Opinion
No. 7:09-CR-32-BO No. 7:16-CV-136-BO
08-30-2016
DURAN JEFFREY WARD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This cause comes before the Court on petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [DE 31]. The government has responded to the motion, conceding that the relief which petitioner seeks is warranted.
BACKGROUND
Petitioner was sentenced, with a motion by the government under United States Sentencing Guideline §5K1.1, to a term of 120 months' imprisonment after pleading guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924.
DISCUSSION
Petitioner contends that he is no longer properly classified as an armed career criminal in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), is unconstitutionally vague. Id. at 2557. In Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme Court held that Johnson applies retroactively on collateral review.
The government, having waived its procedural defenses, agrees that application of Johnson and United States v. Gardner, 823 F. 3d 793 (4th Cir. 2016) (holding that a North Carolina conviction for common law robbery is no longer a violent felony) to petitioner's criminal history results in insufficient qualifying predicate convictions necessary to be sentenced as an armed career criminal under 18 U.S.C. § 924(e). The Court agrees, and holds that resentencing of petitioner without application of the Armed Career Criminal Act is warranted.
CONCLUSION
Accordingly, for the foregoing reasons, petitioner's motion to vacate pursuant to 28 U.S.C. § 2255 [DE 31] is GRANTED, petitioner's sentence is hereby VACATED, and this matter shall be set for resentencing by separate notice. SO ORDERED, this 30 day of August, 2016.
/s/_________
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE