IN THE UN ITED STATES DISTM CT COURTFOR TH E W ESTERN DISTRICT OF W RGIN IA

ROAN OU DIVISION

u#'CLERK'S OFFICE U, ,S DIST. KAT ROANOKE, VA

FILED

BE2 2 3 2210JULIA .

BY;o

UNITED STATES OF AMERICA, ))

v. ))

DAW D W ILLIAM BROWN, ))

Petitioner. )

Case N o. 7:02-CR-024

By: M ichael F. Urbansld

United States District Judge

M EM ORAN DU M OPIN ION

Petitioner D avid W illiam Brown brings tllis habeas corpus petition ptzrsuant to 28

U.S.C. j 2255, asldng the cotu:t to vacate or correct his sentence in light of the United States

Supreme Court's recent decision in lohnson v. United States, 135 S. Ct. 2551 (2015). The

government has moved to disrniss Brown's j 2255 modon. The coutt heard oral argument

on N ovember 17, 2016 and has reviewed the memoranda subH tted by the parées. See ECF

Nos. 160, 169, 171 and 178. For the reasons that follow, the court w111 GRAN T Brown's

j 2255 moéon (ECF No. 160) and DENY the United States' motion to disnliss (ECF No.

169).1

On September 16, 2002, a criminal judgment was entered sentencing Brown to

conctzrrent terms of 262 m onths of incarceration for possession of stolen flrelrms in

violation of 18 U.S.C. j 922û*) (Count One), and being a felon in possession of a flrearm in

violaéon of 18 U.S.C. j 922(g)(1) (Count Two). Because the court deteznlined that Brown

1 This case will be set down for resentencing. At resentendng, the court also will GRANT the Urlited States' moéon tocorrect Brown's sentence as to Count One for possession of stolen ftrearms. ECF No. 170. As explained belom Brownwas sentenced to 262 months on each of Coutzts Onc and Two to rlln concurrently when, itz facq tlze stamtozymaximum fo' r the offense charged itz Cotmt One is 120 months. 18 U.S.C. jj 922$, 924(a)(2).

had three or more quahfying convictions under the Armed Career Criminal Act tthe

'TACCAD), he was subject to 18 U.S.C. j 924(e)'s mandatory minimum sentence of 180

months on Count Two, rather tharï the lzo-m onth m axim um sentence otherwise authorized

under j 924(a)(2). The colztt calculated the sentencing guideline range as being 262 to 327

months and sentenced Brown to concurrent 262-month term s of imprisonment.

The Presentence lnvestigation Report (f<PSR'') inclicated in patagtaph 26 that the

ACCA enhancement should apply to Count Two because of Brown's four prior convicéons

for Virginia stattztory burglary, in violation of Virgirlia Code j 18.2-91, in the Roanoke

County Citcuit Coutt and the Roanoke City Citclzit Court onlune 1, 1999, refetenced at

paragtaphs 37 and 38 of the PSR. Paragraphs 26 and 39 of the PSR also zeferenced Brown's

priot conviction for larceny from a person, in violadon of Virginia Code j 18.2-95(i), in the

Roanoke City Circlzit Court on June 24, 1999.2

At sentencing, Brown argued against application of the ACCA enhancement because

his four convicdons for stattztory burglary a11 occurred on one date, June 1, 1999.3 The court

noted that the offenses were çfcommitted on different dates, and they were tried on diffetent

dates, . . . gandq consolidated . . . for sentencing on the same date.'' Sentencing Transcript,

ECF No. 157, at 7-8. Thus, the court overmled Brown's objection, stating:

I have exanùned the question thoroughly as to whether or notthis defendant is an armed cazeer criminal under the stattzte andthe Court finds that he is.

The Couzt finds that he has the convictions as indicated:Statutory burglary, the conviction that is set forth in paragraph

2 The court need not address whether this convicdon qualifies as a violent felony under j 924/) for purposes of theACCA enhancement, because the issue is resolved by the court's analysis as to Brown's statm ory burglary convicéons.3 j 924(e)(1) provides for an enhanced sentence when a defendant has three prior convicdons for a violent felony orserious dnzg offense, or both, ffcommitted on occasions different from one anothen''

2

33, the convicéon that is set forth in paragraph 37, theconviction that is set forth in paragzaph 38- 33, 34, 37 and 38;those paragraphs. That they are qualifying felonies for pum oses

of 924(e).

Accordingly, the Cotut Ends that the defendant is an at-medcareer criminal within the purview of the stamte.

Id. at 19-20.

The issue now facing this court is whether, following the decisions of the United

States Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v.

United States, 136 S. Ct. 125 (2016), Brown's ACCA enhancement for l'lis prior convicdons

for Vitginia stamtory buzglary remains lawful.

II.

Under 28 U.S.C. j 2255, a federal inmate may move the sentencing cotzrt to vacate,

set aside, or correct the prisoner's sentence. Courts may affotd relief wheze fftl'le sentence

was imposed in violation of the Constitution or the laws of the Urlited States.'' 1d. j 2255(a).

lf the court determines the sentence was unlawfuEy imposed, the court Tfshall vacate and set

the judgment aside and shall discharge the prisoner or resentence him or gtant a new ttial or

correct the sentence as may appear appropriate.'' 1d. j 22554$.

A convicted felon found guilty of possessing a flrearm faces a maximum sentence of

120 months. 18 U.S.C. j 924(a)(2). However, the ACCA provides for a mandatory nlinimum

sentence of 180 months when a defendant was previously convicted of at least three prior

serious drug offenses or violent felönies. Id. j 924(e)(1). A violent felony is defined as:

Any crime punishable by imprisonment for a tetm exceedingone year . . . that -

(i) has as an element the use, attempted use, or threatened useof physical force against the person of another; or

3

$) is btzrglary, arson, or extortion, involves use of explosives, ell

ld. j 924(e)(2)(B) (sttikeout added).

