SHARON LOVELACE BLACKBURN, District Judge.
This case is presently pending before the court on petitioner Darrell Lynn Dancy's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [hereinafter Motion to Vacate]. (Doc. 1; crim. doc. 13.)
The law is well established that, "Confessions of error do not relieve this Court of the performance of the judicial function. Our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties." United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015),(quoting Sibron v. New York, 392 U.S. 40, 58 (1968)(quoting Young v. United States, 315 U.S. 257, 258-59 (1942)))(internal quotations and citations omitted). Based on the court independent review of Dancy's habeas claim and the sentencing record, the court finds that Dancy's habeas petition is due to be denied.
Dancy contends that he was improperly sentenced as an armed career criminal to 180 months for possession of a firearm by a convicted felon because "his prior conviction for shooting into an occupied vehicle . . . can no longer be used to enhacne his sentence under the ACCA residual clause . . . ." (Doc. 1 at 4.) The Government states that Dancy was sentenced to fifteen years based on "three prior Alabama convictions:
The PSR demonstrates that, in addition to his conviction for shooting into an occupied vehicle, Dancy had
Section 924(e)(1) states:
18 U.S.C. § 924(e)(1)(footnote added). "A serious drug offense" includes, "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." Id. § 924(e)(2)(A)(ii). Also, the requirement that the previous convictions were "committed on occasions different from one another" requires that the crimes of conviction be "temporally distinct" —
United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013)(internal citations and quotations omitted).
According to the PSR, Dancy had convictions for (1) unlawful distribution of marijuana in the first degree within three miles of a school on August 8, 2001; (2) unlawful distribution of controlled substance (marijuana), within three miles of a school on November 30, 2001, and (3) unlawful distribution of controlled substance (marijuana) within three miles of a school on March 8, 2002. (Doc. 10 at 9-10.) Dancy did not object to the fact of these convictions at sentencing. The unlawful distributions for which Dancy was convicted occurred on three different occasions.
Under Alabama law, unlawful distribution of a controlled substance is a Class B felony, Ala. Code § 13A-12-211(b), for which the possible term of imprisonment is "not more than 20 years or less than 2 years," Ala. Code § 13A-5-6. Because he was convicted of distributing a controlled substance within three miles of a school, Dancy faced an additional term of imprisonment of 5 years. Therefore, even without consideration of his conviction for shooting into an occupied vehicle, Dancy has three qualifying prior convictions for purposes of sentencing him to a term of imprisonment for 180 months.
The court finds that, even if the shooting into an occupied vehicle conviction is not considered, Dancy has three prior convictions for serious drug offenses and this court would be required sentence Dancy to 15 years as an Armed Career Criminal. Therefore, Dancy's Motion to Vacate is due to be denied and his Habeas Petition will be dismissed.
Based on the foregoing, the Motion to Vacate, filed by petitioner Darrell Lynn Dancy, (doc. 1; crim. doc. 13), is due to be denied. An Order denying the Motion to Vacate and dismissing Dancy's habeas petition will be entered contemporaneously with this Memorandum Opinion.
Rule 11 of the Rules Governing § 2255 Proceedings, provides, "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The applicant for § 2255 relief "cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1). And, the "certificate of appealability may issue . . .
Dancy is not entitled to be sentenced to less than 15 years for being a felon in possession of a firearm after being convicted of three violent felonies or serious drug offenses or both; reasonable jurists could not disagree. He has not demonstrated that the issue he raises is reasonably debatable and/or deserves encouragement to proceed further. Therefore, issuance of a certificate of appealability is not warranted in this case.
United States v. Estrada, 777 F.3d 1318, 1321-22 (11th Cir. 2015)(emphasis in original). The Eleventh Circuit has not overruled or limited Estrella, but the Fifth Circuit has noted that the Estrella "ruling has been overtaken and undermined by Mathis [v. United States, 136 S.Ct. 2243 (2016),] and Voisine [v. United States, 136 S.Ct. 2272 (2016)]." United States v. Mendez-Henriquez, 847 F.3d 214, 224 (5th Cir. 2017). The Voisine Court held that "the word `use' does not exclude from § 922(g)(9)'s compass an act of force carried out in conscious disregard of its substantial risk of causing harm," and, therefore, includes "acts undertaken with awareness of their substantial risk of causing injury." Voisine, 136 S.Ct. 2272, 2279 (2016). Under this definition of the word "use," as applied to the ACCA's definition of a violent felony, "use, attempted use, or threatened us of physcial force against the person of another" would include reckless conduct and a "violent felony conviction" under the elements clause would be any felony that has as an element volitial conduct — "a deliberate decision to endanger another." Id. at 2280. Under such definition of the phrase "use of force," the Estrella court's distinction between actions toward property or person is undermined by Voisine.
Nevertheless, the court need not decide whether Dancy's prior conviction for shooting into an occupied vehicle is a violent felony for purposes of the ACCA because Dancy has three prior convictions for serious drug offenses.
Id.