United States District Court, W.D. Washington, Seattle
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C.
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Petitioner's second or successive 28 U.S.C.
§ 2255 Motion to Vacate, Set Aside, or Correct Sentence.
Dkt. #1. Petitioner Terry Lamell Ezell challenges the
262-month sentence imposed on him by this Court following his
conviction for possession of cocaine base with the intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B)(iii) and felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Id. at 4. Petitioner challenges his sentence on the
basis that the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
applies retroactively to his case and requires that the Court
resentence him. This is Mr. Ezell's fourth § 2255
motion; all of his prior § 2255 motions were denied.
Id. at 5-7. After full consideration of the record,
and for the reasons set forth below, the Court DENIES Mr.
Ezell's § 2255 motion.
Ezell was charged in his underlying criminal case with
possession of crack cocaine with Intent to Distribute, in
violation of 21 U.S.C. §§841(a)(1) and
841(b)(1)(B)(iii) (Count 1); carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. §924(c) (Count 2); and being a felon in
possession of a firearm as an armed career criminal, in
violation of 18 U.S.C. §§922(g)(1) and 924(e)
(Count 3). Case No. 2:05-cr-00273-RSM, Dkt. #79. On March 10,
2008, following a bench trial, the Court acquitted Mr. Ezell
of Count 2, but convicted him of the remaining charges. Case
No. 2:05-cr-00273-RSM, Dkts. #108 and #112.
Ezell's sentencing took place on July 11, 2008. Case No.
2:05-cr-00273-RSM, Dkt. #118. Given the amount of crack
cocaine at issue in Count 1, Ezell faced a 5-year mandatory
minimum sentence, and a maximum sentence of 40 years. 21
U.S.C. §841(b)(1)(B)(iii) (2005). Mr. Ezell's
felon-in-possession charge in Count 3 normally carries a
10-year maximum sentence. 18 U.S.C. §924(a)(2). However,
if subject to sentencing under ACCA, Ezell faced a 15-year
mandatory minimum, and a maximum sentence of life. 18 U.S.C.
sentencing memoranda the government urged that Mr.
Ezell's criminal history rendered him a career offender
under the Guidelines, given his conviction of a controlled
substance offense in Count 1. Case No. 2:05-cr-00273-RSM,
Dkts. #114 and #116. The government also argued Mr. Ezell was
subject to sentencing under the ACCA for his
felon-in-possession conviction in Count 3. Id. To
qualify as a career offender, a defendant must have two prior
convictions for a “crime of violence or a controlled
substance offense, ” USSG §4B1.1(a), while a
defendant needs three prior convictions for “a violent
felony or a serious drug offense” to qualify for
sentencing under ACCA. 18 U.S.C. §922(e)(1).
government identified four prior Washington State convictions
that met these definitions:
1) 1994 conviction for Assault in the Second Degree and
Burglary in the First Degree;
2) 1991 conviction for Assault in the Second Degree;
3) 1987 conviction for Burglary in the Second Degree,
involving a personal residence;
4) 1987 conviction for Burglary in the Second Degree,
involving a church.
Case No. 2:05-cr-00273-RSM, Dkts. #114 and #116. Mr.
Ezell's 1994 second-degree assault conviction was for
assault with a deadly weapon, in violation of RCW
9A.36.021(1)(c), and his 1991 second-degree assault
conviction was for an intentional assault resulting in
substantial bodily harm, in violation of RCW 9A.36.021(1)(a).
The government argued that Mr. Ezell's assault
convictions were categorically violent felonies/crimes of
violence under the elements clause of ACCA and USSG
§4B1.2(a)(1), and also argued, in the alternative, that
these convictions were qualifying predicates under ACCA's
and Former USSG §4B1.2(a)(2)'s residual clauses.
Case No. 2:05-cr-00273-RSM, Dkt. #114 at 4-5, 8-9, 13-14.
Regarding Mr. Ezell's burglary convictions, the
government argued the Shepard documents showed these
convictions matched ACCA's generic definition of burglary
under the modified categorical approach, and also argued that
they were violent felonies under ACCA's residual clause.
Id. at 5-8, 9-12. The government further argued that
the 1994 first-degree burglary conviction and the 1987
second-degree burglary conviction involving a residence
matched Former USSG §4B1.2(a)(2)'s generic crime of
burglary of a dwelling under the modified categorical
approach, and the 1987 second-degree burglary conviction
involving a church was a crime of violence based on the
residual clause. Id. at 13-14.
sentencing, the Court determined that Ezell should be
sentenced under the ACCA and as a career offender. Case No.
2:05-cr-00273-RSM, Dkts. #130 at 33. The Court determined
Ezell's second-degree assault convictions were
categorically crimes of violence/violent felonies,
id. at 29, and, after reviewing the Shepard
documents, the Court found Ezell's second-degree burglary
convictions qualified under the modified categorical
approach, id. at 29-33. While the Court made these
rulings “for the reasons basically set out in the
probation officer's presentence report, and the
government's memorandum, ” id. at 33, the
Court did not explicitly rely on the residual clause, nor did
the Court make any findings about Ezell's first-degree
burglary conviction, see Id. at 29-33.
the Probation Office's calculation, the Court set Mr.
Ezell's total offense level at 34 and placed him in
Criminal History Category VI, resulting in an advisory
Guidelines range of 262 to 327 months. Id. at 33.
The Court imposed a 262-month prison term, followed by 5
years of supervised release. Id. at 36-38. A little
over two weeks later the Court entered an amended judgment