IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 11-0125-WS

 )

MILTON GLEN JONES, )

 )

Defendant. )

ORDER

This matter comes before the Court on defendant Milton Glen Jones’ Motion to Vacate 

Sentence Pursuant to 28 U.S.C. § 2255 and for Summary Disposition (doc. 90). The 

Government has filed a Response (doc. 93) stating that it does not object to the vacatur of Jones’ 

sentence.

On July 25, 2011, Jones entered a guilty plea to one count of being a felon in possession 

of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Doc. 35.) At the sentencing hearing 

conducted on April 12, 2012, the undersigned adopted the Presentence Investigation Report 

(“PSR”) in its entirety. The PSR concluded that Jones was subject to a 15-year mandatory 

minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (the “ACCA”), 

because he had at least three previous convictions for “violent felonies,” all for Burglary in the 

Third Degree. In accordance with the ACCA, the Court sentenced Jones to a term of 

imprisonment of 180 months.1

 1 The PSR makes clear that, had Jones not been subject to the Armed Career 

Criminal Act, his base offense level would have been 24 (pursuant to U.S.S.G. § 2K2.1(a)(2)), 

with a two-level enhancement for the number of firearms, a two-level enhancement for 

possession of stolen firearms, a four-level enhancement for possession of a firearm in connection 

with another felony offense, and a three-level reduction for acceptance of responsibility, for a 

total offense level of 29. Combined with a criminal history category of VI, Jones’ calculated 

guideline range (absent the effects of ACCA, either in terms of the mandatory minimum 

sentence prescribed by § 924(e)(1) or the armed career criminal guideline found at U.S.S.G. § 

4B1.4(a)) would have been 151 to 188 months. However, that range would have been 

constrained by the 120-month statutory maximum sentence fixed by 18 U.S.C. § 924(a)(2) for 

the offense of conviction.

Case 1:11-cr-00125-WS-C Document 94 Filed 07/12/16 Page 1 of 4
-2-

Under the ACCA definition of the term “violent felony,” a previous conviction qualifies

as a predicate offense for ACCA eligibility if it satisfies any one of the following: (i) the 

elements clause (namely, that it “has as an element the use, attempted use, or threatened use of 

physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i)); (ii) the enumerated 

clause (namely, that it “is burglary, arson, or extortion, [or] involves use of explosives,” 18 

U.S.C. § 924(e)(2)(B)(ii)); or (iii) the residual clause (namely, that it “otherwise involves 

conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 

924(e)(2)(B)(ii)). It appeared at the time of sentencing that Jones’ numerous previous Burglary 

Third convictions were ACCA-qualifying predicate offenses under both the enumerated clause 

and the residual clause.

In his Motion to Vacate, which marks his first-filed § 2255 motion, Jones seeks relief 

pursuant to Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In 

that landmark decision, the Supreme Court held that “imposing an increased sentence under the 

residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due 

process.” 135 S.Ct. at 2563. Furthermore, in Welch v. United States, --- U.S. ----, 136 S.Ct. 

1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that “Johnson is thus a substantive 

decision and so has retroactive effect under Teague in cases on collateral review.” 136 S.Ct. at 

1265. Relying on Johnson and Welch, Jones correctly posits that his Burglary Third Degree 

convictions no longer qualify as ACCA predicates under the residual clause.

Similarly, Jones correctly maintains that his previous Burglary Third Degree convictions 

can no longer be counted as ACCA predicate offenses under the enumerated clause. See Mays v. 

United States, 817 F.3d 728, 733 (11th Cir. 2016) (applying Supreme Court’s Descamps decision 

to conclude that “a conviction for third degree burglary cannot qualify as a violent felony under 

the enumerated clause because Alabama Code § 13A-7-7 is an indivisible, non-generic statute”); 

In re Hires, --- F.3d ----, 2016 WL 3342668, *5 (11th Cir. June 15, 2016) (recognizing that 

“Descamps is retroactive for a first § 2255 motion”); In re Griffin, --- F.3d ----, 2016 WL 

3002293, *6 (11th Cir. May 25, 2016) (“we have held that the rule in Descamps is not new and 

thus is retroactive in a first § 2255 motion case”). And those convictions obviously cannot 

qualify as ACCA predicates under the elements clause because the Alabama crime of Burglary in 

the Third Degree does not have as an element the use, attempted use or threatened use of 

physical force against another person. See, e.g., Mays, 817 F.3d at 733 n.5 (recognizing that 

Case 1:11-cr-00125-WS-C Document 94 Filed 07/12/16 Page 2 of 4
-3-

“third degree burglary in Alabama does not have as an element the use, attempted use, or 

threatened use of physical force against the person of another”) (citation and internal quotation 

marks omitted).

