United States District Court, W.D. Pennsylvania
Joy Flowers Conti, Chief United States District Judge.
Defendant Aaron Lamont Williams (“Williams”), a prisoner in Federal custody, filed a motion to correct sentence pursuant to 28 U.S.C. § 2255. Williams argues that after the Supreme Court’s decision in Descamps v. United States, 133 S.Ct. 2276 (2013), he no longer qualifies as an armed career criminal and, therefore, is entitled to immediate release. (ECF No. 47 at 3.) At his June 12, 2009 sentencing hearing, this court determined that Williams was an armed career criminal, and imposed the mandatory minimum term of imprisonment of 180 months. (ECF No. 41.) The government argues that Williams is ineligible for a sentencing reduction because he is still properly classified as an armed career criminal. (ECF No. 55 at 3.)
Because, as discussed below, Williams has three prior convictions for serious drug offenses that classify him as an armed career criminal, even after Descamps, the court will deny Williams’ motion.
I.FACTUAL AND PROCEDURAL BACKGROUND
A. Williams’ Prior Convictions and Sentence in This Case
On February 6, 2009, Williams pleaded guilty in this court to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (ECF No. 9 (Indictment); ECF No. 31 (Guilty Plea); ECF No. 42 at 2.) Williams was sentenced pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because he had three prior convictions for serious drug offenses. (ECF No. 58 (Transcript of 6/12/09 Sentencing Hearing) (“H.T.”) at 3.)
At the sentencing hearing, the court listed the three prior drug offense convictions that qualified as predicate offenses under the ACCA: (1) a July 9, 1998 conviction for possession with intent to deliver a controlled substance at Docket No. 1283-1997 in the Court of Common Pleas of Washington County, Pennsylvania, (2) a November 3, 2000 conviction for possession with intent to deliver cocaine at Docket No. 2607-1999 in the Court of Common Pleas of Washington County, Pennsylvania, and (3) a January 16, 2002 conviction for possession with the intent to deliver crack cocaine at Docket No. 1200-2001 in the Court of Common Pleas of Washington County, Pennsylvania. (Id. at 5.) These same prior convictions were specifically set forth in the single-count Indictment to support the charge that Williams violated both the felon in possession statute (18 U.S.C. § 922(g)) and the ACCA (18 U.S.C. § 924(e)(1)) by possessing a firearm on or about April 15, 2008. (ECF No. 9.) As noted above, Williams pleaded guilty to violating both statutes on February 6, 2009. (ECF No. 31.)
At the sentencing hearing, this court determined that Williams was subject to the enhanced penalties set forth in the ACCA, which increased the applicable offense level under the federal sentencing guidelines from 21 to 30, and triggered a 180-month mandatory minimum sentence of imprisonment. (H.T. at 5-6.) The applicable advisory guideline range for imprisonment was 180-210 months, and the court sentenced Williams to a term of imprisonment of 180 months, the statutory mandatory minimum sentence under the ACCA. (Id. at 5-7, 16-17.) Had the ACCA not applied to Williams, he would have been subject to a maximum term of imprisonment of 120 months under 18 U.S.C. § 924(a)(2). The maximum term of imprisonment under the ACCA is life. 18 U.S.C. §§ 924(e); 3559(a)(1).
At no time during his sentencing hearing did Williams object to the court’s recitation of his three prior state drug convictions, classification as an armed career criminal based upon those predicate offenses, or calculation of the applicable sentencing guidelines range. (Id. at 3-5, 8-11, 14, 25.) Although Williams originally argued that his prior conviction for the crime of escape was not a violent felony under the ACCA, at the sentencing hearing Williams conceded that his three prior felony drug convictions subjected him to the provisions of the ACCA, making any argument about the escape conviction moot. (Id. at 3-4.) Williams had also been convicted in state court of terroristic threats in July 1998.
In June 2014, Williams filed a § 2255 motion arguing that he no longer qualifies as an armed career criminal after Descamps. (ECF No. 42 at 1.)
B. Williams’ § 2255 Motion and the Stay Pending Abbott and Brown
Williams argues, among other things, that a conviction under Pennsylvania law for manufacturing, delivering, or possessing a controlled substance can never be an ACCA-predicate offense under Descamps. (ECF No. 42 at 3-4.) Williams contends that the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act (“PCSA”), 35 Pa. Stat. § 780-113, the statute under which he was convicted for two of the three predicate offenses, is an indivisible statute, making it improper, under Descamps, for this court to consider the relevant underlying documents related to his PCSA convictions to determine whether they qualify as predicate offenses under the ACCA. (ECF No. 42 at 3-4.)
