WILSON v. UNITED STATES OF AMERICA

Filing 3

OPINION AND ORDER granting Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Donetta W. Ambrose on 8/31/17. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA
v.

)
)
) CR No. 6-97
) CV No. 16-795

DEION LAMONT WILSON
OPINION AND ORDER
SYNOPSIS
On September 7, 20016, a jury convicted Defendant of violating 18 U.S.C. §§ 922(g)(1)
and 924(e)(1). On December 8, 2006, Defendant was sentenced to a term of imprisonment of
262 months, followed by a term of supervised release.1 His sentence was based, in part, on the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Before the Court is Defendant’s
Motion pursuant to 28 U.S.C. § 2255, in which he contends that his sentence is invalid in light of
Johnson v. United States, 135 S. Ct. 2551 (2015). For the following reasons, Defendant’s
Motion will be granted, and the matter scheduled for resentencing.
OPINION
I.

APPLICABLE STANDARDS

Relief is available under Section 2255 only under exceptional circumstances, when the
claimed errors of law are "a fundamental defect which inherently results in a complete
miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424 (1962). A district court need not hold an
evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively

1

This matter was transferred to my docket from Judge Fischer’s on December 1, 2016. Prior to Judge Fischer,
Judge McVerry presided over the case. The Court obtained a paper copy of Defendant’s file, and has had the
opportunity to review documents that do not appear in the electronic record.

1

that the defendant is not entitled to relief. United States v. Ritter, 93 Fed. Appx. 402 (3d Cir.
2004). In this case, a hearing is unnecessary, and the Motion will be disposed of on the record.
II.

DEFENDANT’S MOTION

In this case, the Presentence Report (“PSR”) identifies the following convictions, in
addition to a conviction for possession with intent to deliver cocaine, as the bases for an ACCA
determination: aggravated assault, at Allegheny County Court of Common Pleas (“Common
Pleas”) Docket No. 199212035; robbery at Common Pleas Docket No. 199403301; and robbery
at Common Pleas Docket No. 199403299.
The sentencing Court, without pertinent discussion, adopted the findings of the PSR and
sentenced Defendant accordingly. Defendant does not now contest the Court’s reliance on the
drug offense, but argues that the remaining offenses are no longer valid predicates.2 The
Government argues to the contrary, and urges that both aggravated assault and robbery qualify
under ACCA’s “force” clause. In this context, the Government bears the burden of
demonstrating that an ACCA sentence is supported on grounds other than the now-invalid
residual clause. See, e.g., United States v. Smith, No. 92-146, 2016 U.S. Dist. LEXIS 113484,
at *6 (W.D. Pa. Aug. 25, 2016).
A. Assault
The parties agree that Defendant’s aggravated assault conviction involved a violation of
18 Pa.C.S. § 2702(a)(1), obviating the need to delve into divisibility, or which statutory
subsection undergirds the offense. Although the Government’s arguments to the contrary are
well-taken, at this time, I decline to depart from those decisions that have found that a violation
of Section 2702(a)(1) is not a qualifying predicate offense for ACCA purposes. United States v.
2

I decline to consider the predicate status of any prior convictions, such as Defendant’s conspiracy conviction, that
was not obviously relied on at sentencing. See United States v. McColley, No. 7045, 2016 U.S. Dist. LEXIS 38760
(W.D. Pa. Mar. 24, 2016).

2

Fisher, No. 1-796, 2017 U.S. Dist. LEXIS 60825, at **10-17 (E.D. Pa. Apr. 21, 2017); United
States v. Weygandt, 9-324, 2017 U.S. Dist. LEXIS 29251, at * (W.D. Pa. Mar. 2, 2017);3 United
States v. Harris, No. 6-268, 2016 U.S. Dist. LEXIS 117070, at **42-43 (M.D. Pa. Aug. 31,
2016).
B. Robbery
a. Predicate Offense
Because his aggravated assault conviction cannot serve as a predicate offense, the
validity of Defendant’s ACCA sentence depends on whether his robbery convictions supply two
violent felonies to add to his extant drug offense. The pertinent robbery convictions arose under
18 Pa.C.S. § 3701, which provided, in pertinent part, as follows:
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another; [or]
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily
injury;
(iii) commits or threatens immediately to commit any felony of the
first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or
intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another
by force however slight.