In 2015, the Supreme Court invalidated the language stricken above after finding it

void for vagueness. Johnson v United States, 135 S. Ct. 2551 (2015) (fflohnson 1177).4 Though

often parsed into three clauses- the force clause, the enum erated clause, and the residual

clause- j 924(e)(2)(B) is comprised of two numbered subsections. See Be a v United

States, 553 U.S. 137, 142-44 (2008). Specifically, the flrst subsection states:

has as an element the use, attempted use, or threateneduse of physical force against the person of another; or

rfspbsection (i)'')

18 U.S.C. j 924(e)(2)@). The second subsection states:

$) is burglary, atson, or extortion, involves use oflosives ' 'eXP ,

(ffsubsection (:77)

ld. Subsecéon $) the only part of the statute at issue in Brown's clnim lists several

specific ffenumerated offense'' crimes- burglary, arson, extortion, and use of explosives-

that amount to violent felonies. Subsection @ goes on to encompass any crime that

ffotherwise involves conduct that presents a serious potential risk of injury''

The second portion of Subsecéon tiil- the part of the statute deemed

unconstimtional in lohnson Il- is often called the ffzesidual clause.'' The residual clause

refers to cêim es that are ffsim ilaz to the listed examples in some respects but diffezent in

4 The court refers to the 2015Johnson decision as fflohnson 11:' to distinguish it from the Supreme Court's earlierdecision inlohnson v. United States, 359 U.S. 133 (2010), conceming the fozce clause of j 924(e).

4

others similar, say in respect to the degree of risk it produces, but different in respect to

the Tway or m anner' in wllich it produces that risk.'' Begay, 553 U.S. at 144. Accordingly, a

crime, for ACCA purposes, cannot qualify as both an enumerated offense and as a residual

offense. J-d.a A conttazy interpretation would read the word TKotherwise'' out of Subsection

$). 1d. Rather, a predicate conviction is an enumerated offense, a residual offense similar to

an enumerated offense, or neither. This understanding of j 924/) was confamed inlames lc

United States, 550 U.S. 192 (2007), and aligns with the court's conclusion in this case.

In James, the Supreme Court deternnined that neither attempted butglary not

Florida's btzrglary stattzte was propezly considered as an enumetated offense under

Subsection $). Id. at 212-13. This is so because, as explained belom the enumerated offense

of burglary has been defined by the Supreme Cotzrt in a manner that is incongruous with the

way many states have written theit btztglary stamtes. Because Florida's version of burglary

and attem pted burglary did not fall within the definidon of generic burglary but posed a

degree of risk similar to the ACCA'S enutnezated version of btuglary, the governm ent could

rely ffon the residual provision of gsubsecéon (:1, wllich as the court has recognized---can

cover conduct that is outside the sttict definition of, but nevertheless similar to, genedc

burglary'' Id.

Thus, when the Court struck down the ACCA'S residual clause inlohnson II, the

ACCA enhancement applied inlames, based solely on the residual clause, fell as we1l.5 135 S.

Ct. at 2563 r%Ve hold that imposing an increased sentence under the zesidual clause of the

Armed Cateez Criminal Act violates the Constitution's guarantee of due process. Our

5 The fact that Iohnson 11 struck down the ACCA enhancement i!z James, fotmded as it was solely on the zesidual clause,does not affect the valiclity of the reasoning inl-ames addressed above, that the Flolida burglary and attempted burglarystamtes fell outside the enumerated clause.

contrary holdings in-lames and Ivnited States v.1 Sykes, g564 U.S. 1 (2011),1 are ovcrruled.

'l-oday's decision does not call into queséon applicadon of the Act to the four enumerated

offenses, or the temainder of the Act's definition of a violent felony.').

W hether the Virginia crime of statutory butglary falls within the enumetated clause

portion or the residual clause pordon of Subsection @ is dispositive in determining whether

Johnson 11 reaches Brown's convicéon under the ACCA. Because the cotut deterrnines that

Virginia statutory burglary- now and since Ta 1or v United States, 495 U.S. 575 (1990), was

decided- does not qualify as one of the enumerated offenses in Subsection @ of

j 924(e)(2)(B), Brown's clnim is dmely, procedutally proper, and unlawful in ight of Johnson

II.

111.

The federal habeas com us stattzte under which Brown seeks relief, 28 U.S.C.

j 2255(9, contains a one-year stamte of limitadons. The government argues that Brown's

habeas petition is untimely as it was not ftled within one year of the date his judgment

became final. 28 U.S.C. j 2255($(1). Brown contends that llis petition was dmely filed

pursuant to j 2255($(3), as he fûed it within one year of the Supreme Cotut's decision in

Johnson 1I. Under j 2255(4(3), the one-year statazte of limitadons period begins on Tfthe date

on wllich the right asserted was initially recogrzized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and m ade retroactive applicable to cases on

collateral reviem ''

The government responds thatlohnson 11 has nothing to do with Brown's case.

Brown was convicted of several Virginia burglaries, which the government contends were

6

enumerated offenses under the ACCA, andlohnson 11 expressly held that it had no effect

on the operation of the enum erated clause.

Because, as explained below, statutory burglaty in Vitginia is broader than Ta lor's

definition of generic btzrglary, Brown's convictions properly could have been deem ed ACCA

violent felonies only by way of the residual clause. Brown's residual clause enhancement was

not subject to attack untillohnson 11 was decided, after which he had one year to file llis

j 2255 cllim.

Brown previously flled a j 2255 peétion on Febrtzary 9, 2011. ECF No. 117. ln that

pelidon, Brown challenged applicadon of the ACCA enhancement to lais case under the

decision of the Supreme Court in Be a v. United States, 553 U.S. 137 (2008). On March 22,

2011, the court clismissed Brown's flrst j 2255 petiéon, finding both that it was untimely and

that > , holding that the New Mexico felony offense of dtiving under the influence of

alcohol did not qualify as a predicate offense under j 924(e), had no bearing on Brown's

Virginia statutory burglary convicéons. ECF N o. 122, at 4-5. On September 26, 2013, the

Foutth Circuit denied Brown's motion under 28 U.S.C. j 2244 to flle a second or successive

applicadon for relief under 28 U.S.C. j 2255. ECF No. 146. Brown fzed another j 2244

petition with the Flourth Circuit on March 15, 2016, ECF No. 151-1, which the Fourth

Circuit denied on April 6, 2016. ECF No. 154.

After the Supreme Court decided W elch v. United State-s, 136 S. Ct. 1257 (2016), on

April 18, 2016, holding thatlohnson 11 announced a new substandve rule that has

rettoactive effect in cases on collateral review, the Fourth Circuit granted Brown's motion to

flle a second or successive j 2255 petition and appointed the Federal Public Defender to

represent Brown. ECF No. 159. The same day, Mondayylune 27, 2016, the court docketed

Brown's new j 2255 petidon, which the Federal Public Defender had sublnitted on his

behalf on June 14, 2016. ECF No. 160. As such, Brown's peétion meets the one-year period

of limitaéon in j 2255($.

I5E.

