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Fourth Circuit Holds Appeal Waiver Does Not Preclude Retroactive ACCA Claim

by Anthony Accurso

The U.S. Court of Appeals for the Fourth Circuit held that retroactive ACCA claims are not barred by a defendant’s appeal waiver, and defendant’s 1976 Georgia burglary conviction is no longer a valid ACCA predicate.

Randall Cornette was convicted of being a felon in possession of a firearm, which normally carries a statutory maximum sentence of 10 years under 18 U.S.C. § 924 (a)(2). However, Cornette had four priors and was sentenced to 220 months under the Armed Career Criminal Act (“ACCA”).

After Cornette’s first § 2255 motion failed, he was granted leave by the Fourth Circuit to file a second or successive motion under Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied his motion, finding his 1976 Georgia burglary met the definition of generic burglary under the ACCA. On appeal, the Fourth Circuit disagreed.

The Government argued that review was improper because the district court at sentencing did not specify whether it was classifying any of Cornette’s priors as ACCA predicates under the elements clause, or the now void “residual clause” of 18 U.S.C. § 924(e)(2)(B). The Court held this ambiguity worked in Cornette’s favor under United States v. Winston, 850 F.3d 677 (4th Cir. 2017) by quoting “we will not penalize a movant for a court’s discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony.”

The Government’s next gambit was to argue that Cornette’s plea deal included an appeal waiver precluding challenges to his sentence. The Court found that under Welch v. United States, 136 S. Ct. 1257 (2016), “the residual clause of the ACCA can no longer mandate or authorize any sentence, and that the substantive rule announced in Johnson changed the scope of the underlying criminal proscription,” effectively removing the court’s authority to issue a sentence under the residual clause.

Further, under United States v. Marin, 961 F.2d 493 (4th Cir. 1993), “an appeal waiver does not preclude a defendant from challenging a sentence based on a constitutionally impermissible factor or a sentence imposed in excess of the maximum penalty provided by statute.”

Thus, the Court ruled Cornette’s ACCA claim under Johnson, and made retroactive under Welch, is not barred by the appeal waiver in his plea agreement. In his case, “the district court is now deemed to have had no statutory authority to impose Cornette’s sentence under the residual clause of the ACCA,” so the Court may review his “sentencing challenge notwithstanding the appeal waiver.”

Next, the Court considered whether Cornette’s 1976 Georgia burglary fit the burglary element under the ACCA. Under United States v. Hemingway, 743 F.3d 323 (4th Cir. 2013), the Court must first determine divisibility of the statute of conviction before choosing its approach as to whether the conviction qualifies as an ACCA predicate. According to Mathis v. United States, 136 S. Ct. 2243 (2016), the Court must look to “the text of the statute and controlling state law” for the divisibility analysis.

The Georgia burglary statute contains a disjunctive list of locations that may be burgled, and Georgia state court precedent and jury instructions confirm that the list of locations delineate alternative means, not elements, of the statute. Thus the statute is indivisible.

The Court then determined the statute and controlling law at the time allowed for prosecution of criminal entry into “any ... vehicle,” regardless of whether it was used as a dwelling. While the Supreme Court of Georgia modified the understanding of the statute to only include vehicles used as dwellings, this didn’t happen until a year after Cornette was convicted. Because the generic definition of burglary under the ACCA requires the location to be a dwelling, the Court ruled that the statute was overbroad at the time Cornette was convicted.

As a result, Cornette’s 1976 Georgia burglary conviction was no longer a valid ACCA predicate. However, that was only one of Cornette’s four priors, leaving him with the three required for an ACCA sentence.

Fortunately for Cornette, though, the Court applied its decision in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015) (conviction didn’t qualify as serious drug offense because defendant couldn’t have been sentenced to 10 years in prison without finding aggravating factors), and held that one of his other priors (a 1986 North Carolina charge for drug possession with intent to manufacture/sell/deliver) also was not a predicate.

Accordingly, the Court held that Cornette’s sentence under the ACCA was no longer valid because only two priors survived following the post-Johnson analysis; the Court remanded the case to the district court for resentencing. See: United States v. Cornette, 932 F.3d 204 (4th Cir. 2019). 

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