Antrone Davis: Concurrent sentence does not foreclose granting SOS application

In In Re: Antrone Davis, No. 16-13779-J (July 21, 2016), the Court (2-1) granted an application for leave to file a second or successive § 2255 motion. One of Davis’ prior convictions was for burglary of a car, an offense which did not meet the definition of burglary of a building or structure required to qualify under ACCA. The majority recognized that Davis was serving a 327-month ACCA sentence and a concurrent 327-month sentence for drug trafficking. The majority further recognized that in In Re Williams, it had recently denied an SOS application because the defendant was serving a concurrent sentence. The majority distinguished In Re Williams because the concurrent sentence in that case was “unrelated” to the ACCA sentence, and it was a mandatory [statutory] life sentence [pursuant to 21 U.S.C. § 841(b)(1)(A), for drug traffickers with two or more prior felony drug offenses]. Here, by contrast, the sentence on the drug trafficking count was not “unrelated” to the ACCA count, because the sentencing judge sentenced Davis “based on a single Sentencing Guidelines range.” “The judge’s sentencing decision was therefore no doubt informed by Davis’s ACCA designation, which means Davis may have suffered ‘adverse collateral consequences’ if his ACCA sentence turns out to be unlawful.” [Dissenting, Jill Pryor, J., pointed out that Davis’ concurrent 327-month sentence was based on the career offender Guideline, which requires only two prior qualifying felonies. Davis had two prior qualifying felonies (it was his third felony, for burglary, that was not valid ACCA predicate). Both of these prior felonies qualified under ACCA (and the career offender Guideline). Thus, even if the residual clause of the career offender Guideline was unconstitutional, Davis’ concurrent 327-month sentence would be “unaffected.” Judge Pryor did not interpret In re Williams to be limited to concurrent sentences that were mandatory. A concurrent sentence, even if not mandatory, would be valid and not affected by Johnson.]