United States District Court, S.D. West Virginia, Charleston Division
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge.
before the court is Movant, Bart Allen Miller's
(hereinafter “Defendant” Motion to Vacate, Set
Aside or Correct Sentence (ECF No. 38). This matter is
assigned to the Honorable John T. Copenhaver, Jr., and it is
referred to the undersigned United States Magistrate Judge
for submission of proposed findings and a recommendation for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B) and
the Standing Order of this Court entered on May 31, 2016. For
the reasons stated herein, it is respectfully
RECOMMENDED that the presiding District
Judge GRANT Defendant's section 2255
motion, vacate and set aside Defendant's judgment, and
resentence Defendant to time served with a corrected term of
supervised release of three years.
April 1, 2002, Defendant pled guilty in this United States
District Court, pursuant to a written plea agreement, to a
one-count indictment charging him with being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). (ECF Nos. 18-19). However, Defendant's
indictment further alleged that he had the following prior
1. Unlawful wounding, in violation of W.Va. Code §
2. Grand larceny, in violation of W.Va. Code § 61-3-13
3. Breaking and entering, in violation of W.Va. Code §
4. Breaking and entering, in violation of W.Va. Code §
61-3-12 (1991) (two counts);
5. Third degree sexual assault, in violation of W.Va. Code
§ 61-8B-5 (1991).
(ECF No. 9). Defendant's Presentence Investigation Report
(“PSR”) identified the sexual assault conviction,
the two 1991 breaking and entering convictions, and the
unlawful wounding conviction as predicate offenses that could
serve as “violent felonies” to support a finding
that Defendant was an armed career criminal, as defined by 18
U.S.C. § 924(e), the “Armed Career Criminal
Act” or “ACCA”). There does not appear to
have been any dispute that, under the law at the time of
Defendant's sentencing, Defendant qualified to be
sentenced as an armed career criminal.
sentencing, which occurred on August 19, 2002, the district
court found Defendant to be an armed career criminal and
sentenced him to serve 188 months in prison, followed by a
five-year term of supervised release. (Judgment, ECF No. 24).
Defendant did not appeal his conviction and sentence to the
United States Court of Appeals for the Fourth Circuit. Nor
did he file a prior section 2255 motion.
17, 2015, Defendant completed his term of imprisonment and
began serving his five-year term of supervised release. (ECF
No. 42 at 2).
26, 2015, the Supreme Court decided United States v.
Johnson, 135 S.Ct. 2551 (2015), holding that the
residual clause of the ACCA is unconstitutionally vague and
further finding that imposition of an increased sentence
thereunder violates due process. On April 18, 2016, the
Supreme Court decided Welch v. United States, 136
S.Ct. 1257 (2016), in which the Court determined that
Johnson changed the substantive reach of the ACCA,
and, therefore, was a substantive, rather than a procedural,
decision, because it affected the reach of the underlying
statute rather than the judicial procedures by which the
statute was applied. Therefore, the Court held that
Johnson announced a new substantive rule that
applies retroactively to cases on collateral review.
11, 2016, the Federal Public Defender for the Southern
District of West Virginia was appointed to represent
Defendant for the purpose of determining whether Defendant
qualifies for federal habeas relief in light of
Johnson. On June 24, 2016, Defendant, by counsel,
timely filed the instant Motion to Vacate, Set Aside or
Correct Sentence addressing his Johnson claim. (ECF
No. 38). Defendant's motion asserts that this Court
should vacate his sentence and re-sentence him without any
further term of supervised release.
26, 2016, the United States of America (“the
government”) filed a Response to Defendant's
section 2255 motion (ECF No. 42), in which the government,
without conceding the merits of Defendant's arguments,
acknowledges that it has no objection to re-sentencing