The governm ent next argues that Bzown's clnim is proceduzaEy defaulted because he

did not previously preserve the issue. Brown argues that default does not bar considezation

of llis Johnson 11 claim because he satisfies the cause and prejudice standard under Supreme

Court precedent.

Generally spealdng, a petitioner cannot raise an argument in a post-conviction

proceeding that he did not raise eatlier on ditect appeal. See e. ., Sanchez-Llamas v. Ore on,

548 U.S. 331, 351 (2006) (citing Massaro v. United States, 538 U.S. 500, 504 (2003), and

Bousle v. United States, 523 U.S. 614, 621 (1998)). However, courts may excuse procedural

default where a defendant is able to demonstrate f'Tcause' and actazal Tprejudice.''? Bousle ,

523 U.S. at 622 (citing Mtzrra v. Carzier, 477 U.S. 478, 485 (1986), and Wainwri ht v. S kes,

433 U.S. 72, 87 (1977:.

For the sam e reason that Bzown's claim is timèly, he meets the cause requitement of

procedural default. ln short, because he could not challenge his sentence undez the ACCA

until Iohnson 11 was decided, cause exi- sts.

In M tzrray, the Supreme Couyt noted that cause, as could excuse procedutal default,

req'lites <fsome objective factor external to the defense gthatl impeded counsel's efforts to

complf' with the procedural reqllirements to raise a clnim. 477 U.S. at 488. > le Murra

8

did not provide çfan exhaustive catalog of such objecdve impedimentsy'' it noted <fthat a

showing that the facmal or legal basis for a clnim was not reasonably available to counsel'?

could constimte the required objecdve impediment. Id. (citing Reed v. Ross, 468 U.S. 1, 16

(1984)). Reed holds that cause is estabEshed ffwhere a constimtional claim is so novel that its

legal basis is not reasonably available to counsel.'' 468 U.S. at 16. In that discussion, Reed

desczibed tluee examples of such novelty:

Fitst, a decision of this Court m ay exphcitly overtule one of ourprecedents. Second, a decision may overtkzrgn) a longstandingand widespread pzactice to which tlais Court has not spoken,but which a near-unanimous body of lower coart authority hasexpzessly approved. And, finally, a decision may clisapprovgel apractice this Court arguably has sanctioned in prior cases.

1d. at 17 (intetnal quotations and citations olnitted). Reed noted that when a case falls into

one of the fust two categories and is given retroactive effect, ffthere will almost certainly

have been no teasonable basis upon wlnich an attorney previously could'' have made the

defaulted argument. Id. dfconsequently, the failure of a defendant's attorney to have pressed

such a claim before a state court is sufficiently excusable to satisfy the cause reqllirement.''

Id.

Until the Supreme Court overruled James inlohnson l1, Brown had no ability to raise

a challenge to his ACCA conviction. The James Court rejected a suggeséon raised bylustice

Scalia's dissent that the residual clause was unconstit-uéonally vague. çsW hile ACCA requires

judges to make sometimes difficult evaluaéons of the risks posed by different offenses, we

are not persuaded by Jusdce Scalia's suggestion-wllich was not pressed bylames or llis

anaici that the residual clause is unconstitutionally vague.'' Iam es, 550 U.S. at 210 n.6.

Betweenlames andlohnson II, the Coutt continued to consider the apphcadon of the

9

residual clause to a variety of state crimes, effectively precluding any constittzéonal challenge

to it. See Sykes, 564 U.S. at 12-16; Chambers v. United States, 555 U.S. 122, 127-30 (2009)9

Begay, 553 U.S. at 145-48. The 'court thus finds that the legal basis for Brown's clqim was

not reasonably available to him befozelohnson 11 was decided, establishing the cause

element excusing llis ptocedural default.

In reaching this conclusion, the court clistingkzishes the novelty of the challenge made

available only after Johnson 11 was decided Nvith the frequently litigated issue facing the

Court in Bousle , upon wlaich the government relies, as to whether mere possession of a

flzearm constituted use under 18 U.S.C. j 924(c)(1). There the Court noted that:

The argtzment that it was erzor for the District Couzt to

naisinform petitioner as to the statutoc elements of j 924(c)(1)was m ost stttely not a novel one. Indeed, at the time ofpetitioner's plea, the Fedezal Reporters were replete wit.h casesinvohring challenges to the notion that ('use'' is synonymouswith mere T< ossession.''P

Bousle , 523 U.S. at 6 22 (internal citations omitted). To suppott its holding that futility

cannot constimte cause, the Bousle r court quoted En le v. lsaac, 456 U.S. 107, 130 13.35

(1982), for the proposition that fçfutility cannot constimte cause if it means simply that a

clqim was Cunacceptable to that particular court at that patdcular t1'me.''' But this case is a far

cry from En le. There the defendants did not object to a juty insttazction that zeqllired the

defendant in an Olaio murder case to prove self-defense. The Cotut noted that its decision in

ln re Winshi , 397 U.S. 358 (1970), decided four and one-half years before the flrst of

' defendants' crinainal trials, TTlaid the basis for their constitudonal claimy'' that the prosecution

should bear the btzrden of disproving an affamaéve defense. En le, 456 U.S. at 131. ffW here

the basis of a consétaztional claim is available, and other defense counsel have perceived and

10

litigatcd that claim, the demands of conaity and finality counscl against labeling alleged

unawareness of the objection as cause for procedutal default.7' Id. at 134.6

Nor does this qase resemble the c/cumstances facing the Fourth Circtlit in United

States v. Pettiford, 612 F .3d 270 (4th Cir. 2010). There, defendant had at the time of

sentencing a basis to challenge two of lnis predicate convictions, yet chose not to do so.

Nothing about Pettiford's subsequent habeas challenge to those convictions concerned the

situation presented heze, where the clnim springs from a novel change of law m ade

retroactive by the Supteme Court on collateral teview. ln short, while the citcumstances

establislling cause in Reed were not available to Pettiford, they exist here.

The governm ent likelvise argues that the Fotzrth Circuit's opinion in United States v.

Mikala'unas, 186 F''.3d 490 (4th Cit. 1999), supports a finding of no cause hete. As Nvith

Pettiford, however, M ikala'unas did not involve a right newly recognized by the Supreme

Court and made retzoactively applicable to cases on collateral review. Rather, it concerned an

argument on an unsettled area of law which counsel either did not recognize oz chose not to

pursue at sentencing. 1d. at 493.

