)

Movant,

)

)

)

)

UNITED STATES OF AMERICA,

CV416-153
CR405-139

)

)

Respondent.

)

REPORT AND RECOMMENDATION
Jerry Green was convicted by a jury of violating 18 U.S.C. § 922(g)
(possession of a firearm by a convicted felon) and given an enhanced
sentence of 293 months under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(1).

See docs. 11 (indictment); 41 (jury verdict); 46

(judgement for 293 months' imprisonment); 53 (mandate affirming
judgment, filed September 7, 2006). Invoking 28 U.S.C. § 2255, he seeks
to exploit the new rule announced in Johnson v. United States, 576 U.S.
-' 135 S. Ct. 2551 (2015), and made retroactive by Welch v. United

States, 578 U.S. -' 136 S. Ct. 1257 (2016), to neutralize his career-felon

1

The Court is citing to the criminal docket in CR405-139 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.

enhancement.' Doc. 62 at 4.
I. BACKGROUND
Green was found guilty by a jury of one count of possession of a
firearm by a convicted felon.

Doc. 41. His Presentence Investigative

Report (PSR) deemed him an armed career criminal, and the Court
ultimately sentenced him to 293 months' imprisonment. Does. 45 & 46;
PSR at ¶IT 22, 28 1 30.
After unsuccessfully appealing his conviction, United States v.

Green, 219 F. App'x 843 (11th Cir. 2006), Green filed a motion to correct
his sentence, arguing, inter alia, that the PSR erroneously described his
conviction for two counts of robbery as separate incidents.

Doc. 55 at 2.

The Court denied his motion, and his appeal from that order was
dismissed for lack of prosecution. Does. 56 & 61.
The Supreme Court has since held in Johnson that the "residual
clause" of the ACCA, 18 U.S.C. § 924(e)(2)(B), is unconstitutionally
vague. 135 S. Ct. at 2557. Green argues that his convictions for robbery
do not survive Johnson. as ACCA-predicates.

2

Doc. 62-1 at 7. The

The enhancement was based upon Green's prior convictions for drug offenses and
violent felonies, to wit: possession with intent to distribute marijuana, armed
robbery, and two counts of robbery. PSR ¶IT 28-30; see also doe. 5-1.
2

Government opposes. Doc. 67.
II. ANALYSIS
A. The Johnson Decision
The ACCA provides enhanced penalties for defendants who are
(1) convicted of being felons in possession of firearms in violation of
18 U.S.C. § 922(g), and (2) have "three prior convictions. . . for a violent
felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). Plain
vanilla, felon-in-possession convictions fetch a maximum 10 year
sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement
mandates a 15 year minimum (and a maximum of life). 18 U.S.C.
§ 924(e)(1).
To qualify as an ACCA "violent felony" predicate at the time of
sentencing, a prior conviction must be an offense that (1) "has as an
element the use, attempted use, or threatened use of physical force
against the person of another"; (2) "is burglary, arson, or extortion, [or]
involves the use of explosives"; or (3) "otherwise involves conduct that
presents a serious potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii). These three definitions are known, respectively, as
(1) the elements clause, (2) enumerated crimes clause, and (3) residual
3

clause. Johnson held that that "residual clause" was unconstitutionally
vague. See 135 S. Ct. 2551, 2557. It said nothing, however, about ACCA
enhancements predicated on convictions for "serious drug offenses" or
"violent felonies" as defined by ACCA provisions other than the residual
clause. See, e.g., Johnson, 135 S. Ct. at 2563 ("Today's decision does not
call into question application of the Act to the four enumerated offenses,
or the remainder of the Act's definition of a violent felony," much less its
definition of "serious drug offense"). After Johnson, enhancements
based on those offenses remain valid.

United States v. Tinker, 618 F.

App'x 635, 637 (11th Cir. 2015) (convictions that qualify as violent
felonies under the "elements" clause of the ACCA, rather than the
"residual" clause, survive Johnson); United States v. Garcia-Martinez,
2017 WL 104462 at * 2 (11th Cir. Jan. 11, 2017) ("One type of qualifying
offense is a 'violent felony.").
B. ACCA Predicates
Green disputes that his ACCA-enhanced sentence survives

Johnson.