18 Pa.C.S. § 3701(a) (1991).
Defendant argues that pursuant to Mathis v. United States, 136 S. Ct. 2243 (2016),
Section 3701 is indivisible, and not subject to a modified categorical approach. Even after
Mathis, Courts within this Circuit have continued to follow United States v. Blair, 734 F.3d 218,
225 (3d Cir. 2013), which held that Pennsylvania’s robbery statute is divisible and subject to a
3

On July 11, 2017, the Government filed a Notice of Appeal in Weygandt.

3

modified categorical approach. See, e.g., United States v. Coffie, No. 1-663, 2017 U.S. Dist.
LEXIS 126577, at *8 (E.D. Pa. Aug. 9, 2017); United States v. Stanford, No. 8-307, 2016 U.S.
Dist. LEXIS 171032, at *14 (M.D. Pa. Oct. 18, 2016).
Recently, my sister court in Philadelphia concluded that Blair does not survive Mathis
intact. United States v. Singleton, No. 10-578, 2017 U.S. Dist. LEXIS 64004, at *12 (E.D. Pa.
Apr. 26, 2017). It noted, first, that it was undisputed that Section 3701(a)(1)(iii) “is not
categorically an ACCA predicate.” Id. at *20. It then found that that when a defendant is
charged under all three subsections of Pennsylvania’s robbery statute, the statute is indivisible.
This holding, however, was accompanied by the conclusion that even when all subsections are
charged, a court may look to Shepard documents to determine whether a defendant’s particular
convictions can be isolated to offenses that fit ACCA’s force clause. Id. at **11-12.4 In other
words, the Court found that “Blair’s holding remains true where a defendant was not charged
under subsection (iii) or if analysis of the Shepard documents otherwise isolates his conviction to
an offense with ACCA-qualifying violent elements.” Id. at *22.
Whether the principles of Blair or Singleton govern, the result here is the same.
Defendant asserts, and Shepard documents demonstrate, that Defendant’s robbery convictions at
Common Pleas Case Numbers 9403301 and 9403299 arose under either Section 3701(a)(1)(i) or
(a)(1)(ii), and in neither case was he charged with a violation of (a)(1)(iii). Moreover, courts
within this Circuit have repeatedly held that convictions under Sections (a)(1)(i) and (a)(1)(ii)
qualify as predicate offenses under the force clause. See, e.g., Coffie, 2017 U.S. Dist. LEXIS
126577, at *11; United States v. Villella, No. 6-06, 2017 U.S. Dist. LEXIS 64052, at *19 (W.D.
Pa. Apr. 27, 2017); United States v. Peppers, No. 00-336, 2016 U.S. Dist. LEXIS 168101, at *3

4

In Singleton, the defendant was charged with subsections (i)-(iii) of the robbery statute, and the Court was unable
to determine the subsection of conviction.

4

(M.D. Pa. Dec. 6, 2016); Harris, 2016 U.S. Dist. LEXIS 117070, at *44 (citing United States v.
Dobbin, 629 F. App’x 448, 452 (3d Cir. 2015) (nonprecedential)); United States v. Maldonado,
No. 10-288, 2016 U.S. Dist. LEXIS 105356, at **10, 13-14 (E.D. Pa. Aug. 9, 2016).
b. Single Offense or Multiple Offenses
Even if his robbery convictions are qualifying predicates, Defendant argues that they do
not reflect violent felonies “committed on occasions different from one another” as required by
ACCA. 18 U.S.C. § 924(e)(1). Thus, he contends, they “count” as one offense, rather than two.
In particular, Defendant suggests that because the robbery charges were accompanied by
conspiracy charges, it is possible that the crimes could have been committed simultaneously
through co-conspirators. The Government, in opposition, argues that the offenses involved
different stores and victims, and because “it is impossible to be in two places at the same time,
the robberies were distinct in time.”
As a threshold matter, the Government contends, rather perfunctorily, that Defendant has
procedurally defaulted this argument by failing to raise it on direct appeal. A petitioner’s default
may be excused by a showing of cause for the default, and prejudice arising from failure to
consider the claim. A claim that "is so novel that its legal basis is not reasonably available to
counsel" may constitute cause for procedural default. Reed v. Ross, 468 U.S. 1, 16 (1984).
Here, the PSR identified four different predicate convictions for ACCA purposes. Defendant
was sentenced in 2006, before Johnson – or its obvious, direct ancestors -- was on the horizon.
At that point, therefore, Defendant was tagged with three predicate offenses, whether his robbery
convictions counted as one or two. It was Johnson that rendered the argument non-frivolous.
Further, prejudice is evident. Indeed, courts have “consistently ruled that cause and prejudice
excuse…procedural default in the Johnson context.” Mitchell v. United States, No. 17-02341,

