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United States v. Ballard

United States District Court, E.D. Pennsylvania

July 10, 2017

UNITED STATES
v.
RICHARD BALLARD

          MEMORANDUM

         This Court must determine if Richard Ballard's prior convictions still serve as predicate offenses under the Armed Career Criminal Act (“ACCA”) in the wake of the United States Supreme Court's invalidation of ACCA's residual clause in Johnson v. United States, 135 S.Ct. 2551 (2015), and clarification on the categorical approach in Mathis v. United States, 136 S.Ct. 2243 (2016). In 2006, the Court sentenced Ballard to a term of imprisonment of 180 months, the mandatory minimum required by ACCA. Ballard's classification as an armed career offender was based on three Pennsylvania state law convictions, two for first-degree robbery in 1975 and one for drug trafficking in 1986.

         Ballard, now in his sixties and on supervised release, moves to correct his sentence pursuant to 28 U.S.C. § 2255. The Government contends that, because the Court makes this determination on collateral review, Ballard bears the burden of showing that he was sentenced under the invalidated residual clause or that his sentence constitutes a miscarriage of justice. The Court rejects those arguments. For the reasons that follow, the Court grants Ballard's Motion to Correct Sentence under 28 U.S.C. § 2255 and concludes that he is entitled to a resentencing.

         I. BACKGROUND

         At the age of eighteen, in 1975, Ballard pled guilty to two violations of Pennsylvania's first-degree robbery statute, 18 Pa. C.S.A. § 3701(a)(1)(i)-(iii). In 1986, Ballard was arrested and charged with possession with intent to distribute a controlled substance and subsequently pled guilty to that offense.

         Two decades later, on September 2, 2004, Ballard pled guilty to one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Two weeks later, on September 16, 2004, Ballard filed a Motion to Withdraw Guilty Plea (Doc. No. 41). By Memorandum and Order dated July 18, 2005, this Court granted that Motion as to the count for possession of a firearm in furtherance of a drug trafficking crime.

         On March 23, 2006, this Court sentenced Ballard on the remaining two counts of the Indictment. Ballard's three prior convictions, two for first-degree robbery and one for drug possession, qualified him as an armed career criminal under ACCA. Ballard was sentenced to the statutory mandatory minimum of 180 months imprisonment on the § 922(g) count, and a concurrent term of 180 months imprisonment on the § 841(a)(1) count. Ballard also received a five-year period of supervised release on the § 922(g) count, and a concurrent six-year period of supervised release on the § 841(a)(1) count.

         On June 15, 2016, Ballard filed a Motion to Correct Sentence under 28 U.S.C. § 2255 (Doc. No. 135). The United States Court of Appeals for the Third Circuit granted Ballard's application under 28 U.S.C. §§ 2244 and 2255 to file a second or successive § 2255 motion on October 21, 2016, because he presented a prima facie showing that his Motion relied on a new rule of constitutional law made retroactive on collateral review. Ballard's Motion under § 2255 is now fully briefed and ripe for review.[1]

         II. APPLICABLE LAW

         In reviewing Ballard's Motion, this Court must resolve two questions. First, would Ballard's convictions for first-degree robbery under Pennsylvania law qualify as predicate offenses for ACCA if this were a sentencing proceeding? If the Court determines that they would not qualify as predicate offenses at sentencing, the Court must answer a second question: does the nature of collateral review alter that first determination?

         Under ACCA, an individual who violates § 922(g) and who has three or more prior convictions for a “serious drug offense” or a “violent felony” is subject to an enhanced penalty- a mandatory minimum term of imprisonment of 15 years and a maximum term of imprisonment of life. 18 U.S.C. § 924(e)(1). The Act defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [“force clause”]; 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.

§ 924(e)(2)(B) (emphasis added). The italicized language in the Act's definition is known as the “residual clause.” In 2015, the Supreme Court held that the residual clause was unconstitutionally vague, reasoning that “[i]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process.” Johnson, 135 S.Ct. at 2560. In 2016, that decision was held to be a new substantive rule of law with retroactive effect on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

         Based on the ruling in Welch, this Court must determine whether Pennsylvania's first-degree robbery statute qualifies under the “force clause” of Johnson, specifically whether it “has an element the use, attempted use, or threatened use of physical force against the person of another.” In doing ...


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