United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose, Senior Judge, U.S. District Court
September 7, 20016, a jury convicted Defendant of violating
18 U.S.C. §§ 922(g)(1) and 924(e)(1). On December
8, 2006, Defendant was sentenced to a term of imprisonment of
262 months, followed by a term of supervised
release. His sentence was based, in part, on the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). Before the Court is Defendant's Motion
pursuant to 28 U.S.C. § 2255, in which he contends that
his sentence is invalid in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). For the following
reasons, Defendant's Motion will be granted, and the
matter scheduled for resentencing.
is available under Section 2255 only under exceptional
circumstances, when the claimed errors of law are "a
fundamental defect which inherently results in a complete
miscarriage of justice, " or "an omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424
(1962). A district court need not hold an evidentiary hearing
on a Section 2255 motion if the motion, files, and records
show conclusively that the defendant is not entitled to
relief. United States v. Ritter, 93 Fed.Appx. 402
(3d Cir. 2004). In this case, a hearing is unnecessary, and
the Motion will be disposed of on the record.
case, the Presentence Report (“PSR”) identifies
the following convictions, in addition to a conviction for
possession with intent to deliver cocaine, as the bases for
an ACCA determination: aggravated assault, at Allegheny
County Court of Common Pleas (“Common Pleas”)
Docket No. 199212035; robbery at Common Pleas Docket No.
199403301; and robbery at Common Pleas Docket No. 199403299.
sentencing Court, without pertinent discussion, adopted the
findings of the PSR and sentenced Defendant accordingly.
Defendant does not now contest the Court's reliance on
the drug offense, but argues that the remaining offenses are
no longer valid predicates. The Government argues to the
contrary, and urges that both aggravated assault and robbery
qualify under ACCA's “force” clause. In this
context, the Government bears the burden of demonstrating
that an ACCA sentence is supported on grounds other than the
now-invalid residual clause. See, e.g.,
United States v. Smith, No. 92-146, 2016 U.S. Dist.
LEXIS 113484, at *6 (W.D. Pa. Aug. 25, 2016).
parties agree that Defendant's aggravated assault
conviction involved a violation of 18 Pa.C.S. §
2702(a)(1), obviating the need to delve into divisibility, or
which statutory subsection undergirds the offense. Although
the Government's arguments to the contrary are
well-taken, at this time, I decline to depart from those
decisions that have found that a violation of Section
2702(a)(1) is not a qualifying predicate offense for ACCA
purposes. United States v. Fisher, No. 1-796, 2017
U.S. Dist. LEXIS 60825, at **10-17 (E.D. Pa. Apr. 21, 2017);
United States v. Weygandt, 9-324, 2017 U.S. Dist.
LEXIS 29251, at * (W.D. Pa. Mar. 2, 2017); United States
v. Harris, No. 6-268, 2016 U.S. Dist. LEXIS 117070, at
**42-43 (M.D. Pa. Aug. 31, 2016).
his aggravated assault conviction cannot serve as a predicate
offense, the validity of Defendant's ACCA sentence
depends on whether his robbery convictions supply two violent
felonies to add to his extant drug offense. The pertinent
robbery convictions arose under 18 Pa.C.S. § 3701, which
provided, in pertinent part, as follows:
(a) Offense defined.-
(1) A person is guilty of robbery if, in the course of