Almond v. United States

854 F. Supp. 439, 1994 U.S. Dist. LEXIS 12733, 1994 WL 256915
CourtDistrict Court, W.D. Virginia
DecidedJune 7, 1994
DocketCiv. A. 93-0623-R
StatusPublished
Cited by6 cases

This text of 854 F. Supp. 439 (Almond v. United States) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Almond v. United States, 854 F. Supp. 439, 1994 U.S. Dist. LEXIS 12733, 1994 WL 256915 (W.D. Va. 1994).

Opinion

MEMORANDUM OPINION

TURK, District Judge.

CHARLES A.L. ALMOND, a federal inmate proceeding pro se, brings this action as a motion to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255. He challenges the validity of his conviction and sentence on several grounds. Respondent has filed a motion to dismiss, to which petitioner has responded, making the matter ripe for the court’s consideration. After review of the record, the court is of the opinion that respondent’s motion must be granted and the petition dismissed.

A. Factual Contentions

A memorandum of facts in Petitioner Almond’s criminal file relates his version of the events leading up to his conviction under 18 U.S.C. § 922(g). 1 Almond, who was 60 years old at time of sentencing, has a second grade education. He is self-employed, operating an automobile garage, which he owned, near Staunton, Virginia; his son, Charles, Jr., age 23, worked with him in the business.

Charles, Jr., often went to Almond’s house to watch T.V. He and Almond’s adopted son, Anthony, age 8, would argue about what program to watch. The arguments disrupted the household to such an extent that Almond went to the Chesapeake Bay for several days to go fishing and get away from the turmoil. When he returned, he found that the T.V. program argument was worse than ever.

On July 14, 1991, Almond was at his home with several family members. As Almond *441 sat in his armchair facing the T.V., the “which channel” argument between Anthony and Charles, Jr., erupted anew. Almond announced that he would settle the argument. So saying, he reached to the back of his chair’s cushions, grabbed a .22 revolver, and shot the television set.

The blast sent glass shards flying. Pieces nicked Almond’s baby granddaughter, April, and his stepdaughter. Neither injury was serious or permanent. However, April’s parents took her to the emergency room, where the staff reported the gunshot to the sheriffs office. The sheriffs office obtained a search warrant and seized several firearms at Almond’s home. A subsequent state charge for discharging a firearm in an occupied building was nolle prossed, as all agreed Almond had no intent to harm anyone.

Then, on March 4, 1992, Almond was indicted by a federal grand jury under 18 U.S.C. § 922(g), possession of a firearm as a felon, and 18 U.S.C. § 924(e), a career offender sentencing provision, carrying a mandatory minimum sentence of fifteen years without chance of parole. On April 11, 1992, the government notified Almond of the prior Virginia convictions for violent felonies which would be the basis for sentencing Almond under § 924(e) as a career offender. The three convictions were as follows:

(1) July 31,1968, conviction for burglary of an unoccupied building;
(2) January 20, 1968, conviction of throwing a missile (a rock) at an automobile occupied by his father-in-law and shattering the windshield; and
(3) May 1,1968, conviction of breaking and entering the office of Peeler Oil Company.

Almond pleaded not guilty, but, after a bench trial, he was convicted under § 922(g). At sentencing, based on the three prior felony convictions listed above, the court found him to be an armed career criminal under § 924(e) and imposed the mandatory minimum sentence of fifteen years.

B. Petitioner’s Claims

Almond’s claims are set forth in his motion as follows:

(A) The court erred in sentencing petitioner as a “Career Criminal” under 18 U.S.C. § 924(e);
(B) The indictment is defectiv[e] because:
(1) The indictment does not list the essential elements that are requir[ed] to make the indictment valid;
(2) The indictment does not state if the petitioner had gotten his civil rights back or not;
(3) 18 U.S.C. § 922(g)(1) is not a crime of violence by the U.S. Supreme Court and the Sentencing Guidelines;
(4) The indictment must have “an element the use, attempted use, or threatened use of physical force against another ...” This was not alleged in the indictment;
(5) Petitioner’s prior convictions were not listed in the indictment as required by law.
(C) Petitioner alleges ineffective assistance of counsel], because he did not appeal petitioner’s conviction;
(D) There is no [mention] in the indictment of any crimes of violence or felonies, or any reference as to “three prior felonies”; and
(E) Possession of burglary tools is not a crime of violence.

C. Analysis

(1) Claim E. First, the court notes that Almond, in his response to respondent’s motion, stipulates to the fact that the government did not include his conviction for possession of burglary tools as basis for sentencing him under § 924(e). Section 924(e) requires that the three prior felony convictions be for crimes of violence, as defined in the statute. As it is now undisputed that the government did not count the burglary tools conviction as a violent offense for purposes of § 924(e), Claim E shall be denied.

(2) Claim B(3). The court also notes that Almond’s federal offense under § 922(g) was not included in the Government’s Information and Notice Advising Petitioner that his Prior Convictions Will Enhance his Sentence; in addition, because the § 922(g) charge was *442 not a “prior” conviction, the court finds that it could not have been and was not counted to qualify Almond for an enhanced sentence under § 924(e). Thus, the court finds Claim B(3) to be meritless, and it shall also be denied.

(3) Claims B(4) and D. The respondent argues that the elements of § 924(e) need not appear in the indictment, as § 924(e) is not a substantive charge, but rather a sentence enhancement provision. The court agrees. In Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct.

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Bluebook (online)
854 F. Supp. 439, 1994 U.S. Dist. LEXIS 12733, 1994 WL 256915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/almond-v-united-states-vawd-1994.