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Abney v. United States

United States District Court, W.D. New York

March 1, 2017



          MICHAEL A. TELESCA United States District Judge.


         Movant Allen Abney (“Abney”), a federal prisoner currently serving a sentence of 240 months' imprisonment for possession of a firearm as an armed career criminal in violation of 18 U.S.C. §§ 922(g)(1), 924(e), moves this Court to vacate and correct his sentence pursuant to 28 U.S.C. § 2255. Abney was convicted, by jury verdict, of that offense on May 26, 2006, and he was sentenced by United States District Judge Hon. David G. Larimer on February 7, 2007.

         Abney was adjudicated an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on more than three prior convictions in Pennsylvania, which were found by the sentencing court to qualify as either “violent felonies” or “serious drug offenses” as defined by the ACCA. The sentencing court cited the following prior felony convictions, all in Pennsylvania, when it adjudicated Abney an armed career criminal: 1985 aggravated assault conviction; 1987 delivery of a controlled substance conviction; 1987 possession with intent to deliver a controlled substance conviction; 1989 indecent assault conviction; and 1998 possession with intent to deliver a controlled substance conviction. The court appeared to rely on Abney's presentence investigation report (“PSR”), completed by the probation department, which asserted that the aggravated assault conviction and the controlled substances convictions qualified Abney as an armed career criminal under the ACCA.

         Abney filed a timely motion pursuant to 28 U.S.C. § 2255 to vacate his sentence on May 20, 2016 wherein he asserts that his prior convictions did not qualify as the predicate convictions necessary for enhancement under the ACCA. Abney specifically argues that each of his prior assault convictions constituted a violent felony only under the ACCA's residual clause, which was invalidated by the Supreme Court in United States v. Johnson, 135 S.Ct. 2551 (2015) (holding that the residual clause was unconstitutionally vague) (hereinafter, “Johnson”). The Government does not dispute the retroactive impact of the Johnson holding with respect to its invalidation of the ACCA's residual clause. The Government responds, however, that Johnson is not applicable to Abney's aggravated assault conviction, and, in any event, Abney retains his armed career criminal status because he has three prior serious drug offense convictions.

         For the reasons stated below, the Court grants Abney's motion to correct his sentence.


         The ACCA provides that an armed career criminal is a person who violates 18 U.S.C. §§ 922(g) and has three previous convictions by any court for a violent felony or a serious drug offense, or both, committed on occasions different from one another. See 18 U.S.C. § 924(e). The Supreme Court in Johnson addressed the constitutionality of the ACCA's residual clause, which provided that a prior conviction qualified as a violent felony for purposes of the sentencing enhancement if it “otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Johnson held that the imposition of an increased sentence under the residual clause violated due process, as guaranteed by the Fifth Amendment of the United States Constitution, because the residual clause was so vague that it “denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557.

         At sentencing, Judge Larimer noted that Abney's criminal history consisted of nine prior convictions, including the aggravated assault and three controlled substance convictions listed in the PSR as ACCA predicates and his prior conviction for indecent assault. Of the nine convictions listed and considered by the court on the record, none were specifically designated as ACCA predicates.

         The Government contends that even without the aggravated assault conviction, Abney has three prior drug convictions that the sentencing court apparently determined to be predicates under the “serious drug offense” prong of the ACCA, which the Government argues is unaffected by the ruling in Johnson. Abney replies that the Government is improperly attempting to apply a harmless error analysis to a Johnson violation where it is unclear whether the court relied on the ACCA's residual clause when it applied armed career criminal treatment. Abney contends that because the sentencing court referred to two prior felony assault convictions while listing his criminal history, it must be concluded that at least one of those convictions was qualified as a predicate violent felony under the residual clause of the ACCA and, therefore, resentencing is required.

         The PSR stated that Abney had been convicted of

“Aggravated Assault, Delivery of a Controlled Substance, and Possession with Intent to Deliver a Controlled Substance (on two different occasions). As these are controlled substance or violent offenses, and since the instant offense is a conviction for 18 USC § 922(g), the defendant is an Armed Career Criminal within the meaning of §4Bl .4 and 18 USC § 924(e).”

PSR, p. 7. The sentencing transcript reveals that Judge Larimer referred to the PSR and noted that “Mr. Abney's three prior convictions . . . make[] him an armed career offender.” (Docket No. 224, p. 10). The Court continued and found that:

The Government's submission . . . does set forth the records concerning Mr. Abney's prior felony convictions indicating dates and times, also with fingerprint cards, which the Court has reviewed. I believe this information has a sufficient indicia of reliability to be accepted by the Court. And although -- well, even if there were a challenge to these prior convictions, by this filing of the Government, which I accept, they do appear to be reliable and indicate Mr. Abney's several prior convictions here, which do make him an armed career offender under the statute. Therefore, I find that Probation correctly, based on the submission ...

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