5

2017 U.S. Dist. LEXIS 103473, at *19 (W.D. Tenn. July 5, 2017). Under the circumstances,
Defendant has not procedurally defaulted his claim based on ACCA’s “different occasions”
requirement.
When assessing whether offenses occurred on different occasions for ACCA purposes,
the “separate episode test” adopted in this Circuit requires that the criminal episodes be “distinct
in time.” United States v. Swan, 661 F. App’x 767, 770 (3d Cir. 2016) (citing Blair, 734 F.3d at
228-29); United States v. Chatman, 487 F. App’x 769, 771 (3d Cir. 2012). Accordingly, "[i]t is
necessary to look to the nature of the crimes, the identities of the victims, and the locations.
Additionally, we must ask whether the defendant had sufficient time to cease and desist or
withdraw from the criminal activity." United States v. Mucha, 49 F. App’x 368, 371 (3d Cir.
2002); see also Chatman, 487 F. App’x at 771. Otherwise stated, “[a]s long as crimes are
successive, and not simultaneous, they occur on different occasions for ACCA enhancement
purposes.” United States v. Bargeron, 435 F. App’x 892, 893-94 (11th Cir. 2011). It has been
said that the “critical inquiry…is whether the offenses occurred sequentially.” United States v.
Fuller, 453 F. 3d 274, 278 (5th Cir. 2006). Whether prior convictions occurred on different
occasions is properly determined by the sentencing court, which may rely on documents
approved by Shepard v. United States, 544 U.S. 13 (2005). See United States v. Jurbala, 198 F.
App’x 236, 237 (3d Cir. 2006); Blair, 734 F. 3d at 227-228 (citing Almendarez-Torres v. United
States, 523 U.S. 224 (1998)); United States v. Terry, No. 10-29, 2015 U.S. Dist. LEXIS 91470,
at **16-17 (W.D. Pa. July 14, 2015).

6

Here, according to the charging documents, the conduct underlying both of Defendant’s
robbery convictions occurred on the same day.5 One robbery involved the theft of lottery
proceeds from Bryant Street Lottery and the threat or infliction of serious bodily injury upon
Mary Denham; the second involved the theft of currency from Court Market and the threat or
infliction of serious bodily injury upon Nadazna Kholodinko. The robbery at the Bryant Street
Lottery occurred “before closing,” but the record identifies no time of day in relation to the Court
Market robbery. The geographic locations of the Bryant Street Lottery and the Court Market are
not identified in the record. Each charging document also contains a criminal conspiracy charge
related to each of the two robberies. Moreover, each conspiracy Count charges that Defendant
conspired with three other individuals to commit the robberies: Amber Sloan, Paul McMillan,
and Robert Woods.
When considering whether crimes were sequential or simultaneous, and whether a
defendant had an opportunity to make a knowing and conscious decision to engage in one
offense after the other, the presence of co-conspirators can complicate the analysis. See, e.g.,
United States v. Linney, 819 F. 3d 747 (4th Cir. 2016). In Pennsylvania, “[o]nce the trier of fact
finds that there was an agreement and the defendant intentionally entered into the agreement, that
defendant may be liable for the overt acts committed in furtherance of the conspiracy regardless
of which co-conspirator committed the act.” Commonwealth v. Murphy, 844 A. 2d 1228, 1238
(Pa. 2004). As such, when available Shepard documents do not conclusively establish sequential
rather than simultaneous offenses, in a joint criminal liability context, courts have declined to
find that the crimes occurred on “different occasions” for ACCA purposes. See, e.g., Fuller, 453
F. 3d at 279-80. In this case, based on the charging documents alone, it is impossible to
5

The charging documents indicate that the robberies were committed on January 4, 1993 and January 4, 1994. The
parties appear to agree, however, that the discrepancy is the result of a typographical error, and that both robberies
occurred on the same day.

