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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. CASE NOS.: 3:10cr62/MCR/CJK

3:16cv280/MCR/CJK

DONALD LAMAR WADE

 /

O R D E R

Defendant Donald Lamar Wade has filed a Motion to Correct Sentence

Under 28 U.S.C. § 2255 contending that he is entitled to sentencing relief based on

Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF Nos. 33, 35). The

Government concedes that Mr. Wade is entitled to relief. (ECF No. 39). 

Mr. Wade pleaded guilty to the offense of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). (ECF No. 20). The court

found Mr. Wade to be an armed career criminal after adopting the findings of the

Presentence Investigation Report that he had prior Florida convictions for offenses

including Burglary of a Dwelling while Armed, Kidnapping, Robbery, and Escape.

(ECF No. 26). Pursuant to the Armed Career Criminal Act, (“ACCA”), a person

who has three previous convictions for a violent felony, a serious drug offense, or

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both is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. §

924(e)(1). The statutory definition of a violent felony under the ACCA is an

offense that either “(i) has as an element the use, attempted use, or threatened use

of physical force against the person of another [known as the elements clause] or

(ii) is burglary, arson, or extortion, involves the use of explosives [known as the

enumerated offenses clause] or otherwise involves conduct that presents a serious

potential risk of physical injury to another [known as the residual clause].” 18

U.S.C. § 924(e)(2)(B)(i) and (ii). An individual subject to ACCA’s enhanced

penalties also is subject to a greater Guidelines range pursuant to U.S.S.G. § 4B1.4. 

Mr. Wade was sentenced to a term of 180 months imprisonment. Absent the

application of the ACCA enhancement, Mr. Wade would have faced a maximum

sentence of ten years imprisonment, see 18 U.S.C. § 924(a)(2), and the court

indicated at sentencing that absent the ACCA enhancement, it would have imposed

the statutory maximum sentence to run consecutive to the state sentence. (ECF

No. 37 at11). 

In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court ruled

that the ACCA’s “residual clause” was unconstitutionally vague. Johnson, 135

S.Ct. at 2563. Thus, a prior conviction can only qualify as a “violent felony” if it

Case Nos.: 3:10cr62/MCR/EMT; 3:16cv280/MCR/EMT

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falls within the elements clause or is one of the enumerated offenses. Escape is no

longer a violent felony under the ACCA after Johnson. See United States v.

Cummings, 628 F. App’x. 719 (11 Cir. 2016). Mr. Wade’s burglary, robbery, and

th

kidnapping offenses occurred during a single criminal episode and as such count as

a single predicate offense for purposes of § 924(e)(1). See United States v.

McCloud, 818 F.3d 591, 595 (11 Cir. 2016); United States v. Sweeting, 933 F.2d th

962, 967 (11 Cir. 1991). Therefore, Mr. Wade no longer has the three requisite th

predicate convictions to support the application of the ACCA enhancement, and he

is entitled to be resentenced. 

Accordingly it is ORDERED:

1. Defendant Wade’s Motion to Correct Sentence under 28 U.S.C. § 2255

(ECF No. 33) is GRANTED. 

2. Within fourteen (14) days from the date of this order, the U.S. Probation

Office shall prepare a supplemental addendum to the Presentence

Investigation Report including amended Guidelines calculations, and

provide same to the parties and the court. The parties shall have fourteen

(14) days to notify the court and the Probation Office of any objections to

the revised calculations. Depending on the parties’ responses, the Court will

Case Nos.: 3:10cr62/MCR/EMT; 3:16cv280/MCR/EMT

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modify Mr. Wade’s sentence without a resentencing hearing. If there are

objections, the court will schedule a resentencing. 

DONE AND ORDERED this 24th day of August 2016.

 s/M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

Case Nos.: 3:10cr62/MCR/EMT; 3:16cv280/MCR/EMT

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