United States v. Willie Allen , 667 F. App'x 798 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6388
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIE ALLEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:03-cr-00067-F-1; 7:15-cv-00167-F)
Submitted: July 15, 2016 Decided: August 2, 2016
Before MOTZ, KING, and FLOYD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Willie Allen, Appellant Pro Se. Richard Ernest Myers, II, Seth
Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Allen appeals the district court’s order denying his
28 U.S.C. § 2255 (2012) motion. We vacate the district court’s
order and remand for further proceedings.
Allen pled guilty to possession of a firearm by a convicted
felon, 18 U.S.C. § 922(g)(1) (2012). The district court
determined that Allen, who had three prior convictions of
violent felonies, qualified as an armed career criminal. See 18
U.S.C. § 924(e)(1) (2012). Allen was sentenced to 180 months in
prison.
Two of the three prior convictions were for North Carolina
common law robbery. Allen contended in his § 2255 motion that,
under Johnson v. United States, 135 S. Ct. 2551 (2015), these
convictions were no longer valid predicates for armed career
criminal status. We recently held that a conviction of North
Carolina common law robbery does not categorically qualify as a
violent felony under the Armed Career Criminal Act (ACCA).
United States v. Gardner, __ F.3d __, 2016 WL 2893881, at *7
(4th Cir. May 18, 2016) (No. 14-4533). In Gardner, we
determined that such a conviction falls not under the “force”
clause of ACCA, 18 U.S.C. § 924(e)(2)(B)(i), but instead under
ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). In light
of Johnson, which invalidated the residual clause and applies
retroactively to cases on collateral review, Welch v. United
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States, 136 S. Ct. 1257 (2016), we conclude that Allen’s common
law robbery convictions cannot serve as predicate violent
felonies for armed career criminal status.
We accordingly grant a certificate of appealability, vacate
the district court’s order, and remand for further proceedings
consistent with this opinion. The motion for appointment of
counsel is denied. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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