When a statute is divisible, courts may use a modified categorical approach, as opposed to the categorical approach, to determine whether a prior conviction qualifies as a predicate offense under the ACCA. Descamps, 133 S.Ct. at 2279. Under the modified categorical approach, sentencing courts are permitted to consult a limited class of relevant documents, such as indictments and plea colloquies, to determine which element played a part in defendant’s conviction. Id. at 2282. In contrast, the categorical approach only permits sentencing courts to examine the elements of the statute under which the defendant was convicted. Id. at 2281. The court in Descamps recognized that the categorical approach applies to statutes that are indivisible and the modified categorical approach applies to statutes that are divisible. Id. at 2279. Under Descamps, a statute is divisible when it sets out a list of alternative elements that “renders opaque” which element applied to the defendant’s conviction. Id. at 2283.
On June 19, 2014, this court granted Williams’ request to stay the proceedings pending the resolution of two cases then-pending in the Court of Appeals for the Third Circuit which implicated the arguments being advanced by Williams under Descamps: United States v. Abbott, No. 13-2216 (3d Cir.), and United States v. Brown, No. 13-4442 (3d Cir.). (ECF No. 44 at 2.)
On April 4, 2014, the court of appeals decided United States v. Abbot, 748 F.3d 154 (3d Cir. 2014). In Abbott, the court held that the modified categorical approach applies to the PCSA because it lists multiple, alternative elements. Abbott, 748 F.3d at 158. In other words, after Abbott, when determining whether a conviction under the PCSA qualifies as a predicate offense for ACCA purposes, a court may consider the relevant court documents of the underlying conviction. Id. at 157.
On September 2, 2014, the Court of Appeals for the Third Circuit issued its opinion in United States v. Brown, 765 F.3d 185 (3d Cir. 2014), and held that the categorical approach applies to a conviction for terroristic threats. Brown, 765 F.3d at 193. In other words, for a conviction for terroristic threats to qualify as a “crime of violence” under the career offender enhancement of the sentencing guidelines, U.S.S.G. §4B1.1(a), the statute’s elements must be at least the same as the generic crimes set forth in that guideline, which has an analog in the ACCA. Id. at 188 & n.1. The ACCA, at § 924(e)(2)(B)(ii), and the guidelines, at § 4B1.2(a)(2) include a similar list of “generic crimes, ” that being “burglary, arson, or extortion, ” or those that involve “the use of explosives, or otherwise involve conduct that presents a serious potential risk of physical injury to another.” The court concluded that a conviction under 18 Pa. Cons. Stat. § 2706(a)(1) could not be a crime of violence because the crime threatened is not an element of the offense, and may or may not involve violence. Id. at 193; see Descamps, 133 S.Ct. At 2290. Although Brown interpreted the career offender sentencing guideline, the court discussed and relied upon Descamps’ analysis of the ACCA’s analog provisions.
After Brown was decided, the stay was automatically lifted and Williams filed a brief in support of his § 2255 motion. (ECF No. 47.) The government filed its response on October 27, 2014, and Williams filed a reply on November 3, 2014. (ECF Nos. 55, 56.)
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255, a prisoner who claims “the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States” or who claims that “the sentence was in excess of the maximum authorized by law” may move the court which imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). The court shall grant a prompt hearing to the defendant “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). If the court finds that the sentence was not authorized by law or has infringed on the prisoner’s constitutional rights, the court shall vacate and set the judgment aside and shall discharge or resentence the prisoner, or grant a new trial, or “correct the sentence as may appear appropriate.” Id.
A. Statute of Limitations
As a threshold matter, the court must assess whether Williams’ motion was timely filed. The statute of limitations for a § 2255 motion is one year, which runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f) (emphasis added). Williams’ conviction became final in June 2009. (ECF No. 41.) Williams filed the instant § 2255 motion in June 2014, far outside of the one-year limitations period established by § 2255(f). Williams, however, argues that his motion is timely under § 2255(f)(3) because it was filed within one year of the United States Supreme Court’s decision in Descamps, which he asserts recognized a new right that is to be applied retroactively to cases on collateral review. (ECF No. 47 at 18-28.)
“The overwhelming weight of authority interpreting [Descamps] has actually held that there is no indication that the Supreme Court intended for its holding to be applied retroactively.” United States v. Imm, No. 03-063, 2014 WL 6774072, at *2 (W.D. Pa. Dec. 1, 2014); see United States v. Wilson, No. 06-097, 2014 WL 3339632, at *2 (W.D. Pa. July 8, 2014) (citing United States v. Patrick, No. 06-034, 2014 WL 2991857, at *2 (E.D. Ky. July 2, 2014)). To date, the Supreme Court has not made Descamps retroactive to case on collateral review. Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014).
In this case, however, the government affirmatively waives the retroactivity defense and, in turn, its statute of limitations defense. (ECF No. 55 at 2 n. 2.) The court must honor this waiver, as it would be an abuse of discretion to ignore the deliberate waiver of a limitations defense. See Wood v. Milward, 132 S.Ct. 1826, 1834 (2012). Under these circumstances, Williams’ motion is considered to be timely under 28 U.S.C. § 2255(f)(3) ...