213 F. Supp. 3d 784
D.S.C.2016Background
- Dinkins pleaded guilty in 2012 to being a felon in possession of a firearm; PSR treated him as an Armed Career Criminal (ACCA) based on three South Carolina prior convictions (1992 possession with intent to distribute cocaine; 1994 distribution of crack and distribution near a school; assault and battery with intent to kill (ABWIK)).
- He was sentenced to 180 months after the court varied downward from the guideline range. No PSR objections were entered as to the predicate convictions at sentencing.
- Dinkins filed an initial § 2255 in 2013 claiming ineffective assistance for not challenging ACCA predicates; the court denied relief after the Government and court found other valid predicates remained.
- After Johnson v. United States (invalidating ACCA’s residual clause) and Welch (making Johnson retroactive), Dinkins obtained permission to file a successive § 2255 and moved in June 2016, arguing ABWIK no longer qualifies as an ACCA predicate.
- The issue was whether South Carolina ABWIK necessarily includes the "use of physical force" (the ACCA force clause) or instead depended on the now-unconstitutional residual clause; the court evaluated South Carolina precedent and the categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ABWIK qualifies as an ACCA "violent felony" under the force clause | ABWIK involves intent to kill and thus qualifies as a force offense | ABWIK can be committed with minimal/nonviolent contact; it does not necessarily require violent physical force | ABWIK does not categorically require violent physical force and thus does not qualify under the force clause |
| Whether ABWIK could be counted under the ACCA after Johnson (residual clause invalidated) | N/A (argument is that ABWIK still qualifies) | ABWIK only qualified via the residual clause, now void under Johnson | ABWIK relied on the residual clause and cannot serve as an ACCA predicate post-Johnson |
| Whether Dinkins still had three ACCA predicates absent ABWIK | Dinkins argues he no longer has three predicates | Government previously relied on three predicates but conceded one 1993 possession offense did not qualify; only two drug convictions remain plus ABWIK | Without ABWIK, Dinkins lacks three qualifying predicates and thus is not an armed career criminal |
| Remedy — entitlement to resentencing under § 2255 | Dinkins seeks vacatur and resentencing | Government opposed | Court granted § 2255 relief, vacated judgment, and ordered resentencing |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (holding ACCA residual clause unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson rule is retroactive on collateral review)
- Hemingway v. United States, 734 F.3d 323 (4th Cir. 2013) (South Carolina ABHAN not a categorical crime of violence under force clause)
- Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" in ACCA as "violent force")
- Montez-Flores v. United States, 736 F.3d 357 (4th Cir. 2013) (applying categorical analysis to South Carolina assault and battery and holding it may be nonviolent)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (explaining divisibility and the limited role of the modified categorical approach)