United States v. Nelson

UNITED STATES OF AMERICA v. ROBERT NELSON, Defendant

CRIMINAL NO. 1:09-CR-211

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

October 17, 2017

(Chief Judge Conner)

MEMORANDUM

Defendant Robert Nelson ("Nelson") pled guilty in December of 2010 to charges of conspiring and possessing with intent to distribute cocaine base and cocaine, and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e). Because Nelson had three or more qualifying prior convictions under the Armed Career Criminal Act ("ACCA" or "the Act"), his statutory maximum sentencing exposure was enhanced to life imprisonment. See 18 U.S.C. § 924(e). The court sentenced Nelson to three concurrent terms of 235 months' imprisonment on September 30, 2011. (Doc. 280).

Nelson now moves the court to vacate his 235-month sentence in light of the United States Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the ACCA's residual clause as unconstitutionally vague. (Doc. 328). For the reasons that follow, the court will grant Nelson's motion and schedule resentencing forthwith.

I. Factual Background & Procedural History

On July 1, 2009, a federal grand jury sitting in Harrisburg, Pennsylvania, returned a two-count indictment charging Nelson and codefendant Steven Ray Moreland with possession with intent to distribute (Count I) and conspiracy to distribute (Count II) fifty grams and more of cocaine base and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. 1). The grand jury returned a superseding indictment on September 23, 2009, restating Counts I and II against Nelson and Moreland and further charging Nelson with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e), to wit: a Smith and Wesson 9 millimeter pistol (Count III). (Doc. 28).

Nelson entered a plea of guilty, without a written agreement, to all three counts of the superseding indictment. (See Doc. 195). During the guilty plea proceeding, the court advised Nelson that his guilty plea would carry, inter alia, a fifteen year mandatory minimum term of imprisonment pursuant to the ACCA.¹ (Doc. 210 at 9:6-10:6). The court further advised that the plea would increase the maximum sentencing exposure on Count III from ten years to life imprisonment. (See id. at 9:20-10:6). Nelson stated that he understood his sentencing exposure, (see id.), and the court accepted his plea of guilty to Counts I, II, and III. (Doc. 195)

The United States Probation Office prepared a presentence report ("PSR") which calculated Nelson's offense level and criminal history category pursuant to the United States Sentencing Guidelines. The PSR grouped all three counts and reflected an initial offense level of 30 and criminal history category of III. (See PSR ¶¶ 20, 26, 42). Because Count III implicated the ACCA, the PSR recommended application of the Guidelines' armed career criminal provisions. (Id. ¶¶ 29, 42). Specifically, the PSR determined that Nelson was an armed career criminal who had "used or possessed a firearm . . . in connection with crimes of violence and a controlled substance offense," subjecting him to an increased offense level of 34 and enhanced criminal history category of VI under Guidelines § 4B1.4(b)(3)(A) and (c)(2). (Id. ¶¶ 29, 42). The report established a Guidelines range of 262 to 327 months. (Id. ¶ 60).

At sentencing on September 30, 2011, the court sustained Nelson's objection to application of the enhanced armed career criminal provision under Guidelines § 4B1.4(b)(3)(A) and (c)(2). (Doc. 282 at 61:21-66:19). The court instead designated Nelson an armed career criminal under the otherwise applicable provisions of the Guidelines. (See id. at 67:14-25); see also U.S.S.G. § 4B1.4(b)(3)(B), (c)(1). With an adjusted offense level of 33 and criminal history category of IV, Nelson's Guidelines range at sentencing was 188 to 235 months. (Id. at 67:14-68:4). The court sentenced Nelson to 235 months' imprisonment on each of Counts I, II, and III, to be served concurrently. (Doc. 280). The Third Circuit affirmed Nelson's judgment on direct appeal on October 13, 2012. United States v. Nelson, 488 F. App'x 552 (3d Cir. 2012).