Unlike the circum stances in Bousle r, Englc, Pettifozd, and Atfikala'unas, the bolt of

lightning from the clear blue sky that struck down the residual clause in Johnson 11 was so

novel that it was not reasonably available to counsel. As such, it consdtutes cause to excuse

rocedtzral default.P

Brown also easily meets the ptejudice reqllirement. To show prejudice, a petitioner

need show only that without an etroz, the proceedings would have been different. Stticlder v.

6 'Fhe Court in Reed expressly clistinguished the facttzal setfing of E11g-q1 for the same reason. Reed, 468 U.S. at 19-20.

Greene, 527 U.S. 263, 289 (1999). In this case, had the sentencing colzrt not applied the

ACCA enhancement, Brown's stamtory maximum penalty on Count Two wot'tld have been

only 12O m onths, as opposed to the 262-m onth sentence he êeceived following enhancement

under the ACCA. Plainly, Brown has established that the alleged error in lzis sentence

worked to his acmal and substantial clisadvantage sufficient to establish prejudice. United

States v. Frady, 456 U.S. 152, 170 (1982).

Accordingly, the court concludes that Btown's petidon is not barred as untimely or

procedutally defaulted.

V .

Before tutrling to the crime of Virginia stattztory butglary at issue here, it is necessary

to set the analydcal stage. The categodcal and m odified categotical approaches- the only

analytical tools district cotzrts wield to determine whether prior convictions amount to

violent felonies under the AccA- were forged in Ta lor, 495 U.S. at 600-01. See M athis v.

United States, 136 S. Ct. 2243, 2251 (2016) rfTaylor set out the essendal rule governing

ACCA cases more than a quarter of centuty ago. All that counts undet the Act, we held

then, are the Telements of the statute of conviction.n). Thus, since Ta lor, cotzrts must begin

with the stam te of conviction's elem ents to deterrnine if it aligns with the genetic offense.

As to the variant of the categorical approach known as the ffmodified categorical

approach,'' the Supreme Cotzrt allows sentencing courts to consult a limited class of

documents to determine wllich of the alternative crim es within a stattzte a defendant was

convicted. See She ard v United States, 544 U.S. 13, 26 (2005) (KtWe hold that enquit'y under

the ACCA to detel-rnine whether a plea of guiltjr to burglal'y defined by a nongenezic stamte

12

necessarily adlnitted elements of the generic offense is limitcd to the term s of the charging

document, the terms of a plea agreement or transcript of colloquy between judge and

defendant in which the facttzal basis for the plea was confit-med by the defendant, ot to some

comparable judicial record of this information.').

The Suprem e Couzt has recently twice reversed courts that have nnisused this

approach and impropezly consulted She ard docppments to glean facts related to underlying

convictions. See Mathis, 136 S. Ct. 22439 Descam s v United States, 133 S. Ct. 2276 (2013).

Both M athis7 and Descam s8 make clear that they are neither changing nor supplementing

the m odified categorical approach, m erely corzecdng courts that have tnisapplied Ta lor.

7 Mathis stated:

tfrl-lhe only guse of that approach) we have evez allowedy'' we stated a few Termsago, is to determine trwhich dementp) played a part in the defendant's convicdon.''Descamps, 570 U.S., at ,133 S. Ct., at 2283, 2285 (emphasis added); seeTa lor, 495 U.S., at 602, 110 S. Ct. 2143 (nodng that the moclified approach may beemployed only to determine whether f<a jury necessarily had to fmd'' each elementof generic burglary).

136 S. Ct. at 2253.

8 Descam s stated the following:

Ouz caselaw explaining the categorical approach and its rfmodified'' counterpart allbut resolves this case. In those decisions, as shown below, the modified approachserves a limited funcdon: It helps effecmate the categozical analysis when a divisiblestatm e, listing potendal offense elements in the altemative, zenders opaque whichelement played a part in the defendant's convicûon. So undetstood, the modifiedapproach cannot convet't Descamps' convicdon tmder j 459 into an ACCAptedicate, because that state 1aw deG es burglat'y not alternatively, but only morebroaclly than the generic offense.

Taylor recognized a ffnarrow range of cases'' in wllich sentencing couus- applyingwhat we wotlld later dub the ffmoclifed categorical apptoach''- may look beyondthe statmoty elements to Tfthe charging paper and jury instnzctbns'' used in a case.Ld= a't 6O2 11O S. Ct. 2143. .;

'

>

Hence Ta 1or permitted sentencing courts, as a tool for implementing thecategotical approach, to examine a limited class of doclxments to determine which

13

In Descam s, the Supreme Court reversed the Ninth Circtzit Court of Appeals'

conclusion that district cotzrts could apply the m odified categorical apptoach to California's

burglary statute. 133 S. Ct. at 2293. The Court emphasized that $../....%1 only allowed

applicàtion of the modified categorical approach to the ffkind of statute gthatq sets out one

or more elements of the offense in the alternative.'' ld. at 2281. Where T'one alternaéve (say,

a builcling) matches an element in the generic offense, but the other (say, an automobile)

does not, the modified categorical approach perrnits sentencing courts to consult a limited

class of documents, such as indictments and jury instructions, to determine which alternative

form ed the basis of the defendant's prioz conviction.'? Id. The Supreme Court explained that

the district court and the cotlrt of appeals improperly employed the modified categorical

approach to a stamte that was sim ply broadet than generic btuglary, rather than comprised

of m uldple crimes. 1d. at 2287-91. The Court emphasized that consultaéon of She ard

documents is only appropriate to deterrnine which of the alternate crimes within a statute

the defendant was convicted, not to glean the acttzal facts giving rise to the conviction. ld. ln

Descam s, facts showing the defendant's actions were within the bounds of generic burglary

were irrelevant because California's burglary statute was overbroad, as it encompassed 130th

lawful and unlawful entry wit.h the intent to comnait a crime. Lda at 2288-89. W here

underlying ctimes categorically are not violent felonies, district courts ate precluded from

using the modified categorical apptoach to detertnine whether the undetlying convictions

happened to fall within the genezic offense. Id.

of a statm e's alteznadve elements formed the basis of the defendant's priorconvicdon.

133 S. Ct. at 2283-84.

14

Mathis, the Supreme Court's most recent opinion on the m odified categorical

approach, again reversed a decision that violated Ta loz's insttuction. 136 S. Ct. at 2257. In

d 2248-50. Divisibie stattztes areMathis, the Cotlrt addtessed the divisibility of statutes. I . at

those tha't include differing, alternaéve elements that must be proven.to sustain a convicdon.

