In Re: Welch, No. 18-10592 (11th Cir. 2018)
Annotate this CaseIn 1995, Austin, with his two-year-old son in his car, was using a payphone when Welch approached and put a gun at Austin’s side. A struggle ensued. Welch escaped with Austin ’s car, which was recovered nearby (Austin’s money was gone); his son was found wandering the streets. Austin's gunshot wound resulted in his castration. Welch, on parole, later fired shots at a District Attorney Investigator, fled, and was arrested. His bag contained stolen firearms and jewelry. Welch confessed to shooting Austin. He was charged with conspiracy to commit carjacking, carjacking, using a firearm during a crime of violence, being a felon in possession of a firearm, and possession of stolen firearms. Welch pleaded guilty without an agreement. Welch’s guidelines range was 188-235 months, reflecting a 15-year Armed Career Criminal Act (ACCA) enhancement, based on Alabama convictions for first-degree robbery and first-degree assault. The Eleventh Circuit rejected his pro se motion under 28 U.S.C. 2255(h) and 2244(b)(3)(A), to consider a successive motion to vacate or correct his life sentence. The motion was based on a new, retroactive, rule of law: the Supreme Court's "Johnson" holding that ACCA’s residual clause is unconstitutionally vague. The court applied the modified categorical approach to Alabama’s first-degree assault statute and examined Welch ’s indictments. The least of the acts criminalized by the statute includes the use, attempted use, or threatened use of physical force against another person, as required by ACCA’s elements clause.
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