Opinion and Order
CAMERON McGOWAN CURRIE, Senior United States District Judge.
Defendant, through his attorney, seeks relief pursuant to 28 U.S.C. § 2255. ECF No. 100. The Government filed a motion to dismiss or for summary judgment, as well as an opposition to Defendant's § 2255 motion. ECF Nos. 104, 105. On July 15, 2016, Defendant filed a response in opposition to the Government's motion for summary judgment as well as a cross motion for summary judgment. ECF Nos. 106, 107.
On July 19, 2011, Defendant was indicted for felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). ECF No. 1. On October 17, 2011, Defendant entered into a written plea agreement to plead guilty to the charge. ECF No. 32. As a part of the plea agreement, Defendant waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. The same day, Defendant appeared before the court and after a thorough Rule 11 hearing, entered a guilty plea to felon in possession.
A Pre-Sentence Report (PSR) concluded Defendant was an armed career criminal under the Armed Career Criminal Act ("ACCA") and faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. The PSR found that Defendant's prior convictions for Possession with Intent to Distribute Cocaine (1999) and Possession with Intent to Distribute Crack Cocaine within a ½ mile proximity of a school (2005) were serious drug offenses, and qualified as predicate convictions for ACCA purposes. A prior conviction for Resisting Arrest with Assault on an officer was found to be a "violent felony offense" that qualified as a predicate conviction for the ACCA as well. See PSR ¶¶ 34, 41, 42, ECF No. 40.
Defendant objected to the resisting arrest with assault on an officer conviction counting as a predicate conviction for the ACCA. Defense counsel's objection stated that he was unable to determine which portion of the statute Defendant was convicted under: the lesser charge of resisting or the more serious charge of assault on an officer while resisting. ECF No. 40-1. The Probation Officer noted that Defendant was convicted of S.C. Code § 16-9-320(B), the subsection for resisting with assault on an officer, instead of subsection (A), the lesser included offense. Therefore, the Probation Officer included this offense as a violent felony for ACCA purposes.
On March 7, 2012, Defendant appeared for sentencing. The court overruled Defendant's objections and sentenced him to 262 months' imprisonment. Defendant appealed his sentence, arguing that the district court erred by denying him a reduction for acceptance of responsibility.
On June 27, 2013, the Fourth Circuit docketed an appeal from the denial of Defendant's § 2255 motion. No. 13-7015. After Defendant failed to file an informal brief, that appeal was dismissed for failure to prosecute. No. 13-7015, ECF No. 5 (4th Cir. Aug. 22, 2013).
On March 31, 2014, Defendant filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Davis v. Warden, No. 5:14-188-WTH-PRL (M.D.Fl. Mar. 31, 2014). Defendant argued that he pled guilty to a non-violent offense, resisting arrest with assault, which should not have been counted as a "violent felony" under the ACCA. No. 5:14-188-WTH-PRL, ECF No. 1. However, on May 19, 2016, Defendant's § 2241 petition was "dismissed without prejudice to his filing an application for leave to file a second or successive motion in the sentencing court under 28 U.S.C. § 2255." No. 5:14-188-WTH-PRL, ECF No. 18.
On June 19, 2014, Defendant filed a § 2244 motion with the Fourth Circuit for authorization to file a successive § 2255 motion. No. 14-299. Defendant argued that a new rule announced in Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), entitled him to relief because "any element that increases the mandatory minimum [or maximum] sentence must be found by a jury, or admitted by defendant, must include `prior conviction.'" No. 14-299, ECF No. 2 at 9. Defendant also argued that his "state conviction for common law resisting arrest with assault cannot serve as an ACCA predicate." Id. at 11. On July 1, 2014, the Fourth Circuit denied Defendant's § 2244 motion. No. 14-299, ECF No. 4.
On October 26, 2015, Defendant again filed a § 2244 motion with the Fourth Circuit, seeking authorization to file a successive § 2255 motion. Defendant now argued that he was entitled to relief under Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d (2015), and his prior conviction for resisting arrest should not qualify as a predicate offense for ACCA purposes after the residual clause was held unconstitutional. No. 15-388, ECF No. 2. His § 2244 motion was denied by the Fourth Circuit on May 3, 2016. No. 15-388, ECF No. 7.
Prior to filing the instant motion, Defendant filed another § 2244 motion with the Fourth Circuit. No. 16-9183. On June 21, 2016, he received permission to file a second or successive motion under § 2255. ECF No. 99. The instant motion under § 2255 was thereafter filed on June 21, 2016. ECF No. 100.