Id. Such statutes allow use of the modifed categorical approach as they include muldple

crimes. Id. Howeveq statutes that merely contemplate alternaéve means of accomplishing a

single crim e are not divisible. Id. Rather, such stamtes remain indivisible and, under Ta lor,

are subject only to a purely categorical analysis. 1d. Mathis addressed Iowa's butglaty statute

wlnich encompassed unlawful entry of ffany building, structure, or land, water or air vehicle.''

Id. at 2250 (emphasis and brackets onlitted) (quoting Iowa Code j 702.12). After consulting

case law from Iowa's highest court, the Supreme Court concluded that the locations listed in

the stamte were alternate means of ftzlfo ng the locadonal element. Lda Such alternate means

ctid not pernait use of the modified categorical approach and rendered the stattzte overbroad

under the categorical approach. As will be explained, M athis compels the sam e result hete.

VI.

Putsuant to Ta lor, 495 U.S. at 600-01, the court fttst t-urtls to Vitginia's statutory

framework to deternnine whether Brown's offense of convicdon aligns with the generic

burglary offense enum erated in the ACCA.

Vitginia's most basic burglary stamte, essentially codifying the common law, makes it

unlawful for any person to fTbreak and enter the dwelling house of another in the rlighttime

with intent to commit a felony or any larceny thetein . . . .'' Va. Code Ann. j 18.2-89.

15

The next t'wo sections of Virginia's criminal code contain two versions of stattztory

burglary, expanding common 1aw ffblzrglary to include other structures.'' Allard v.

Commonwealth, 480 S.E.2d 57, 64 (Va. Ct. App. 1997). The fttst iteration, found in Virginia

Code j 18.2-90, has changed over the years. 't'he version of j 18.2-90 in force at the lime of

Brown's convictions on June 1, 1999, stated as follows:

j 18.2-90. Entering dwelling house, etc.y with intent tocom m it m urdery rape, robbery or arson.- lf any person inthe nighttime enters without breaking or in the daytime breaksand enters or enters and conceals himself in a dwelling house oran adjoining, occupied outhouse or in the nighttime enterswithout bêealdng or at any time breaks and enters or enteês andconceals himself in any office, shop, manufactured home,storehouse, warehouse, banldng house, church as dehned in j18.2-127, or other house, or any ship, vessel or river craft or anyrailroad car, or any autom obile, trtzck or trailez, if suchautom obile, truck or trailer is used as a dwelling or place ofhuman habitation, with intent to commit murder, rape, robberyor arson in violadon of jj 18.2-77, 18.2-79 or j 18.2-80, h.e shallbe deemed guilty of stamtory burglary, which offense shatl be aClass 3 felony. However, if such person was arm ed with adeadly weapon at the time of such entry, he shall be guilty of aClass 2 felony.

Brown was not convicted of either Virgitlia Code jj 18.2-89 or 18.2-90, but rather of

a third Virginia burglary stamte, Vitgirlia Code j 18.2-91. At the time of lais convicdon on

June 1, 1999, that qtatute read:

j 18.2-91. Entering dwelling housey etc., with intent tocom m it larcenyy assault and battery or other felony. - lf

any person comtnits any of the acts mentioned in j 18.2-90 withintent to com nait larceny, or any felony other than mutdet, rape,robbery or arson in violaéon of jj 18.2-77, 18.2-79 or j 18.2-80,or if any person comrnits any of the acts menéoned in j 18.2-89or j 18.2-90 with intent to commit assault and battery, he shallbe g1.1111 of stataztory bulglary, punishable by confinement in astate correcdonal facility for not less than one or more than

twenty years or, in the cliscretion of the jury or the cotut trying

16

the case without a jury, be confined in jail for a period notexceeding twelve months or fmed not more than $2,500, eitheroz b0th. However, if the person was arm ed with a deadlyweapon at the time of such entry, he shall be guilty of a Class 2felony.

As evident from the statutory language, all of these Virgirzia burglazy statutes share

three common elements: (1) an unlawful or unprivileged entry; (2) into a covered locadon;

and (3) wit.h the intent to commit a crime. 9

A.

In T-qytoz, 495 U.S. at 598, the Supreme Court defined generic burglary- burglary

that qualifies as a violent felony undet the enumerated clause of the ACCA- aS ffan unlawful

or unprivileged entry into, or remaining in, a building or other stnzcture, with intent to

conunit a crim e.'' In so holcling, the Cotzrt noted that state crimes that allowed for burglary

of places other than buildings, such as automobiles, swept more broadly than generic

blzrglary, and were thus excluded from the definition of generic burglary. J.dz. at 591. As the

Fouzth Circtzit recently explained in Urlited States v. Wlnite, 836 F.3d 437, 445 (4th Cir.

2016):

Generic burglarfs ffbuilding or other structtzre'' element doesnot encompass every enclosure. For example, in She ard v.

United States, 544 U.S. 13, 15-16 (2005), the Supreme Courtstated that the generic offense refers to burglary ffcommitted ina building or enclosed space . . . not in boat or m otor vehicle.';Sim ilarly, the Supreme Court recently found an Iowa burglarystatute to encompass conduct outside the bounds of genericbtzrglary because the statute specified that the crime could occurin a Jfland, water, or air vellicle.'? M athis, 136 S. Ct. at 2250

(quoting Iowa Code j 702.12 (2013)); see also T.gy....11 r, 495 U.S.at 599 (describing a state burglary offe' nse that prohibited

9 A fourth Virginia burglazy statute, j 18.2-92, not applicable here, also shares these elements and makes it tmlawful tobreak and enter into an occupied dwelling with the intent to commit other misdemeanors. Seelohnson v.Commonwealth, 444 S.E.2d 559, 561-62 (Va. Ct. App. 1994).

17

brealdng and entering ç'any booth or tent, or any boat oz vessel,

or railroad car': as nongeneric burglary (quoting Mo. Rev. Stat. j560.070 (1969) (repealedll).

Common law burglary, as codified in Vitginia Code j 18.2-89, limits the locational

element of j 18.2-89 to dwelling houses. As such, it squarely falls witlain Ta lor's definition

of generic bkuglary and qualifies as a violent felony under j 924(e).

The next two versions of stattztory butglary, Virginia Code jj 18.2-90 and 18.2-91,

share t'wo elements- unlawful or unauthorized entry and. location- and differ only as to the

intent necessary to violate the stattzte. As in M athis, the issue here is whether the locaéonal

element of Vitginia statutory burglary as set forth in Virgirsia Code j 18.2-90 is broader than

eneric burglary.lo

W hen viewed through the lens of the categozical approach, there is no doubt that

Virginia Code j 18.2-90 sweeps moze broadly than Ta lor's definiéon of generic blzrglary.

