United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge.
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).
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
Factual Background & Procedural History
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).
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.(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).
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).
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 Fed.Appx. 552 (3d Cir.
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).
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.
Standard of Review
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 the sentence 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).
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."
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 the enumerated
offenses clause. Id. at 2563. Johnson is