Order on Motion to Correct Sentence Under 28 U.S.C. § 2255 — U.S. v. Donald Lamar Wade (N.D. Fla.)

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An Order filed August 24, 2016 as Document 40 in United States of America v. Donald Lamar Wade, Case 3:10-cr-00062, in the U.S. District Court for the Northern District of Florida. It addresses Wade's Motion to Correct Sentence under 28 U.S.C. § 2255, based on Johnson v. United States; the Government concedes Wade is entitled to relief. The Court states that Wade pleaded guilty under 18 U.S.C. § 922(g)(1), was sentenced to 180 months, and no longer has the predicate convictions for the Armed Career Criminal Act enhancement. It GRANTS the motion and directs the U.S. Probation Office to prepare a supplemental addendum within fourteen (14) days. The Court will modify the sentence without a resentencing hearing unless there are objections. It is signed s/ M. Casey Rodgers, Chief United States District Judge.

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“Order on Motion to Correct Sentence Under 28 U.S.C. § 2255 — U.S. v. Donald Lamar Wade (N.D. Fla.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-3-10-cr-00062-dkt-40-n-d-fla-f9124dd85e/, SHA-256 c6f1dadb3699cd49a0d50f84e0d2c1ad7962eb5db4a5b4d451b3d03e4750357a.

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     Case 3:10-cr-00062-MCR-CJK Document 40 Filed 08/24/16 Page 1 of 4



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                    UNITED STATES DISTRICT COURT
                    NORTHERN DISTRICT OF FLORIDA
                         PENSACOLA DIVISION


UNITED STATES OF AMERICA

v.                                          CASE NOS.: 3:10cr62/MCR/CJK
                                                       3:16cv280/MCR/CJK
DONALD LAMAR WADE

                                        /

                                   ORDER

      Defendant Donald Lamar Wade has filed a Motion to Correct Sentence

Under 28 U.S.C. § 2255 contending that he is entitled to sentencing relief based on

Johnson v. United States, 135 S.Ct. 2551 (2015).       (ECF Nos. 33, 35).      The

Government concedes that Mr. Wade is entitled to relief. (ECF No. 39).

      Mr. Wade pleaded guilty to the offense of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). (ECF No. 20). The court

found Mr. Wade to be an armed career criminal after adopting the findings of the

Presentence Investigation Report that he had prior Florida convictions for offenses

including Burglary of a Dwelling while Armed, Kidnapping, Robbery, and Escape.

(ECF No. 26). Pursuant to the Armed Career Criminal Act, (“ACCA”), a person

who has three previous convictions for a violent felony, a serious drug offense, or
     Case 3:10-cr-00062-MCR-CJK Document 40 Filed 08/24/16 Page 2 of 4



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both is subject to a mandatory minimum fifteen-year sentence.          18 U.S.C. §

924(e)(1). The statutory definition of a violent felony under the ACCA is an

offense that either “(i) has as an element the use, attempted use, or threatened use

of physical force against the person of another [known as the elements clause] or

(ii) is burglary, arson, or extortion, involves the use of explosives [known as the

enumerated offenses clause] or otherwise involves conduct that presents a serious

potential risk of physical injury to another [known as the residual clause].” 18

U.S.C. § 924(e)(2)(B)(i) and (ii). An individual subject to ACCA’s enhanced

penalties also is subject to a greater Guidelines range pursuant to U.S.S.G. § 4B1.4.

Mr. Wade was sentenced to a term of 180 months imprisonment. Absent the

application of the ACCA enhancement, Mr. Wade would have faced a maximum

sentence of ten years imprisonment, see 18 U.S.C. § 924(a)(2), and the court

indicated at sentencing that absent the ACCA enhancement, it would have imposed

the statutory maximum sentence to run consecutive to the state sentence. (ECF

No. 37 at11).

      In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court ruled

that the ACCA’s “residual clause” was unconstitutionally vague. Johnson, 135

S.Ct. at 2563. Thus, a prior conviction can only qualify as a “violent felony” if it



Case Nos.: 3:10cr62/MCR/EMT; 3:16cv280/MCR/EMT
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falls within the elements clause or is one of the enumerated offenses. Escape is no

longer a violent felony under the ACCA after Johnson. See United States v.

Cummings, 628 F. App’x. 719 (11th Cir. 2016). Mr. Wade’s burglary, robbery, and

kidnapping offenses occurred during a single criminal episode and as such count as

a single predicate offense for purposes of § 924(e)(1).      See United States v.

McCloud, 818 F.3d 591, 595 (11th Cir. 2016); United States v. Sweeting, 933 F.2d

962, 967 (11th Cir. 1991). Therefore, Mr. Wade no longer has the three requisite

predicate convictions to support the application of the ACCA enhancement, and he

is entitled to be resentenced.

      Accordingly it is ORDERED:

   1. Defendant Wade’s Motion to Correct Sentence under 28 U.S.C. § 2255

      (ECF No. 33) is GRANTED.

   2. Within fourteen (14) days from the date of this order, the U.S. Probation

      Office shall prepare a supplemental addendum to the Presentence

      Investigation Report including amended Guidelines calculations, and

      provide same to the parties and the court. The parties shall have fourteen

      (14) days to notify the court and the Probation Office of any objections to

      the revised calculations. Depending on the parties’ responses, the Court will



Case Nos.: 3:10cr62/MCR/EMT; 3:16cv280/MCR/EMT
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      modify Mr. Wade’s sentence without a resentencing hearing. If there are

      objections, the court will schedule a resentencing.

      DONE AND ORDERED this 24th day of August 2016.



                                 s/   M. Casey Rodgers
                                M. CASEY RODGERS
                                CHIEF UNITED STATES DISTRICT JUDGE




Case Nos.: 3:10cr62/MCR/EMT; 3:16cv280/MCR/EMT

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