For example, the version of j 18.2-90 violated by Brown encompasses criminal activity that

occurs in ffany slzip, vessel or river craft or any zniltoad car, or any automobile, trtzck or

trailer, if such autom obile, truck or trall' er is used a dwelling or place of human habitadon.''

Such language categorically takes j 18.2-90 beyond generic burglary.

B.

Howevez, as noted above, where a statazte consists of multiple crim es, some of which

rise to the level of an ACCA violent felony and some of which do not, the court is pe= itted

to apply the modified categorical approach. Before involdng the modified categozical

approach, the court must decide the threshold queséon of whether j 18.2-90 is divisible in a

10 While Brown was convicted of a violadon of Virginia Code j 18.2-91, that stamte makes it unlawful to commit any ofthe acts mentioned in j 18.2-90, albeit with different intent. As such, the court's analysis must focus on j 18.2-90.

18

legally significant way. In this case, the principal question raised by the parties is whether the

disjuncéve list of locations contained in j 18.2-90 amounts to alternative elements

constimting different crimes or merely multiple means of committing a single crime. If the

statute describes multiple crim es, the cout't must then dete= ine if any of the crimes amount

to generic burglary and thus qualify as ACCA predicates. As the Fourth Circuit noted in

United States v. Cabrera-umanzoz, 728 F.3d 347, 352 (4th Cit. 2013) (emphasis onnitted):

' General divisibility, howevez, is not enough; a stamte is divisiblefor ptzrposes of applying the moclified categodcal approach onlyif at least one of the categories into which the stattzte m ay bedivided constim tes, by its elements, a violent felony. See

Descam s, 133 S. Ct. at 2285 (explaining that the modihedcategorical approach provides a ffmechanism'' foz comparingthe prior conviction to the generic offense ffwhen a statute listsmuldple, alternaéve elements, and so effecévely creates several

diffezent crimes.... gandj at least one, but not all of thqse crimestches the generic version'' g j); gunited States v.1 Gomez, 690ma

F.3d (194,) 199 g(4t.h Cir. 2012)1 (ffgqourts may apply themodified categorical approach to a stamte only if it containsdivisible categories of proscribed conduct, at least one of wllichconstitutes by its elements a gqualifying convictionl.7).

The court concludes that Virginia Code j 18.2-90 does not create several different

crim es. Rather, its locational element sets forth alternadve places where the single crime of

statutory burglary may be committed. There is no diffetence in statutory penalties for

unlawful entry into the alternative locations listed in the statazte. As such, M athis requites

that the court consider these alternaéve locations as means by which the singular crime of

stataztory burglary may be com mitted, rather than elements of separate crimes. Accordingly,

the court is not permitted to use the modified categorical approach.

19

1.

Distdct courts must consult state law to determine whether a disjunctive list in a state

statute am ounts to m eans oz elements. M atlnis, 136 S. Ct. at 2256. A number of Virginia

appellate decisions address whether certain places fall within the locaéons set forth in j 18.2-

90, but none squarely answer the means/element inqtury' posed in Mathis. For example, in

Dalton v. Cornmonwealth, 418 S.E.2d 563 (Va. Ct. App. 1992), the court addressed the

question whether a fenced area that was used to stoze repaired lawn m owers was a

storehouse as that term is used in the stattzte. Citing Com ton v. Comm onwealth, 55 S.E.2d

446 (Vk. Ct. App. 1949), concerning a chicken house, Gra beal v. Commonwealth, 228 Va.

736, 324 S.E.2d 698 (1985), concertning mobile homes or tzailers used for resale or display,

and Crews v. Commonwealth, 352 S.E.2d 1 (Va. Ct. App. 1987), concerning a school bus

converted for storage, the Dalton court held that in order for a strtzcttzre to be the subject of

burglary, it must be affixed to the ground and have walls and a roof. The court has

considered whether the requitem ent that a stzucture be affixed to the gzound consétutes an

element. But based on M athis, the coutt does not read these cases to create separate crim es

with separate elem ents. One does not comm it a different crime under this statute by

. '

lk d to an office or a ship.ll Rather, these are alternaévebreaking into a storè ouse as oppose

places- or ffmeans'' in M athis' parlance- to comm it the sam e crime. In other words, there

11 Many years ago, the Supreme Cottrt of Virgirlia stated just that.

Under Code, jj 18-160 and 18-161 gpredecessor burglary statmes), housebrelkingoz storebzealring, as a conslxmmated crime, includes 170th a nighttime entry withoutbreaking and a brealdng and ent.ry in the daytime or nkhtfime, tmder statedcondidons, as precisely the same felony. There is no distincdon in the degree orclass of crime or in the measure of its punishment.

Willoughby v. Smyth, 194 Va.. 267, 271, 72 S.E.2d 636, 638 (1952).

20

is no elemental difference between burglary of a stozehouse versus burglary of an office or

sllip. That is the teaching of M athis.

2.

M athis, of course, dealt with the Iowa burglary stattzte and dete= ined that the places

listed in the statute where burglary may occur am ount to f'brute facts'' or ffmeansJ' of

committing a singular crime, rather than elements creating separate crimes. The Cotzrt gave

weight to how Iowa courts viewed the various places listed in the stattzte, citing two cases,

State v. Duncan, 312 N.W.2d 519, 523 (lowa 1981), and State v. Roone , 862 N.W .2d 367,

376 gowa 2015).

Vincent Duncan was charged with committing one count of lowa second degree

burglary. The fsrst question considered by the Iowa Supreme Court was whether Duncan

could be charged with burglary as to a marina and a boat located therein in a single count.

The court held ffthat the occasion involving burglary of the mazina and the boat cotzld be

charged as one burglary consisting of the marina and boat conjunctively or alternatively and

could be correspondingly subrnitted to the jury.'' Duncan, 312 N.W .2d at 523. As to whether

the jury must agree on whether the marina was buzgled as opposed to the boat, the Iowa

court stated'.

At this point another principle intervenes. fflt is not necessarythat a jury, in order to fmd a verdict, should concur in a singleview of the transacéon disclosed by the evidence. If theconclusion may be juséfied upon either of two intemretadonsof the evidence, the verdict cannot be impeached by showingthat a part of the jury proceeded upon one intemretaéon andpart upon another.'' Peo le v. Sullivan, 173 N .Y. 122, 127, 65N.E. 989, 989 (1903). Stated cliffezently, fftllf substandalevidence is presented to support each alternative method ofcommitting a single crime, and the alternatives are not

21

repugnant to each other, then unanimity of the jury as to themode of commission of the crime is not reqllited.'' State v.