Doc. 62. He contends that of his four priors, his two

convictions for robbery no longer qualify as ACCA predicate offenses. Id.
He further contends that, regardless, they should not be counted

separately, as they actually "consisted of one simultaneous crime
occurring at the exact same time and location and not at different
times." Doc. 62-1 at 7. Green apparently concedes that his two
convictions for possession with intent to distribute marijuana" and

Green concedes this conviction still qualifies as an ACCA predicate, and for good
reason. See In re Williams, 826 F.3d 1351, 1356 (2016) (prior convictions for a
"felony drug offense" are "not even arguably affected by Johnson's holding regarding
the ACCA's residual-clause definition of a violent felony.").
O.C.G.A. § 16-16-13-300) is analyzed under the modified categorical approach.
United States v. Stevens, 654 F. App'x 984, 987 (11th Cir. 2016) (because '1 16-1330(j)(1) lists disjunctively 'possession' and 'possession with intent to distribute' -thereby creating separate offenses -- the statute is divisible.") (citing Descamps v.
United States, - U.S. -, 133 S. Ct. 2276, 2281 (2013) (a statute is "divisible" when it
"sets out one or more elements of the offense in the alternative"); Vines v. State, 296
Ga. App. 543 (2009) (finding evidence sufficient to support conviction for possession
of marijuana under O.C.G.A. § 16-13-300)(1), but vacating a conviction for possession
with intent to distribute where insufficient evidence existed of defendant's intent to
distribute)).
Under the modified categorical approach, courts consult certain "Shepard"
documents such as charging documents, plea agreements, transcripts of plea
colloquies, jury instructions, and verdict forms to determine the statutory basis for
conviction. Johnson, 559 U.S. at 144; see also In re Hires, 825 F.3d 1297, 1302 (11th
Cir. 2016) (undisputed facts contained in a PSR may also be used in determining the
statutory basis for conviction). Here, movant pled guilty to the charges of the
indictment, that he "unlawfully possess[ed] marijuana, more than an ounce. . . with
an intent to distribute . . . contrary to the laws of Georgia." Doc. 114-5 at 4-5
(indictment & guilty plea); Stevens, 654 F. App'x at 987 (to constitute an ACCApredicate offense, "the undisputed facts in [the Shepard documents must] show that
[defendant] was convicted under Georgia law of possession with intent to distribute
marijuana (not mere possession of marijuana).").
Green's 1992 conviction for possession with intent to distribute marijuana fits the
ACCA's definition because (1) it was a state law crime (2) for the intent to distribute
(3) a controlled substance (4) punishable by up to ten years in prison. PSR at 128;
doc. 67-1 at 8; see 18 U.S.C. § 924(e)(2)(A)(ii); 21 U.S.C. §§ 802(6), 812, Schedule
I(c)(10) (listing marijuana as a Schedule I controlled substance); Reeves v. United
States, 2016 WL 6394308 at *3 (S.D. Ga. Oct. 26, 2016) (possession with intent to
5

armed robbery' remain valid ACCA predicates. Hence, only one other
prior conviction need be an ACCA predicate to deny this claim.
1. Green's Convictions
Green was indicted by the State for two counts of armed robbery
and two counts for felon-in possession of a firearm during the
commission of a crime. Doc. 67-1 at 6-7. He pled guilty to two counts of
armed robbery and one count of possession of a firearm as a convicted
felon in exchange for dismissal of the charge of use of a firearm during
commission of a crime. M. at 10, 12-13.

distribute a controlled substance in violation of O.C.G.A. § 16-13 et seq. is a valid
ACCA predicate offense); see also O.C.G.A. § 16-13-300)(2) ("any person who violates
this subsection shall be guilty of a felony and, upon conviction thereof, shall be
punished by imprisonment for not less than one year nor more than ten years");
Olson v. State, 166 Ga. App. 104, 110 (1983) (determining Georgia Controlled
Substances Act maximum sentence for marijuana distribution is ten years). That
marijuana may not constitute a "controlled substance" under Georgia law is
immaterial -- enhancement is governed by definitions set forth in federal law, not
state law, United States v. Tamayo, 80 F.3d 1514, 1523 (11th Cir. 1996), and federal
law requires only that Green has been shown to have been convicted of possession
with intent to distribute marijuana on a state offense punishable by up to ten years
in prison. He does not dispute those facts.
Green rightfully concedes this conviction as well. At the time of his conviction,
under Georgia law "[a] person commits the offense of armed robbery when, with
intent to commit theft, he or she takes property of another from the person or the
immediate presence of another by use of an offensive weapon. . . ." O.C.G.A. § 16-84; see PSR at ¶ 30 (on October 24, 1992, movant robbed Kenneth Arkwright at
gunpoint and took his car and cash). Armed robbery clearly "has as an element the
use, attempted use, or threatened use of physical force against the person of another"
within the meaning of the ACCA. 18 U.S.C. § 924(e)(2)(B).

