Filed: Jun. 28, 2016
Latest Update: Jun. 28, 2016
Summary: REPORT OF MAGISTRATE JUDGE GRANTING MOTION TO VACATE PATRICK A. WHITE , Magistrate Judge . I. Introduction The movant, a federal prisoner, currently confined at the Lee-United States Penitentiary, in Jonesville, Virginia, has filed this motion to vacate (DE#1), after obtaining authorization from the Eleventh Circuit to file a second or successive Section 2255 motion to vacate, pursuant to 28 U.S.C. 2255. 1 See In re Keith Devon Adams , Eleventh Circuit Court of Appeals, Case No. 16-
Summary: REPORT OF MAGISTRATE JUDGE GRANTING MOTION TO VACATE PATRICK A. WHITE , Magistrate Judge . I. Introduction The movant, a federal prisoner, currently confined at the Lee-United States Penitentiary, in Jonesville, Virginia, has filed this motion to vacate (DE#1), after obtaining authorization from the Eleventh Circuit to file a second or successive Section 2255 motion to vacate, pursuant to 28 U.S.C. 2255. 1 See In re Keith Devon Adams , Eleventh Circuit Court of Appeals, Case No. 16-1..
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REPORT OF MAGISTRATE JUDGE GRANTING MOTION TO VACATE
PATRICK A. WHITE, Magistrate Judge.
I. Introduction
The movant, a federal prisoner, currently confined at the Lee-United States Penitentiary, in Jonesville, Virginia, has filed this motion to vacate (DE#1), after obtaining authorization from the Eleventh Circuit to file a second or successive Section 2255 motion to vacate, pursuant to 28 U.S.C. §2255.1 See In re Keith Devon Adams, Eleventh Circuit Court of Appeals, Case No. 16-12519-J, Order entered June 15, 2016. Federal Public Defender Elizabeth Rainbow Willard appeared on behalf of the movant and filed an amended complaint. (DE# 4). The government has filed a response wherein it does not oppose the movant's petition seeking to correct his sentence pursuant to 28 U.S.C. §2255. (DE# 7).
This Cause has been referred to the Undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B),(C); S.D.Fla. Local Rule 1(f) governing Magistrate Judges, S.D. Fla. Admin. Order 2003-19; and, Rules 8 and 10 Governing Section 2255 Cases in the United States District Courts.
Upon review of the motion, and construing the arguments contained therein, the movant claims he no longer qualifies for an enhanced sentence under the Armed Career Criminal Act in light of the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2563 (2015)(finding that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process."). The government provides the following in its response:
In light of Johnson, the United States concedes that movant does not have three valid predicate convictions under the ACCA. One of three predicate convictions used as grounds to apply the ACCA to movant's sentence was a prior Florida conviction for burglary of an unoccupied dwelling. See CR DE 31; PreSentence Investigation Report (PSR), ¶27. The United States maintains its position that movant's other prior convictions in the state of Florida for armed robbery/carjacking and possession of cocaine with intent to distribute are qualifying predicate felonies that can support application of the ACCA, but we agree that under the circumstances of this case we are unable to make the requisite showing that movant's burglary conviction qualifies as a necessary third conviction under the ACCA. Therefore, the United States does not oppose the claim in movant's §2255 motion, which he preserved through an objection to his PSR and on direct appeal. See United States v. Frady, 456 U.S. 152, 167-68 (1982) CR DE 102; CR DE 124.
Accordingly, this Court should vacate movant's sentence, order a new Presentence Investigation Report that determines his guidelines range without the ACCA enhancement, and resentence him under 18 U.S.C. § 924(a)(2).
(DE# 7).
II. Conclusion
Based on the foregoing, it is recommended that the motion to vacate be GRANTED, that the sentence be vacated, and that the movant be resentenced, after preparation of an updated PSI. It is further recommended that no certificate of appealability issue herein, and that this case be closed.
Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report.