Atndt, 12 Wash. App. 248, 252, 529 P.2d 887, 889 (1974). Seealso 75 Am. Jur. 2d Trial j 884, at 760 (1974) rfA convictionwill not be set aside because of an instruction which perlnits aconviction notwithstanding a difference between jurors as towhich of two contradictory facts, each consistent wit.h guilt, is

established by the evidence.'); Annot., 72 A.L.R. 154 (1931). . . .

Id. at 523-24.

Roone involved burglary of a condemned house scheduled for demolition. The

Supreme Court of Iowa, addressing the locational aspect of the Iowa burglary stam te, stated

'fgilt is true that the legislature has broadly phrased the element of place and we, as a result,

have found the element sadshed in a wide variety of contexts.'' 862 N .W .2d at 376. The

same is tlaze in Vitginia.

Indeed, an exanninaéon of the Iowa and Virginia decisions concerning the place or

locational element of each state's statazte yields no material difference, suggesting that the

M athis Court's conclusion as to Iowa applies to Virginia as well. Foz exnmple, compare the

lowa decision in State v. Hill, 449 N.W.2d 626, 628 gowa 1989), wit.h the Virginia decision

in Dalton, 418 S.E.2d at 563. Hill was convicted of steaing pistons from a fenced enclostzre

behind an auto parts store! The Iowa court considered whether the fenced encloskzre fell

within the definidon of an appurtenance under the Iowa statute. Just as the Vitginia cotzrt in

Dalton decided that the fenced area containing lawn mowers fell within the defmition of a

storehouse under the Virginia statute, the Iowa court in I-IiII detet-mined that the fenced area

containing pistons fell within the defirlition of an appurtenance under the Iowa statute.

Because these Vitgirtia and Iowa decisions so closely track each other as to the proof

requited to saésfy the locational elem ent, it stands to reason that the conclusion of the

22

M athis Court that the list of locations contained in the Iowa butglary statute are best

considered as fTbrute facts'' ot ffm eansy'' rather than elem ents, applies as well in Vilginia.

3.

The Supreme Court of Virgirlia's decision in Gta beal v. Comm onwealth, 228 Va.

736, 324 S.E.2d 698 (1985), provides an instructive contzast. Gra beal concerned whether

the final portion of the list of locations in Virginia Code j 18.2-90- ffany automobile, truck

or ttailer'7- contains an added proof requitement. Specifcally, Gra beal makes it clear that

to sustain a conviction for breaking and entering into an automobile, truck or trailez under

j 18.2-90, the statute provides that the prosecution had to meet the reqe ements of the

stamte and prove that the trailer was used as a dwelling ot place of human habitation. J-d.a at

739, 324 S.E.2d at 6999 see Allard, 480 S.E.2d at 64 rv it.h respect to structures other than a

dwelling house of another, the legislattzre specifically chose to impose the habitability

element only for automobiles, ttucks or trailers.'). Thus Gra beal commands the conclusion

that bzeaking and entering an autom obile, truck or ttailer is not merely an alteznative means

of violating j 18.2-90. Rather, a burglary conviction under j 18.2-90 for breaking and

entering an autom obile, ttazck or trailer requires addiéonal proof- use as a dwelling or place

of human habitaéon- not applicable to other locations listed in the statute. But that

difference is of no consequence to the court's conclusion that the ACCA enhancement does

not apply. Buzglaries of automobiles, trucks, or trailers, clearly do not align with generic

burglary. The remainder of j 18.2-90 encompasses burglaries of sllips, vessels, and zailroad

cars, among other stzuctures. Thus the locales subject to burglary in j 18.2-90 and described

in Gra beal- those that requite proof of use as a dwelling oz for hum an habitation and

23

thoie that do not- both are categorically broader than generic burglary. As such, the coul't

cannot employ the modified categorical approach. Cabreza-umanzoz, 728 F. 3c1 at 352.

The cokut is tnindful of the Folzrt.h Circuit's holding in United States v. Foster, 662

F.3d 291 (4th Cir. 2011). In Foster, the Fotzrth Circuit detetmined that j 18.2-90 was

divisible into three clauses:

The relevant Vitginia statute defined breaking and entering as acrime under three separate clauses: (1) an froffice, shop ...storehouse, warehouse, banking house, or other house''; (2) atfsllip, vessel, or river craft or any railroad car''; or (3) Ttanyautomobile, truck or trailer ... gbeingq used as a dwelling orplace of human habitaéon.': Va. Code j 18.2-90 (1992)(amended 2004).

J-ds at 293-94. After considedng Gra beal's holding that convicéons under the third clause

required an added proof requitem ent, the Fourth Cizcuit concluded that it could employ the

modiiied categorical approach to deterrnine which of the three clauses was invoked in the

underlying conviction. 1d. at 294-95. But Foster was decided before Descam s and M athis

were decided, and the Court's subsequent decisions in Descam s and M athis strongly

counsel against use of the m oclitied categorical approach here.

This conclusion is bolstered by the Fourt.h Circtzit's m ore recent decision in Utzited

States v. Henzi uez, 757 F.3d 144 (4th Cir. 2014). In Henri uez, the Fourth Citcttit held that

flrst degree M aryland burglary was broader than generic buzglary and thus was not a proper

predicate to support a sentencing enhancement under United States Sentencing Glaidelines j

2L1.2$)(1)(A)@ . Although the Maryland statute in question limited burglary to brealdng

and entering Tftlle dwelling of another with the intent to commit theft or a crim e of

violencey'' Md. Code Ann. Crim. Law j 6-202(a), the Fotzrth Circuit found there to be (fa

24

realistic pzobability that M aryland's stamte covezs buzglaries of motor vellicles or boats-

places that the United States Supreme Court has expressly excluded from generic buzglary.'?

Henri uez, 757 F.3d at 146. The Foutth Citcuit in Henri uez Kfemploygedq the categorical

approach here because the crime of wlnich the defendant was convicted has a single,

indivisible set of elements.'' ld. at 147 (internal quotation marks ornitted) (quoting

Descam s, 133 S. Ct. at 2282).12 The court's decision also hnds support in the Seventh

Circuit's post-Mathis decision in United States v. Edwards, 836 F.3d 831, 838 Cth Cir.