A conviction for felon in possession typically carries a statutory maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). However, if the accused has three or more previous convictions for certain types of felonies, he is subject to an enhanced minimum sentence of fifteen
As is relevant to this case, the statute defines "violent felony" as
18 U.S.C. § 924(e)(2)(B). The first clause, § 924(e)(2)(B)(i), is typically referred to as the "use of force" clause ("has as an element the use, attempted use, or threatened use of physical force against the person of another."). The first part of the second clause, § 924(e)(2)(B)(ii), lists specific offenses — burglary, arson, extortion, offenses involving use of explosives — and is commonly denoted as the "enumerated offense" clause. Finally, the portion of § 924(e)(2)(B)(ii) covering a conviction that "otherwise involves conduct that presents a serious potential risk of physical injury to another" is generally referred to as the "residual clause."
Johnson and Welch
On June 26, 2015, the Supreme Court held that the residual clause of the ACCA violates due process as it "denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson v. United States, 576 U.S. ___, ___, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). By holding the residual clause unconstitutionally vague, the Court narrowed the predicate offenses that could serve to enhance a sentence to those that qualify under the enumerated or force clauses. The residual clause can no longer support a defendant's classification as an armed career criminal.
On April 18, 2016, the Supreme Court decided Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which held that the newly established right recognized in Johnson is retroactive to cases on collateral review, such as Defendant's case. Therefore, Defendant's § 2255 motion, filed within one year of the Johnson decision, is timely
a. ACCA Discussion
Defendant has three predicate convictions which served to qualify him for the ACCA enhancement: two felony drug offenses
In order to decide whether Defendant's conviction qualifies under the ACCA force clause, this court must determine whether resisting arrest with assault on an officer "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B).
A threshold question to be dealt with in conjunction with the violent felony analysis is that of divisibility. Statute divisibility depends on whether disjunctive language serves to create alternative elements by which the crime may be committed, or merely sets forth alternative means of satisfying a single element. Mathis v. United States, 579 U.S. ___, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). If the South Carolina statute at issue is not divisible, then the categorical approach will determine whether the violent felony standard is satisfied by the least culpable conduct criminalized by the statute. United States v. Torres-Miguel, 701 F.3d 165, 167 (4th Cir.2012) ("To determine whether a prior state conviction constitutes a predicate crime of violence justifying an enhanced federal sentence, we generally follow the categorical approach.").
The statute under which Defendant was convicted, S.C. Code § 16-9-320(B), states as follows:
While the text of the statute contains several disjunctive phrases, the jury need not determine whether a defendant assaulted, beat, or wounded a law enforcement officer. These are simply alternative means by which one can commit the crime. See State v. Tyndall, 336 S.C. 8, 518 S.E.2d 278, 284 (Ct.App.1999) ("The offense of resisting arrest requires proof that a person knowingly and wilfully assaulted, beat or wounded a law enforcement
Therefore, subsection (B) is not divisible, and only the categorical approach may be used to determine whether § 16-9-320(B) is a violent felony under the force clause of the ACCA.
ii. Violent Felony
Having determined the categorical approach applies, the court must now determine "whether the conduct criminalized by the statute, including the most innocent conduct, qualifies" as a violent felony. Torres-Miguel, 701 F.3d at 167. The force clause of the ACCA applies to an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i). As defined by the Supreme Court, "the phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Johnson 2010"). Therefore, the "most innocent conduct" criminalized under § 16-9-320(B) must require the use of violent physical force — "unwanted touching" or slight intentional physical contact is not sufficient. See id. at 139, 130 S.Ct. 1265.
The statute under which Defendant was convicted requires "proof that a person knowingly and willfully assaulted, beat or wounded a law enforcement officer during an arrest when the person resisting knew or should have known the officer was a law enforcement officer." Tyndall, 518 S.E.2d at 284. While beating or wounding an officer may satisfy the violent physical force requirement, the "most innocent conduct" of assaulting the officer may not qualify.
This court is not aware of any court that has considered whether South Carolina Code § 16-9-320(B) qualifies as an ACCA predicate offense under the force clause.