Nelson thereafter filed his first motion (Doc. 288) to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He raised claims of judicial and prosecutorial misconduct in addition to charging ineffective assistance of trial and appellate counsel. The court denied Nelson's motion by memorandum and order (Docs. 313-14) dated December 12, 2013. The Third Circuit denied Nelson's request for a certificate of appealability. (See Docs. 315, 317). On October 30, 2015, Nelson filed a "memorandum of law" seeking vacatur of his conviction and immediate release from custody on the basis that his conviction was the result of "fraud on the court." (Doc. 320). In deference to his pro se status, we construed Nelson's filing as a motion pursuant to § 2255 and denied same as an improper second or successive petition filed without prior authorization by the Third Circuit. (Doc. 321); see 28 U.S.C. §§ 2244(3)(A), 2255(h). Nelson appealed, (Doc. 323), and the Third Circuit again declined to issue a certificate of appealability. (Doc. 326).

Nelson filed the instant motion (Doc. 328) to vacate his sentence on June 24, 2016, through appointed counsel. We issued a briefing schedule, (Doc. 333), and thereafter directed the parties to file supplemental briefing addressing the impact of intervening Supreme Court and Third Circuit decisional law on Nelson's ACCA status. (Doc. 340). Nelson's motion is fully briefed, (see Docs. 328, 336-37, 341, 345-46) and ripe for disposition.

II. Standard of Review

Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. 28 U.S.C. § 2255. Courts may afford relief under § 2255 on a number of grounds including, inter alia, "that thesentence was imposed in violation of the Constitution or the laws of the United States." 28 U.S.C. § 2255(a); see also R. GOVERNING § 2255 CASES 1(a). The statute provides that, as a remedy for an unlawfully-imposed sentence, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).

III. Discussion

The ACCA compels a mandatory minimum sentence of fifteen years' imprisonment for defendants convicted under 18 U.S.C. § 922(g) who have acquired three prior, adult convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). The Act defines the term "violent felony" to include any offense punishable by imprisonment for more than one year which falls within one of three categories: (1) crimes having "as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) crimes of burglary, arson, or extortion, or which involve use of explosives; and (3) crimes which "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(i)-(ii). Courts refer to the first clause as the "force clause," the second as the "enumerated offenses clause," and the third as the "residual clause."

The Supreme Court in Johnson invalidated only the residual clause of the ACCA as unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Consequently, a defendant may still qualify for an enhanced sentence under the ACCA if they have three or more prior, adult convictions which qualify under the force clause or theenumerated offenses clause. Id. at 2563. Johnson is retroactively applicable to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).

Nelson contends that, in the wake of Johnson, his 235-month sentence at Count III violates the Constitution and laws of the United States and is in excess of the otherwise-applicable maximum sentence of ten years. (Doc. 328 at 3-4). Nelson further asserts that his erroneous designation as an armed career criminal under Guidelines § 4B1.4(b)(3)(B) and (c)(3) increased his Guidelines sentencing exposure and deprived him the benefit of a retroactive reduction under Amendment 782. (See Doc. 328 at 3 & n.4). Nelson concedes that his prior conviction for unlawful delivery of cocaine and marijuana is a "serious drug offense" as defined in 18 U.S.C. § 924(e)(2)(A) and constitutes the first of three ACCA strikes against him. (See Doc. 328 at 3 n.3). He maintains, however, that neither of his remaining convictions—to wit, a 1980 conviction for burglary, and a 1991 conviction for robbery, involuntary manslaughter, and third-degree murder—is a predicate offense under the vestigial clauses of the ACCA. (Id. at 7-18).

Before we turn to the merits of Nelson's motion, we must address several threshold issues raised by the government: first, whether the court lacks jurisdiction to entertain Nelson's second or successive § 2255 motion; and second, whether Nelson has procedurally defaulted any challenge to his ACCA designation. (See Doc. 336 at 11-16, 34-37).

A. Second or Successive Motion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") strengthened the procedural and substantive perquisites for second or successivemotions under 28 U.S.C. § 2255. See Goldblum v. Klem, 510 F.3d 204, 216 (3d Cir. 2007). The AEDPA contemplates only two types of second or successive motions: (1) those based on newly discovered evidence sufficiently undermining guilt, and (2) those grounded in "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h).

Before filing a motion with the district court, a defendant must first move in the appropriate court of appeals for an order authorizing a second or successive motion. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h). The...