The foregoing considerations lead inexorably to the conclusion that Jones no longer has 

sufficient predicate convictions that would subject him to an enhanced penalty under the ACCA, 

which animated the 180-month mandatory minimum sentence he received in April 2012. What’s 

more, these determinations are retroactive in the context of Jones’ first § 2255 petition. Pursuant 

to Welch, the Johnson decision is retroactive in cases on collateral appeal. And the Eleventh 

Circuit has repeatedly recognized in recent published decisions such as Mays, Hires and Griffin

that Descamps’ disqualification of third-degree burglary under the enumerated clause is 

retroactive on a first § 2255 motion. In its Response (doc. 93), the Government disputes neither 

the absence of ACCA-qualifying predicate offenses for Jones nor the retroactive application of 

both Johnson and Descamps to his sentence. To the contrary, the Government reasons that it 

matters not whether the sentencing court deemed Jones’ Burglary Third convictions to qualify as 

ACCA predicates under the residual clause or under the enumerated clause, because either way 

vacatur of his sentence is appropriate. (Doc. 93, at 4-5.)

For all of these reasons, the Court concludes that Jones’ § 2255 Motion is due to be 

granted, that his previous ACCA sentence of 180 months is due to be vacated, and that he is due 

to be resentenced. As discussed in footnote 1 supra, after stripping away the ACCA mandatoryminimum sentence of 180 months and the armed career criminal guideline (U.S.S.G. § 4B1.4), 

Jones’ revised calculated guidelines range would be 151 to 188 months; however, Jones would 

also be subject to a statutory maximum term of imprisonment of 120 months by operation of 18 

U.S.C. § 924(a)(2), such that his guideline range would effectively be 120 months, pursuant to 

U.S.S.G. § 5G1.1(a). Therefore, the Court would propose to vacate Jones’ sentence and

resentence him to a guideline sentence of 120 months.

That said, it is of course true that Jones has the right to attend and to allocute at any 

resentencing proceeding. See Rule 43(a)(3), Fed.R.Crim.P. (defendant’s presence required at 

sentencing); Rule 32(i)(4)(A) (court must provide defendant and defendant’s attorney an 

opportunity to speak “[b]efore imposing sentence”); United States v. Taylor, 11 F.3d 149, 152 

(11th Cir. 1994) (“As this was a resentencing after vacation of the original sentence, Taylor had a 

right to be present and allocute.”). However, those rights can be waived. See, e.g., United States 

Case 1:11-cr-00125-WS-C Document 94 Filed 07/12/16 Page 3 of 4
-4-

v. Rodriguez-Velasquez, 132 F.3d 698, 699-700 (11th Cir. 1998) (recognizing defendant’s waiver 

of right of allocution); Rule 43(c)(1)(B), Fed.R.Crim.P. (providing that defendant waives right to 

be present by being voluntarily absent during sentencing). Jones’ § 2255 Motion requests 

“summary disposition,” but is not clear as to whether he waives the above-referenced rights. 

Accordingly, the defendant is ordered, on or before July 26, 2016, to file a statement of position 

as to whether he waives any right to be present or to allocute, given the disruption of his living 

situation that the exercise of such rights may entail,2 as well as any other pertinent factors. 

Defense counsel is instructed to consult with Jones concerning these matters before submitting 

his statement of position. If Jones elects to waive his rights to be present and to allocute, and if 

he does not otherwise object, the Court will summarily vacate his sentence and resentence him to 

a guidelines sentence of 120 months in accordance with the revised calculations set forth herein.

DONE and ORDERED this 12th day of July, 2016.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 2 Among other relevant considerations, presence at resentencing would remove the 

defendant from his current place of incarceration with no guarantee of return to that facility or 

his present cell; would interrupt his participation in any drug treatment or other rehabilitation 

program; and would require interim housing at one or more local jail facilities.

Case 1:11-cr-00125-WS-C Document 94 Filed 07/12/16 Page 4 of 4