Billings v. USA

Filing 9

ORDER granting (1) Motion to Vacate, Set Aside or Correct Sentence (2255); granting nunc pro tunc 8 MOTION for Extension of Time to File Response/Reply. Petitioner shall be resentenced in accordance with this order. Signed by District Judge Richard Voorhees on 5/9/16. (smj)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:15-cv-98-RLV
(5:13-cr-68-RLV-DSC-1)
O.C. BILLINGS,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
______________________________________ )

ORDER

THIS MATTER is before the Court on Petitioner’s Motion to Vacate, pursuant to 28
U.S.C. § 2255, (Doc. No. 1), on the Government’s Response in Support, (Doc. No. 7), and on the
Government’s Motion for Extension of Time to File Response/Reply, (Doc. No. 8). Petitioner is
represented by Joshua Carpenter and Rahwa Gebre-Egziabher of the Federal Defenders of Western
North Carolina. For the reasons that follow, the motion to vacate will be granted.
I.

BACKGROUND

Petitioner O.C. Billings was charged by Bill of Information on September 9, 2013, with
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Crim. Case
No. 5:13cr68-RLV, Doc. No. 5: Bill of Information). The same day he was charged, Petitioner
entered into a plea agreement with the Government in accordance with Federal Rule of Criminal
Procedure 11(c)(1)(C) and pleaded guilty to the § 922(g) offense. (Id., Doc. No. 6: Plea
Agreement; Doc. No. 9: Acceptance and Entry of Guilty Plea). In the parties’ plea agreement,

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Petitioner stipulated that he was an armed career criminal and agreed to a sentence of 240
months in prison. (Id., Doc. No. 6 at ¶ 5).
In preparation for Petitioner’s sentencing hearing, the Probation Office prepared a
Presentence Report (“PSR”). (Id., Doc. No. 12: PSR). Because Petitioner’s offense involved the
use of a firearm in connection with a kidnaping that also included the use of a dangerous weapon
and the sexual exploitation of the victim, the probation officer applied the cross-reference to the
kidnaping guideline and calculated an adjusted offense level of 40. (Id. at ¶ 21). The probation
officer also noted that Petitioner had at least three prior convictions for violent felonies or serious
drug offenses and that he qualified as an armed career criminal under 18 U.S.C. § 924(e). (Id. at
¶ 26). Among the prior convictions reported by the probation officer were two convictions for
attempted first-degree burglary, in violation of North Carolina General Statutes § 14-51; one
conviction for attempted second-degree burglary, also in violation of § 14-51; one conviction for
assault on a law enforcement officer; and one conviction for assault with a deadly weapon
inflicting serious injury. (Id. at ¶¶ 35; 36; 38; 39; 41). Based on a total offense level of 37 and a
criminal history category of VI, the probation officer determined that the applicable Guidelines
range of imprisonment was between 360 months and life in prison. (Id. at ¶ 68). On July 9,
2014, the Court conducted Petitioner’s sentencing hearing, sentencing him to 240 months in
prison consistent with the parties’ Rule 11(c)(1)(C) plea agreement. (Id., Doc. No. 16:
Judgment). Petitioner did not appeal. On December 11, 2014, the Court entered an amended
judgment to correct a clerical error in the original judgment. (Id., Doc. No. 21: Amended
Judgment).
On August 3, 2015, Petitioner filed the instant motion to vacate his sentence, arguing that
he was sentenced as an armed career criminal in violation of the Supreme Court’s decision in

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Johnson v. United States, 135 S. Ct. 2551 (2015). Specifically, Petitioner contends that he was
improperly sentenced as an armed career criminal because the residual clause of the careeroffender guideline is unconstitutionally vague and his prior convictions for attempted burglary
and assault on a law-enforcement officer only qualified as predicate convictions under the
ACCA based on the now-invalid residual clause. Petitioner contends that, in light of Johnson, he
no longer has three predicate convictions supporting his classification as an armed career
criminal. In its response, the Government agrees that Petitioner’s attempted burglary convictions
qualified as predicate convictions only under the residual clause and that, without these
convictions, Petitioner lacks the three predicate convictions required to support his ACCAenhanced sentence of 240 months in prison.
II.

STANDARD OF REVIEW

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the
claims set forth therein. After examining the record in this matter, the Court finds that the
argument presented by Petitioner can be resolved without an evidentiary hearing based on the
record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III.