7

conclusively determine whether Defendant was held legally responsible for the simultaneous acts
of co-conspirators, and lacked the opportunity to cease and desist or withdraw prior to the second
robbery, or whether he was convicted for his direct participation in sequential or successive
criminal acts.
The presentence report (“PSR”) in this case, however, to which Defendant did not
object,6 potentially augments the facts. As to one robbery, the PSR reports that “[a]ccording to
the criminal complaint affidavit, the victim advised that three men entered the Bryant Street
Lottery store,” and “[t]he participants in the robbery were later identified” as Defendant,
McMillan, and Woods. As to the other robbery, the PSR reports that “the victim advised that
three persons entered the Court Market store,” and “[t]he participants in the robbery were later
identified” as Defendant, McMillan, and Sloan. No source for the latter information is named.
These recitations could belie the possibility of two robberies that occurred simultaneously or in
Defendant’s absence; if Defendant was physically present at both robberies, they had to have
been committed in succession. In that case, Defendant would likely have had the opportunity to
cease or withdraw from criminal activity prior to the second robbery. If this part of the PSR is
accepted as fact, the robberies – targeting different establishments and victims -- would probably
“count” as two predicate offenses, committed on different occasions for ACCA purposes.
The issue, then, is the extent to which this Court may rely on the PSR’s recitation. Prior
to the Supreme Court’s decisions in Mathis and Descamps v. United States, 133 S. Ct. 2276
(2013), our Court of Appeals suggested that it is appropriate to rely on the PSR in the different
occasions context: “For the reasons expressed by our sister Circuit in United States v.
Thompson, 421 F.3d 278, 284-287 (4th Cir. 2005), we hold that it was proper for the District
Court, relying on the PSR, to make the ‘different occasions’ determination on its own.” United
6

See Position of Defendant With Respect to Sentencing Factors, Docket No. 57.

8

States v. Jurbala, 198 F. App’x 236, 237 (3d Cir. 2006). In the portion of Thompson to which
Jurbala cited, the Court of Appeals for the Fourth Circuit suggested that prohibited judicial
factfinding precludes “speculation regarding facts extraneous to the prior conviction,” but not
“recourse only to data normally found in conclusive judicial records, such as the date and
location of an offense.” Thompson, 421 F. 3d at 286.7 It noted that “[t]he line between the facts
that are inherent in a conviction and facts that are about a conviction is a common-sensical one.”
Id. at 285. It noted, as well, that the trial judge in the matter at hand could rely on the PSR
because it bore “the earmarks of derivation from Shepard-approved sources such as indictments
and state-court judgments from [defendant’s] prior convictions.” Id. at 285.
Whether these principles remain viable in today’s jurisprudential landscape is under
question.8 Assuming that they survive, to make a “different occasions” finding in this particular
case would require an unwarranted extension of those principles. There is an essential
difference between relying on a fact such as the date of a crime, or even a “non-inherent” fact
manifestly derived from a Shepard-approved source, and looking to a decidedly non-elemental,
extraneous, and unsupported fact, and therefrom extrapolating a factual scenario to support a
sentencing enhancement. Pennsylvania law would hold Defendant legally responsible for all
acts of a co-conspirator; his presence at either robbery location cannot be seen as “inherent” in
the conviction; and Defendant did not necessarily plead guilty to the facts recounted in the PSR.
7

Jurbala cited Thompson while addressing the propriety of a judge, as opposed to a jury, making the “different
occasions” determination. In doing so, the Jurbala Court pointed to additional language in Thompson: “explaining
that ‘occasions’ are ‘those predicate offenses that can be isolated with a beginning and an end-ones that constitute an
occurrence unto themselves," and advising District Courts to make this determination based on factors "such as
different geographic locations and victims.’” Jurbala, 198 F. App’x at 237 (quoting Thompson, 421 F. 3d at 285).
While this limited reference alone does not signify a wholesale adoption of Thompson, it does provide this Court
with guidance.
8
The Court of Appeals for the Fourth Circuit opined that the “different occasions” question is altogether different
from those at issue in Descamps and Mathis, and that courts needn’t be constrained by those cases; it left the
viability of Thompson – which it recognized has been described as an “outlier” -- as an issue for another day.
United States v. Span, 789 F.3d 320, 332 (4th Cir. 2015) (citing United States v. Aviles-Solarzano, 623 F.3d 470,
474 (7th Cir. 2010)).

