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United States v. Wilson

United States District Court, W.D. Pennsylvania

August 31, 2017

UNITED STATES OF AMERICA
v.
DEION LAMONT WILSON CV No. 16-795

          OPINION AND ORDER

          Donetta W. Ambrose, Senior Judge, U.S. District Court

         SYNOPSIS

         On 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.[1] 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.

         OPINION

         I. APPLICABLE STANDARDS

         Relief 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.

         II. DEFENDANT'S MOTION

         In this 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.

         The 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 Defendant does not now contest the Court's reliance on the drug offense, but argues that the remaining offenses are no longer valid predicates.[2] The Government argues to the contrary, and urges that both aggravated assault and robbery qualify under ACCA's “force” clause.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).

         A. Assault

         The 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);[3] United States v. Harris, No. 6-268, 2016 U.S. Dist. LEXIS 117070, at **42-43 (M.D. Pa. Aug. 31, 2016).

         B. Robbery

         a. Predicate Offense

         Because 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 ...

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