DISCUSSION

The ACCA provides for a mandatory-minimum term of 15 years in prison for any
defendant who violates 18 U.S.C. § 922(g) and who has three previous convictions for a “violent
felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). “Violent felony” is defined to
include “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as
an element the use, attempted use, or threatened use of physical force against the person of

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another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B).
In assessing whether a prior conviction qualifies as a violent felony for purposes of the ACCA, a
sentencing court employs the categorical approach, comparing the elements of the statute
forming the basis of the defendant’s conviction with ACCA’s definition of “violent felony.” See
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
In 2015, the Supreme Court held in Johnson that the provision defining “violent felony”
to include a prior conviction for an offense that “otherwise involves conduct that presents a
serious potential risk of physical injury to another,” known as the “residual clause” of the
ACCA’s “violent felony” definition, is void for vagueness. Johnson, 135 S. Ct. at 2556, 2558.
The Supreme Court also held that the clause is void “in all its applications.” Id. at 2561. The
Court did not strike the remainder of the “violent felony” definition, including the four
enumerated offenses and the “force clause” of § 924(e)(2)(B)(i). Id. at 2563.
As a result of Johnson, a defendant who was sentenced to a statutory mandatoryminimum term based on a prior conviction that satisfies only the residual clause of the “violent
felony” definition is entitled to relief from his sentence. See United States v. Newbold, 791 F.3d
455, 460 (4th Cir. 2015) (holding that the improper imposition of an ACCA-enhanced sentence
is an error that is cognizable in a motion to vacate filed under 28 U.S.C. § 2255). Where,
however, the prior convictions upon which his enhanced sentence is based qualify as violent
felonies under the “force clause” or qualify as one of the four enumerated offenses, no relief is
warranted. On April 18, 2016, the Supreme Court held in Welch v. United States, No. 15-6418,
2016 WL 1551144, at *11 (S. Ct. Apr. 18, 2016), that Johnson is retroactively applicable on

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collateral review to claims that the defendant was improperly sentenced as an armed career
criminal.
Here, Petitioner argues that his prior convictions for (1) attempted first- and seconddegree burglary, in violation of North Carolina General Statutes § 14-51 and (2) assault on a lawenforcement officer qualified as “violent felonies” under the ACCA only under the residual
clause and that he is entitled to sentencing relief under Johnson. In its response, the Government
states that it agrees that Petitioner’s attempted-robbery convictions qualified as ACCA predicates
only under the residual clause and that Petitioner’s sentence should be vacated. For the
following reasons, the Court agrees with the parties that Petitioner is entitled to sentencing relief
in light of Johnson.
In James v. United States, 550 U.S. 192 (2007), the Supreme Court held that Florida’s
offense of attempted burglary constituted a “violent felony” for purposes of the ACCA because it
was an offense that, by its nature, presents a serious potential risk of injury to another, satisfying
the residual clause of the “violent felony” definition. Id. at 209. The Court noted that both
parties in that litigation, including the government, conceded that the attempted-burglary offense
does not qualify as a violent felony under the “force clause” of the definition, because it does not
have, as an element, the use, attempted use, or threatened use of physical force against the person
of another. Id. at 197; see also 18 U.S.C. § 924(e)(2)(B)(i). The Court also noted that attempted
burglary under Florida law requires “an ‘overt act directed toward entering or remaining in a
structure or conveyance,’” not merely preparation to commit a burglary. Id. at 202.
Consistent with Florida, North Carolina defines an attempt as “‘an act done with intent to
commit [a particular] crime, carried beyond mere preparation to commit it, but falling short of its
actual commission.’” State v. Martin, 191 N.C. App. 462, 472 (2008) (quoting State v.

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Goodman, 71 N.C. App. 343, 345 (1984)). Under James, then, an attempted-burglary conviction
under North Carolina law only qualifies as a violent felony for purposes of the ACCA under the
residual clause of the “violent felony” definition. Under Johnson, the residual clause is
invalidated and can no longer support a defendant’s status as an armed career criminal. Because
three of Petitioner’s five predicate felonies were attempted-burglary convictions, he lacks three
qualifying convictions.1 The Court finds that Petitioner’s motion to vacate will be granted and
Petitioner is, therefore, entitled to be resentenced.
IV.

CONCLUSION

For the reasons stated herein, the Court grants Petitioner’s motion to vacate, and
Petitioner is entitled to be resentenced.
IT IS, HEREBY, ORDERED that:
(1)

Petitioner’s Motion to Vacate, (Doc. No. 1), is GRANTED, and Petitioner shall be
resentenced in accordance with this order.

(2)

The Government’s Motion for Extension of Time to File Response/Reply, (Doc.
No. 8), is GRANTED nunc pro tunc.

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Petitioner also argues that his conviction for assault on a law enforcement officer no longer
qualifies as a “violent felony” for purposes of the ACCA under Johnson. The Government stated
in its response that Petitioner is entitled to sentencing relief regardless of whether his assault
conviction satisfies the “force clause” of the “violent felony” definition. The Government noted
that a decision resolving this argument was pending in the Fourth Circuit, see United States v.
Vinson, Fourth Circuit Case No. 14-4078. On November 3, 2015, after the Government filed its
response, the Fourth Circuit held in Vinson that the defendant’s prior North Carolina
misdemeanor assault conviction did not categorically qualify as a conviction for misdemeanor
crime of domestic violence under 18 U.S.C. § 921(a)(33)(A). United States v. Vinson, 805 F.3d
120 (4th Cir. 2015). The Court finds that, regardless of whether Petitioner’s assault conviction
satisfies the “force clause” of the “violent felony” definition under the ACCA, he is entitled to
sentencing relief because he no longer has three predicate convictions under the ACCA.
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Signed: May 9, 2016

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