Kemp -v- United States

Filing 14

ORDER GRANTING MOTION PURSUANT TO 28 U.S.C. § 2255 1 . Signed by Judge James D. Todd on 12/16/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BILLY ED KEMP,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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Civ. No. 16-2250-JDT-egb
Crim. No. 05-10090-JDT

ORDER GRANTING MOTION PURSUANT TO 28 U.S.C. § 2255

Movant Billy Ed Kemp, through counsel, filed a motion pursuant to 28 U.S.C. § 2255
on April 15, 2016, challenging the prior convictions that were used to enhance his sentence
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Kemp relies on the
decision in Johnson v. United States, 135 S. Ct. 2551 (2015), to support the contention that
his ACCA-enhanced sentence is unconstitutional.
In 2005, Kemp was indicted on one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g). He was convicted by a jury on January17, 2007. At
sentencing, the Court determined that Kemp had more than three prior convictions for violent
felonies that qualified him as an armed career criminal under the ACCA. See 18 U.S.C.
§ 924(e); U.S.S.G. § 4B1.4(a). Consequently, Kemp was sentenced under the ACCA to a
180-month term of imprisonment and a three-year term of supervised release.

At least three of Kemp’s prior felony convictions were for taking indecent liberties
with a child.1 Those offenses qualified as violent felonies only under the ACCA’s residual
clause, which provides that a violent felony is any crime that “otherwise presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). In Johnson, 135
S. Ct. 2551, the Supreme Court held the residual clause is unconstitutionally vague and that
increasing a defendant’s sentence under the clause is, therefore, a denial of due process. Id.
at 2563. The decision in Johnson was held to be retroactive and thus applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257 (2016).
On December 15, 2016, the Court held a status conference with the attorneys in this
matter. Counsel and the Court agreed that, pursuant to the decision in Johnson, Kemp’s prior
convictions for taking indecent liberties with a child can no longer be counted as violent
felonies under the ACCA. Absent those convictions, Kemp has only two predicate
convictions and no longer qualifies as an armed career criminal. The United States has filed
a response to the § 2255 motion confirming that it does not oppose Kemp’s request for relief.
Accordingly, the Court finds that Kemp is entitled to relief from the enhanced sentence that
was imposed pursuant to the ACCA, and the motion under 28 U.S.C. § 2255 is GRANTED.

1

The Presentence Investigation Report (“PSR”) indicates that Kemp pled guilty in
Mitchell County, North Carolina to ten counts of Taking Indecent Liberties with a Minor. (PSR
§§ 29-31 at 9-10.) The counts were merged for sentencing into three groups. The North
Carolina Superior Court imposed three consecutive sentences of ten years in No. 87CRS269; ten
years in Nos. 87CRS271,273, 274 and 275; and six years in Nos. 87CRS276, 277, 278, 279 and
280. (See also PSR at 17 (“We qualify Mr. Kemp as an Armed Career Criminal “based on two
(2) generic Burglaries and three (3) prior convictions for Taking Indecent Liberties with a
Minor.”).)
2

An amended judgment will be prepared in the criminal proceeding, sentencing Kemp to time
served and a three-year period of supervised release in accordance with the modified
guideline calculations and the agreement of the parties.
The Clerk is also directed to prepare a judgment in this civil case.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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