Hemingway, 734 F.3d at 332. The South Carolina statute at issue has as an element "assaulting, beating, or wounding" a law enforcement officer. As precedent from South Carolina courts makes clear, assault
Decisions regarding similar statutes are instructive in applying the South Carolina definitions of assault or assault and battery and determining whether § 16-9-320(B) has as an element the use, attempted use, or threatened use of physical force against the person of another. Federal courts to consider South Carolina common law assault have noted that, because assault can be committed without any physical contact, and assault and battery is satisfied by any "offensive touching" or slight physical contact, offenses with an element of assault or assault and battery cannot qualify as predicate offenses under the ACCA force clause. See, e.g., Hemingway, 734 F.3d at 335 (noting, as to South Carolina common law offense of ABHAN, that the Government "properly concede[d]" that Johnson 2010 "precludes reliance on the force clause to count ABHAN as an ACCA predicate offense because ABHAN can be committed even if no real force was used against the victim."); United States v. Montes-Flores, 736 F.3d 357, 369 (4th Cir. 2013) (addressing the identically worded force clause of the illegal re-entry guideline on direct appeal, and holding, as to South Carolina ABHAN, "[b]ecause ABHAN can be committed with or without force — and even when force is involved, ABHAN can be committed in a violent or nonviolent manner — a conviction for ABHAN is not categorically for a crime of violence."); United States v. Jones, 114 F.Supp.3d 310, 320-21 (D.S.C.2015) (holding that a South Carolina statute addressing assault on a correctional officer is not a qualifying offense under the ACCA force clause because it requires only physical contact, and not violent force as defined in Johnson 2010).
An assault statute similar to § 16-9-320(B) was noted by the Fourth Circuit ineligible to count as a "crime of violence" under the force clause of the career offender guideline. In United States v. Carthorne, the Fourth Circuit examined a Virginia statute criminalizing assault and battery of a police officer ("ABPO"). 726 F.3d 503 (4th Cir.2013). Although that case dealt with a defendant's categorization as a career offender, instead of under the ACCA, the career offender guideline's force and residual clauses at that time mirrored those of the ACCA.
The Fourth Circuit considered the Maryland resisting arrest by force statute, en banc, in the context of the illegal re-entry guideline. Aparicio-Soria, 740 F.3d at 153. This Maryland statute required that a defendant resist arrest "by force." Id. at 155. The court reasoned that Johnson 2010's definition of physical force "specifically excludes from consideration `the slightest offensive touching.'" Id. Therefore, the court found that Maryland's resist by force statute did not "contain as an element the use, attempted use, or threatened use of violent force capable of causing physical pain or injury against another person," because "the force required for conviction pursuant to the Maryland resisting arrest statute is merely `offensive physical contact.'" Id.
The South Carolina offense codified in § 16-9-320(B) is similar to South Carolina ABHAN and the Virginia and Maryland statutes all found by the Fourth Circuit not to qualify as predicate offenses under the various force clauses. South Carolina case law makes it clear that an assault may be committed without the application of violent physical force. The Fourth Circuit consistently holds, under Johnson 2010, that this is insufficient force to qualify as a "violent felony" or "crime of violence" under a force clause. Therefore, this court cannot say that the most innocent conduct criminalized by the statute has as an element the use, attempted use, or threatened use of physical force against the person of another.
The Government argues that the Fourth Circuit defined assault as an "attack" in United States v. Hampton, 628 F.3d 654, 660 (4th Cir.2010), and therefore that the "plain meaning of assault, beat, or wound, imputes a higher degree of violent physical contact than the minimal offensive contact standard of a simple battery." ECF No. 104 at 7. However, Hampton is simply not persuasive here, as it dealt with a guideline enhancement unrelated to the force clause analysis. Further, the Government's argument is undermined by the very dictionary definitions of "assault" described in the case it cites: "Black's Law Dictionary lists several definition of `assault:' `a threat or use of force'... `an attempt to commit battery,' `a battery,' and `any attack.' Webster's defines the term as a `violent physical or verbal attack....'" Hampton, 628 F.3d at 660 (emphasis added). Many of these options do not require the use of physical force, or include "battery" within the definition of "assault." Finally, the Fourth Circuit specifically noted in Hampton
South Carolina Code § 16-9-320(B) does not have an element of violent physical force, and as such cannot be classified as a predicate offense under the force clause of the ACCA. Accordingly, § 16-9-320(B) could only have counted as an ACCA predicate under the now-unconstitutional residual clause. As a result, it can no longer serve as a predicate offense for the ACCA.
As Defendant no longer has the requisite three predicate convictions, he is not an Armed Career Criminal and is entitled to be resentenced. The court grants Defendant's motion for relief under § 2255, denies the Government's motion to dismiss or for summary judgment, and grants Defendant's cross motion for summary judgment. The Judgment Order as to Lamont Terrell Davis in CR 3:11-834 filed March 8, 2012 is hereby vacated, and this matter is set for resentencing on October 26, 2016, at 3:00pm.
28 U.S.C. § 2255(f)(1)-(3). Due to Welch, § 2255(f)(3) is applicable to Johnson cases on collateral review, and defendants had until June 26, 2016 to file. Defendant filed his motion on June 21, 2016.