2016), where the Seventh Citcuit found the list of locations in the Wisconsin burglary statme

to be ffalternative means rather than elements and g j therefote indivisible.'' But see United

States v. Gund , No. 14-12113 (11+ Cir. Nov. 23, 2016) (finding, by a divided panel of the

Eleventh Circtzit, that the Georgia burglary stam te is divisible and applying the m odified

categorical approach.)

Virginia Code j 18.2-90 is far broader than generic burglary. The most obvious

examples of tlais overbzeadth fall at the end of the list. Plainly, unlawful etatry of

autom obiles, trucks and trailers is broader than generic burglary. So too wit.h unauthorized

entry into slùps, vessels, river craft or any rnilroad car. W hile the part of the list that covers

various types of buildings falls within the bounds of generic burglary, M athis does not

permit the court to divide the stam te into separate crim es based on those locales.

12 'Fhe Fourth Circuit in United States v. W hite, 836 F.3d at 444, also recently used the categorical appzoach to analyzethe application of j 924/) to the West Virginia burglazy statute. However, it declined to express an opinion whetlzer thealternadve locaéons specified in the W est Virgirlia stattzte rendered it divisible for the pumoses of applying the modifiedcategorical approach as that issue was neither argued nor addressed by the pardes in their briefs. Id. at 446 n.3.

25

Accordingly, the couzt cannot employ the modified categozical appêoach to determine the

specific facts surrounding Brown's convictions.l3

4.

Although neither pazty raised the issue, the court has considered whether j 18.2-90 is

divisible based on the time of day of the offense. That is because j 18.2-90 only

encompasses bzeaking and entering or entering and concealing a dwelling house or adjoining

outhouse in the JtIJJJ//Z: as opposed to breaking and entering or entering and concealing the

other locations listed in the stamte at tz/!;p ttàe. In Griffin v. Commonwea1th, 412 S.E.2d 709,

711 (Va. Ct. App. 1991), the court stated:

Thus, whenever theze is . . . intent, the timing of the offense isnot an essential element of the offense. Since brealdng andentering of a dwelling, at any time, is the essential element of

,

the offense, the indictment's allegaéon that the offenseoccurred in the daytime is nothing m ore than surplusage.

Likewise, there is no m ezit to the argum ent, albeit unstated, that the term Ktdwelling

house'' used in tlae fast part of the stattzte adds an elem ent. Although the term rfdwelling

house': has been defined to mean a place human beings regularly use for sleeping, Turner v.

Co1nmonwea1th, 531 S.E.2d 619 (Va. Ct. App. 2000), Griffin holds that it is subsumed

within the term ffother house,'' as it ffnecessarily includes any such structure used as a

dwellinp'' 1d.

13 Near the end of the majority opinion, tlze Matllis Court suggests that ffif state 1aw fails to provide clear answersy''federal judges may f<peek at the record docllments . . . for the sole and limited pumose of dete- ining whether the listeditems are elements of the offense.'' Matllis, 136 S. Ct. at 2256-57 (intemal brackets and quotation marks omitted)

. (quoting Rendor v. Holder, 782 F. 3d 466, 473-74 (9th Cir. 2015) (opinion dissenting from denial of reh'g en banc). 'I'heonly record docllments aviilable to the c8urt in thii case concem the statutory btuglary convicdons referenced inparagzaph 38 of the PSR. The indictments referenced in that paragraph charge that TO AVID W H-T,IAM BROW N didkmlawfully and felorliously enter in the nighttime or break and enter in the daytime or conceal his person in 939Hedgewood Dr., N.W. rand 821 Molmtain Rd., N.W.) the residence of (victim), w1t11 the intent to commit larcenp''W hile the indictments' refezence to an addzess as a residence suggests that the locaéon itwolved was a dwelling house, itprovides no clue helpful to deciphee g whether the listed location is a means or an element.

26

Accordingly, Virgirzia Code j 18.2-90, taken as a whole, has never qualifed as a

violent felony under the enumerated clause as it does not square wit.h generic burglary.

Rather, Virginia Code j 18.2-90 has only qualified as an ACCA predicate by way of the now-

defunct residual clause. As Johnson 11 and Welch make clear, federal inmates whose

sentences were enhanced as a result of the residual clause are entitled to relief under j 2255.

W I.

Because Brown's Vitginia buzglary convicéons- now and since Ta lor- only qualify

as predicate felonies by way of the residual clause, Brown's clnim is cognizable under

Iohnson 11 and llis ACCA sentence on Count Two must be vacated. ln short, given the

constraints of the categorical approach imposed by M athis, the court cannot conclude that

Brown's prioz statutory burglary convicéons meet Ta lor's deûnition of genedc burglary.l4

Ptzrsuant to Johnson 11, the court finds that the 180-month sentence Brown received on

Count Two is unconstitutional, as it is greater than the 120-m onth m aximum penalty set

forth in j 924(a)(2).15 As such, Brown's j 2255 motion is GRANTED, and the

government's m otion to disrniss DEN IED.

14 Given the difficuldes inherent in deciphering the distincdon behveen elements and means, the coul't views the analysisitz this case to be anytlaing but, irl Mathis' tenns, ffeasy.'' 136 S. Ct. at 2256. Compare, for example, the Descamps Couzt'sdesczipdon of a divisible statm e as being the lrind of statute that Nets out one or more elements of the offense in thealternadve-for example, stadng that burglary itwolves entc into a builchn' g or an automobile,'' 133 S. Ct. at 2281, withthe conclusion in Mathis that a similar list of places in the Iowa statute, (Cany building, strtzcttue, Lor) zzfzt water or air?7,âï1./,'7 Tfare not altemadve elements, going toward the creaéon of separate czimes.'' 136 U.S. at 2250. At the end of theday, the courq bound by Matllis, is constrained to grant Brown's peddon. At the same time, the court shares the ffgeneralconcem'' explained byludge Willrinson in his concurring opinion in United States v. Doctor, No. 15-4764, at 15 (4thCir. November 21, 2O16)(slip op) ''that the categorical approach to predicate crimes of violence is moving beyond whatthe Supreme Court origm' ally anticipated.''15 As noted previously, the pardes agree that Brown's concurrent 262-month sentence as to Count One, which was notsubject to enhancement under the ACCA, exceeds the statmory mavimum of 120 months. The Order entered in thiscase wlll* reflect that the matter is set down for resentencing on 170th counts of convicdon.

27

An appropriate Order w111 be entered.

Entered: / m/A;/ u#/ L

/#, -'r2.c-W f W V-:Z-/w:r''t;.. )?) t '.

M ichael F. UrbanskiUnited States Disttictludge

28