Bentley v. United States

JEFFREY BENTLEY, Movant/Defendant, v. UNITED STATES OF AMERICA, Respondent/Plaintiff.

Civil Action No. 16-518 (MN)

Criminal Action No. 05-39 (MN)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

March 17, 2020

MEMORANDUM OPINION¹

Tieffa Harper, Assistant Federal Public Defender, Federal Public Defender's Office, Wilmington, Delaware. Attorney for Movant.

Alexander Ibrahim. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

March 17, 2020

Wilmington, Delaware

NOREIKA, U.S. District Judge

I. INTRODUCTION

Movant Jeffrey Bentley ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (D.I. 33). The Government filed a Response in opposition. (D.I. 61). For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.

II. BACKGROUND

In April 2005, the federal grand jury for the District of Delaware returned a three-count indictment charging Movant with: (1) possession of a firearm by a person prohibited, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e)(1); (2) Hobbs Act Robbery, in violation of 18 U.S.C. § 1951; and (3) using and carrying a firearm during a crime of violence, that is, Hobbs Act Robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (D.I. 2). Movant pled guilty to Counts One and Three in February 2006, in exchange for which the Government agreed to dismiss Count Two, the Hobbs Act Robbery charge. (D.I. 21). At the time of his plea colloquy and sentencing, Movant had accumulated at least nine prior felonies, most relating to robbery or burglary. (D.I. 61 at 1; D.I. 61, Exh. A.). In the plea agreement, Movant stipulated that prior armed robbery convictions in Virginia in 1988 and 1989, and a Delaware felony conviction for reckless endangering in 1991 were violent felonies. (D.I. 21 ¶ 4). During Movant's sentencing hearing, the Honorable Gregory M. Sleet reviewed the Sentencing Guidelines calculation and asked if there was any objection to the offense level because Movant was considered to be an armed career criminal under the Guidelines. (D.I. 40-2 at 6-7,10). The Armed Criminal Career Act ("ACCA") predicate convictions were not expressly identified during the sentencing hearing. (D.I. 40 at 3 n.1; D.I. 40-2). Judge Sleet imposed the mandatory minimum 180 months of imprisonment for Count Oneunder the ACCA, and the mandatory minimum 84 months of imprisonment for Count Three, for a total of 264 months. (D.I. 28; D.I. 40-2). Movant did not appeal his convictions or sentence.

III. DISCUSSION

Movant filed the instant Motion in 2016, after the Supreme Court invalidated the ACCA's residual clause definition of a "violent felony" in Johnson v. United States, 135 S.Ct. 2551 (2015). Movant contends that his three prior convictions for reckless endangerment and armed robbery identified in the plea agreement no longer qualify as violent felonies after Johnson, because the two Virginia armed robbery convictions and the Delaware first degree reckless endangerment conviction relied on the ACCA's now-void residual clause. The Government contends that the Court should deny the Motion because Movant has multiple other prior ACCA qualifying convictions for breaking and entering with intent to commit larceny in North Carolina, in violation of N.C. General Statute § 14-54(a) ("G.S. § 14-54(a)"). (D.I. 61 at 1-2). Given Movant's apparent concession that Movant's prior North Carolina felony convictions are relevant to deciding whether to grant relief on his Motion (D.I. 49 at 2), the Government's contention that Movant's prior North Carolina felony convictions "exceed the required number of ACCA predicates" (D.I. 61 at 4 n.4), Movants desire to resolve his § 2255 Motion (D.I. 54), and the PSR and convictions documents provided by the Government, the Court views the issue to be whether three of Movant's prior convictions for breaking and entering under North Carolina G.S. § 14-54(a) still qualify as violent felonies under the ACCA.²

A. The ACCA and Johnson

A person convicted under 18 U.S.C. § 922(g) faces a maximum sentence of 10 years. See 18 U.S.C. § 924(a)(2). The ACCA, however, substantially increases the sentence to a mandatory minimum term of 15 years if the person has three previous convictions for a "violent felony or a serious drug offense, or both." See 18 U.S.C. § 924(e)(1). A prior offense qualifies as a "violent felony" under the ACCA if it is "punishable by imprisonment for a term exceeding one year" and it:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of 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.