Interestingly, an apparent clerical error appears on the indictment.
Green was charged with two counts of "armed robbery" in violation of
" 16-8-4." See doe. 67-1 at 6. But O.C.G.A. § 16-8-4 criminalizes "theft
by conversion," while O.C.G.A. § 16-8-41 criminalizes "armed robbery."
Though Johnson and its progeny demand a high level of specificity when
it comes to Shepard documents supporting the statutory basis of
conviction, it is clear from the indictment that the jury had been directed
to determine whether Green had committed "armed robbery" as defined
by O.C.G.A. § 16-8-41, and had in fact charged Green with armed
robbery under that statute, not § 16-8-4. See doe. 67-1 at 6 (indictment
charging Green with having committed "armed robbery" in two separate
incidents on the same day, by taking, "with intent to commit a theft,"
Steven Williams' wallet and Sanchez Gardener's money "by use of an
offensive weapon, to wit: a certain firearm."); see also PSR at ¶ 29.
Movant, apparently latching upon this discrepancy, contends that
he was actually convicted of the lesser included offense "robbery by
snatching," under O.C.G.A. § 16-8-40. See, e.g., does. 62 at 4, 10-13; 68
at 14. The Georgia armed robbery statute, § 16-8-41, itself provides only
for the lesser included offense of "robbery by intimidation" under
7

O.C.G.A. § 16-8-40. Because it is uncertain that Green actually pled
guilty to two counts of armed robbery under § 16-8-41 as charged in the
indictment -- particularly given that he was sentenced to only 4 years'
imprisonment, when O.C.G.A. § 16-8-41(b) requires a minimum 10-year
sentence -- the Court must conclude that he pled guilty to the lesser
included offense of robbery by intimidation. See id. at § 16-8-41(a). His
contention that he actually pled to "robbery by snatching" is without
merit, as it is both not an included offense under the statute and there is
absolutely no evidence in the Shepard documents that robbery by
snatching was even on the table. See doc. 67-1 at 10-11 (negotiated plea
for "robbery"), 12 (4-year sentence imposed on two counts of "armed
robbery" and felon-in-possession of a firearm). The next step here, then,
is to examine whether the robbery by intimidation qualifies as an ACCA
predicate.
2. Robbery by Intimidation
Robbery in Georgia can be committed in one three of ways: by use
of force; by intimidation, threat or coercion, or placing a person in fear of
immediate bodily injury; or by "sudden snatching." O.C.G.A. § 16-8-40.
Given the disjunctive listing of statutory elements, Georgia's robbery
rs

statute cannot categorically qualify as a violent felony following Johnson.

In re: Herman MeCiouden, No. 16-13525-J (11th Cir. July 12, 2016), copy
available at McCiouden v. United States, 2016 WL 5109530 at *4 (S.D.
Ga. Sept. 20 2016). Instead, it must be analyzed under the modified
categorical approach.

Mathis i'. United States, 136 S. Ct. 2243, 2249

(2016); Descamps v. United States, 570 U.S. -' 133 S.Ct. 2276, 2281
(2013) (the modified categorical approach is used when a statute is
"divisible," such that it "sets out one or more elements of the offense in
the alternative").
Robbery by intimidation occurs when "[a] person . . . with the
intent to commit theft . . . takes property of another from the person of
another or the immediate presence of another. . . by intimidation, by the
use of threat or coercion, or by placing such person in fear of immediate
serious bodily injury to himself or to another . . . ." O.C.G.A. § 16-840(a)(2). "A conviction for robbery by intimidation . . . requires proof
that the theft was attended with such circumstances of terror -- such
threatening by word or gesture, as in common experience, are likely to
create an apprehension of danger, and induce a [person] to part with his
property for the safety of his person."
9

Smith u. State, 247 Ga. App. 173

(2000). On the state statue's elements, that's a clear use of the
"threatened use of physical force against the person of another."
18 U.S.C. § 924(e)(1)(2)(B)(i); Brown v. United States, WL 7013531 at *3
(S.D. Ga. Nov. 7, 2016) (citing Crooks v. United States, 2015 WL 7069665
at *2 (S.D. Ga. Nov. 13, 2015) ("[R]obbery by intimidation contains as an
element a threat, implicit or overt, which would likely create fear for the
safety of the person being threatened. Although this definition does not
include the word force, the natural corollary of an act that creates fear
for the safety of a person is the threatened use of physical force against
that person.")).'

