United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING MOTION PURSUANT TO 28 U.S.C. §
D. TODD, UNITED STATES DISTRICT JUDGE
27, 2003, Rocky Morris White was convicted by a jury on one
count of possessing a firearm after having been convicted of
a felony, in violation of 18U.S.C. §922(g). (No.
02-10069, Crim. ECF Nos. 40 & 44.) At the original
sentencing hearing this Court determined, based on his prior
convictions for aggravated burglary, that White qualified for
an enhanced sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). See also U.S.S.G
§ 4B1.4. He was sentenced to a 260-month term of
imprisonment and a three-year term of supervised release.
(No. 02-10069, Crim. ECF Nos. 53, 54 & 60.) The Sixth
Circuit affirmed on appeal. United States v. White,
131 F.App'x 54 (6th Cir.), cert, denied, 546
U.S. 850 (2005).
filed a pro se motion pursuant to 28 U.S.C. §
2255 on August 7, 2006, White v. United States, No.
06-1173-JDT-egb (W.D. Tenn.), arguing, inter alia,
that his appellate counsel was ineffective in failing to
raise a claim under United States v. Booker, 543
U.S. 220 (2005). The Government conceded that issue, and the
Court granted White's § 2255 motion and set aside
the criminal judgment. At a re-sentencing hearing on March
24, 2009, the Court again sentenced White under the ACCA,
imposing a 240-month term of imprisonment and a 3-year period
of supervised release. (No. 02-10069, Crim. ECF Nos. 92, 93
& 100.) The Sixth Circuit again affirmed. United
States v. White, 380 F. App'x 483 (6th Cir. 2010),
cert. denied, 563 U.S. 911 (2011).
6, 2016, White filed the present § 2255 motion,
contending that his sentence is unlawful under the decision
in Johnson v. United States, 135 S.Ct. 2551 (2015).
(ECF No. 1.) Counsel was appointed, and the Sixth Circuit
subsequently authorized the Court to hear this second or
successive § 2255 motion. In re White, No.
16-5678 (6th Cir. Oct. 25, 2016).
Johnson, the Supreme Court held the residual clause
of the ACCA was unconstitutionally vague and that increasing
a defendant's sentence under the clause is, therefore, a
denial of due process. 135 S.Ct. at 2563. The decision in
Johnson later was held to be retroactive and thus
applicable to cases on collateral review. Welch v. United
States, 136 S.Ct. 1257 (2016).
noted in the Court's order denying White's prior
§ 2255 motion, see White v. United States, No.
11-1380, ECF No. 4 at PageID 35-36, at the time of his
re-sentencing it was the law in the Sixth Circuit that
Tennessee aggravated burglary qualified as a categorical
violent felony under the ACCA's enumerated offenses
clause, not under the residual clause. See United States
v. Nance, 481 F.3d 882, 888 (6th Cir. 2007). However,
the Sixth Circuit has now overruled Nance in
United States v. Stitt, 860 F.3d 854, 860-61 (6th
Cir. 2017) (en banc). The Court of Appeals held in
Stitt that “[b]ecause Tennessee's
aggravated-burglary statute is both broader than generic
burglary under the categorical approach and indivisible, a
conviction under the statute does not count as a violent
felony under the ACCA.” Id. at 862. As a
result of that decision, White's three prior Tennessee
convictions for aggravated burglary can no longer be used as
predicate offenses under either the enumerated offenses
clause or the residual clause of the ACCA. Therefore, White
no longer qualifies as an armed career criminal and is
entitled to relief under § 2255.
has filed a motion asking that he be granted immediate
release from incarceration. (ECF No. 12.) Absent the ACCA
enhancement, the maximum prison sentence White could have
received was 10 years or 120 months, which he has already
served. A status conference with counsel was held on August
9, 2017, and the United States has now filed a response to
the motion agreeing that under Johnson and
Stitt White's prior convictions no longer
qualify him as an armed career criminal and that, if the
Court grants White's § 2255 motion on that basis, an
amended criminal judgment should be entered sentencing him to
time served. (ECF No. 15.)
the ACCA no longer applies to White, the motion under 28
U.S.C. § 2255 is GRANTED. The judgment in the criminal
proceeding is hereby SET ASIDE. The Clerk is directed to
prepare an amended criminal judgment sentencing White to time
served and three years of supervised release.
Clerk is also directed to prepare a judgment in this civil
 The Court specifically identified five
of White's prior convictions that qualified as ACCA
predicate offenses: a conviction for aggravated assault, a
conviction for sale of crack cocaine, and three aggravated
burglaries as previously mentioned. (No. 02-10069, Crim. ECF
No. 100 at PageID 153.)
 After the judgment on re-sentencing
became final, White again filed a pro se § 2255
motion, White v. United States, No. 11-1380-JDT-egb
(W.D. Tenn.), in which, inter alia, he challenged
his ACCA-enhanced sentence. While the Court found that
White's prior conviction for aggravated assault should
not be counted due to the absence of the documentation
specified in Shepard v. United States, 544 U.S. 13
(2005), relief was denied because at that time he still had
four prior ACCA-qualifying convictions. White v. United
States, No. 11-1380 (W.D. Tenn. Nov. 13, 2013) ...