18 U.S.C. § 924(e)(2)(B). Subsection (i) above is known as the "elements clause" or "force clause," the first portion of subsection (ii) - "burglary, arson, or extortion" - is known as the ACCA's "enumerated clause," and the remainder of subsection (ii) is known as the ACCA's"residual clause." See Stokeling v. United States, 139 S.Ct. 544, 556 (2019). In 2015, the Supreme Court held that the ACCA's residual clause definition for a "violent felony" is unconstitutionally void for vagueness under the Due Process Clause. See Johnson, 135 S.Ct. at 2556-60. The Supreme Court made Johnson retroactively applicable on collateral review in Welch v. United States, 136 S.Ct. 1257, 1264 (2016). However, "Johnson did not disturb the other parts of the ACCA, including the ACCA's other two means of determining whether a potential predicate crime is a crime of violence: namely, the 'elements' [force] clause at § 924(e)(2)B)(i) dealing with the use or threatened use of force, and the 'enumerated offense' clause at § 924(e)(2)(B)(ii)." United States v. Parks, 237 F. Supp. 3d 229, 235 (M.D. Pa. 2017).

The issue currently before the Court is whether Movant continues to have three prior convictions that each qualify as a "violent felony" without reference to the ACCA's now-unconstitutional residual clause. The Government contends that Movant's prior breaking and entering with intent to commit larceny convictions in North Carolina qualify as violent felonies under the ACCA because the elements of those crimes are no broader than the elements of generic burglary as defined in the ACCA's enumerated clause.

B. Categorical Approach

Courts apply what is known as the "categorical approach" to determine if a prior conviction qualifies as a predicate violent felony under the ACCA's elements/force clause and the enumerated clause. See Descamps v. United States, 570 U.S. 254, 257 (2013); Taylor v. United States, 495 U.S. 575, 600 (1990). Under this approach, a federal "sentencing court may look only to the elements of a defendant's prior conviction, not to the particular facts underlying those convictions." United States v. Abbott, 748 F.3d 154, 157 (3d Cir. 2014). The relevant question is "whether the least culpable conduct covered by the statute at issue" forming the basis of thedefendant's predicate conviction has as an element the use, attempted use, or threatened use of physical force. See Stokeling, 139 S.Ct. at 556. In order to determine what a state statute covers under the categorical approach, federal courts rely on the interpretation of the offense issued by the courts of the state in question. Id.; see also United States v. Winston, 850 F.3d 677, 684 (4th Cir. 2017). "If the elements of the prior conviction are identical to (or narrower than) the elements of the []ACCA crime, the prior conviction can serve as an ACCA predicate." United States v. Daniels, 915 F.3d 148, 150 (3d Cir. 2019). "But if the statute sweeps more broadly than the [] [ACCA's 'violent felony' definition], a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Descamps v. United States, 570 U.S. 254, 261 (2013); see also Mathis v. United States, 136 S.Ct. 2243, 2248-49 (2016) (explaining that, if the state statute of conviction is indivisible, i.e., its elements define a single crime, and the conduct criminalized under the statute is broader than the ACCA definition, a conviction for that crime may not be the grounds for an enhanced sentence).

To succeed under the categorical approach, a defendant must demonstrate "a realistic probability, not a theoretical possibility," that the statute at issue could be applied to conduct that does not constitute a violent felony by "at least point[ing] to his own case or other cases in which the . . . courts in fact did apply the statute in the . . . manner for which he argues." See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). If "the law defines the crime in such a way that it can be committed using either violent or non-violent force, then the crime is not a violent felony under [the] ACCA, even if the defendant actually used violent force in committing the crime." United States v. Haight, 892 F.3d 1271, 1279 (D.C. Cir. 2018).

The question for the sentencing court in the elements-clause context is whether every defendant convicted of that state or federal felony must have used, attempted to use, or threatened to use physical force against the person of another in order to have beenconvicted, not whether the particular defendant actually used, attempted to use, or threatened to use physical force against the person of another in that particular case. If the answer to that question is "no," and the statute forming the basis for the defendant's previous state or federal conviction criminalizes conduct that does not involve "the use, attempted use, or threatened use of physical force against the person of another," then a conviction under that statute may not serve as a violent-felony predicate under the elements clause, assuming that statute is an "'indivisible' statute - i.e., one not containing alternative

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