See Hires, 825 F.3d at 1303 ("because [Brown's]

convictions qualified under the elements clause, that settles the matter
for Johnson-residual clause purposes regardless of whether those
convictions would count were [he] being sentenced today.").

Indeed, the Seventh Circuit reached this same conclusion and held that Georgia's
robbery by intimidation statute falls under the elements clause of the ACCA because
it contains as an element a threat of the use of physical force. See United States v.
Thomas, 280 F.3d 1149, 1159 (7th Cir. 2002). Other circuits have held that similar
robbery by intimidation statutes fall under the elements clause. See, e.g., United
States v. Mitchell, 743 F.3d 1054, 1059 (6th Cir. 2014); United States v. Taylor, 529
F.3d 1232, 1237 (9th Cir. 2008); United States u, Melton, 344 F.3d 1021, 1026 (9th
Cir. 2003); United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995) (Virginia robbery
by intimidation statute involved threatened use of physical force); see also United
States v. Smith, 2016 WL 6875877 at * 6 (E.D. Tenn. Nov. 21, 2016) ("All federal
courts of appeals which have considered robbery offenses that. . . require more force
than mere purse snatching have concluded that such offenses qualify as either crimes
of violence or violent felonies under the use-of-force clause.") (collecting cases).
10

Green's 1992 convictions for possession with intent to distribute,
armed robbery (of Kenneth Arkwright), and armed robbery by
intimidation (of either Steven Williams or Sanchez Gardener) 6 thus meet
the three-conviction threshold for ACCA career-offender enhancement.
18 U.S.C. § 924(e)(1). Johnson therefore has no impact on the validity of
his sentence.
III. CONCLUSION
Movant's prior convictions remain predicate offenses triggering an
ACCA enhancement. See 18 U.S.C. H 924(e)(1) & (2)(B). Jerry Green's
§ 2255 motion should thus be DENIED on the merits. 7 For the reasons

6

Green disputes that the two robberies should be considered separate incidents, as
they occurred on the same day; he was arrested for both at the same time; and the
two incidents were presented together at the indictment, plea, and conviction stages.
Doc. 62 at 6. Even assuming that this claim is not procedurally defaulted, see Green,
219 f. App'x 843 (only claim presented on appeal was on sufficiency of the evidence);
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (a movant may not use
his collateral attack as "a surrogate for a direct appeal."), the Shepard documents
make clear that these two robberies were properly considered separate occasions for
enhancement purposes (see doc. 67-1 at 6-11 (indictment and guilty plea to two
counts of felony robbery, with two four-year sentences to be concurrently served, for
armed robberies of Sanchez Gardner and Steven Williams). See United States V.
Sneed, 600 F.3d 1326, 1332-33 (11th Cir. 2010) (courts may look to Shepard-approved
sources to determine whether the prior offenses were committed on different
occasions for purposes § 924(e) enhancement). And, even were the Court to ignore
that evidence and determine that the offenses only count as a single conviction,
Green still makes it to the magic number three for § 924(e) enhancement as a career
offender.
Because his motion is without merit and his contentions are unambiguously
11

set forth above, it is plain that he raises no substantial claim of
deprivation of a constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Rule
11(a) of the Rules Governing Habeas Corpus cases Under 28 U.S.C.
§ 2255 ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").
Any motion for leave to appeal in fonma pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Magistrate Judge's Report and Recommendations." Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.

contradicted by the record, Green's request for an evidentiary hearing (doe. 62 at 13)
is DENIED. Winthrop-Redin v, United States, 767 F.3d 1210, 1216 (11th Cir. 2014)
(a hearing is unnecessary "if the allegations are 'patently frivolous,' 'based upon
unsupported generalizations,' or 'affirmatively contradicted by the record."); Holmes
v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (same); Lynn, 365 F.3d at 1239
(where the motion "amount[ed] to nothing more than mere conclusory allegations,
the district court was not required to hold an evidentiary hearing on the issues and
correctly denied Lynn's § 2255 motion.").
12

After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x
542 1 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED, this 1st day of
February, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

13