9

Instead, the fact that Defendant was “later identified” as being present at both robbery locations
need neither have been found by a jury nor admitted by Defendant. Moreover, the PSR’s
suggestion that Defendant was present at both robberies cannot be traced to Shepard-approved
documents – for one robbery, no source is indicated; for the other, the PSR references a criminal
complaint affidavit. Even if the criminal complaint affidavit sufficed, it would lend only one
narrative the earmark of an approved derivation.
In sum, in this particular and rather uncommon scenario – a factual recitation in the PSR
that lacks explicit derivation from Shepard-approved sources; non-elemental, extraneous facts
that would be knitted into a timeline decisive of an enhanced sentence; charging and plea
documents that are not dispositive of the timing of offense conduct; and two robbery charges,
occurring on the same day and both related to parallel conspiracy charges– I am persuaded that
relying on the PSR to affirm an ACCA sentence would run afoul of essential principles
underlying pertinent Supreme Court jurisprudence. In other words, it would go beyond looking
only to data normally found in conclusive judicial records, and extend judicial factfinding into
the realm of underlying conduct. “[W]hatever [a defendant] says, or fails to say, about
superfluous facts cannot license a later sentencing court to impose extra punishment.”
Descamps, 133 S. Ct. at 2289. Therefore, “an ambiguous record regarding whether a defendant
actually had the opportunity ‘to cease and desist or withdraw from his criminal activity’ does not
suffice to support the ACCA enhancement.” Kirkland v. United States, 687 F.3d 878, 895 (7th
Cir. 2012). Thus, Defendant’s robbery charges must be treated as a single offense. See, e.g.,
Toomer, 2017 U.S. Dist. LEXIS 63996, at *11.
Given its implications here, United States v. Siegel, 477 F.3d 87, 93 (3d Cir. 2007),
merits separate mention. Post-Descamps, citing to Siegel, our Court of Appeals reaffirmed that

10

an unobjected-to PSR can be a Shepard document within this Circuit. United States v. Doe, 810
F.3d 132, 147 (3d Cir. 2015). Although not all Circuit Courts agree that a PSR is Shepardapproved, ours apparently intended that this aspect of Siegel survive Descamps. This conclusion
is not obviously inconsistent with limited use of the PSR as endorsed in Thompson and similar
cases. Siegel went further: the Court looked to the PSR’s factual account of the offense conduct
– which described the defendant physically restraining and forcing his victim – to determine that
the offense was a crime of violence for purposes of U.S.S.G. § 4B1.2. Siegel,477 F. 3d at 93.
More than one court has opined that this part of Siegel was abrogated by Descamps and Mathis.
United States v. Ballard, No. 03-810, 2017 U.S. Dist. LEXIS 105766, at **8-9 (E.D. Pa. July 7,
2017); Singleton, 2017 U.S. Dist. LEXIS 64004, at *27, n. 10.
The “different occasions” requirement goes to the heart of ACCA’s purpose, and its
application implicates grave constitutional concerns. The “different occasions” language
“plainly expresse[d] that concept of what is meant by a ‘career criminal,’ that is, a person who
over the course of time commits three or more of the enumerated kinds of felonies and is
convicted therefor…[the language is to] insure that its rigorous sentencing provisions apply only
as intended in cases meriting such strict punishment.” 134 Cong. Rec. S17, 360 (daily ed. Nov.
10, 1988) (statement of Sen. Joseph Biden). Further, “only a jury, and not a judge, may find
facts that increase a maximum penalty, except for the simple fact of a prior conviction.” Mathis,
136 S. Ct. at 2252. Thus, rejecting a focus on non-elemental facts avoids unfairness to
defendants, who – particularly at a plea hearing -- might not contest what does not matter under
the law. Id. at 53. Potential inaccuracies in the record “should not come back to haunt the
defendant many years down the road by triggering a lengthy mandatory sentence.” Id. at 2253.

11

This matter touches on the intersection of several areas of law – involving the vital
principles underlying cases such as Shepard, Descamps, Mathis, and Apprendi v. New Jersey,
530 U.S. 466 (2000) -- which are “constantly evolving and ‘not always very logical’ …”
Kirkland, 687 F. 3d at 883. In this particular case, limiting the permissible extent of the Court’s
reliance on the factual account in the PSR ensures fidelity to the Constitution and the statute, as
well as to precepts of logic and fairness.
CONCLUSION
In sum, the Court is unable to conclude that Defendant’s ACCA sentence was supported
by the requisite number of predicate offenses. Defendant’s Motion will be granted, and a
resentencing hearing scheduled. An appropriate Order follows.
BY THE COURT:

/s/Donetta W. Ambrose
_______________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

Dated: ______8/31/17_______, 2017

12

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA
v.

)
)
) CR No. 6-97
) CV No. 16-795

DEION LAMONT WILSON
ORDER
AND NOW, this 31stday of August, 2017, it is hereby ORDERED, ADJUDGED, and
DECREED that Defendant’s Motion to Vacate [88] is GRANTED. This matter is scheduled for
resentencing on September 28, 2017, at 10:00 AM in Courtroom 3B before the undersigned.

BY THE COURT:

/s/Donetta W. Ambrose
_______________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

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