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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA Kentucky inmate has been granted sentencing relief after the Indiana Southern District Court determined that his prior Illinois residential burglary conviction does not qualify as a violent felony under the Armed Career Criminal Act.
In 2018, Paul Erlinger pleaded guilty to being a felon in possession of a firearm. At the plea and sentencing hearing, Erlinger was found to be an armed career criminal based on his 1991 conviction for Illinois residential burglary, a 1991 Pike County, Indiana, conviction for burglary, a 2003 Pike County conviction for dealing in methamphetamine and a 2003 Pike County conviction for dealing in a schedule II controlled substance.
After accepting his plea, the court sentenced Erlinger to 15 years in prison, which was enhanced under the Armed Career Criminal Act 18 U.S.C. § 924(e). He now resides at Ashland Federal Correctional Institution in Ashland, Kentucky.
Seeking relief from his conviction and sentence under 28 U.S.C. §2255, Erlinger argued that he was denied due process and that his counsel failed to object to the use of his Pike County burglary and meth convictions in finding him to be an armed career criminal. Specifically, Erlinger argued on appeal that the government violated his due process rights by failing to file notice of his ACCA predicates and by presenting incorrect information.
But Erlinger did not prevail on his due process argument. According to Indiana Southern District Judge Jane Magnus-Stinson, the charging information indicated that Erlinger had prior felony convictions that made him eligible for a sentencing enhancement under the ACCA.
“In addition, Erlinger’s counsel submitted a sentencing memorandum challenging the convictions identified in the PSR as prior convictions supporting enhancement. This was enough to provide him notice of the potential for an increased sentence,” Magnus-Stinson wrote. “… And, while Erlinger contends the government provided incorrect information, he has not identified how the information was wrong. He therefore has not shown that his due process rights were violated.”
However, the district judge noted that although the other convictions identified in the presentence report as ACCA predicates were sufficient to support the sentence enhancement even without consideration of the meth convictions, the court relied on Erlinger’s prior Illinois residential burglary conviction.
“…(T)he Seventh Circuit has since held that Illinois residential burglary does not qualify as a violent felony under the ACCA,” Magnus-Stinson wrote. “… Further, while Erlinger has several convictions for burglary in Dubois County, Indiana, the Court expressly did not rely on those convictions when it imposed the ACCA enhancement.
“At Erlinger’s resentencing,” she wrote, “the parties may present evidence and argument regarding whether those convictions are valid ACCA predicates and whether the Court should rely on them when it had not done so at his original sentencing hearing.”
Thus, finding Erlinger entitled to resentencing and relief, Magnus-Stinson granted his motion. However, it was granted only to the extent that the judgment entered in his 2018 criminal case would be vacated subject to resentencing.
“Erlinger shall remain in custody pending resentencing,” she wrote in the July 12 order.
The motion to vacate will also be terminated in the underlying criminal action.
The case is Paul Erlinger v. United States of America, 2:19-cv-00518.
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