United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
L. Hovland, Chief Judge United States District Court
Defendant is serving a 180-month sentence for possession of a
firearm and ammunition by a convicted felon. On June 21,
2016, the Defendant received permission from the Eighth
Circuit Court of Appeals to file a successive Section 2255
motion. See Docket No. 66. On June 22, 2016, the
Defendant filed a “Motion to Correct Sentence Pursuant
to 28 U.S.C. § 2255 (Johnson Claim.).”
See Docket No. 68. The Defendant's motion is
based on the United States Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551 (2015).
After an initial review of the motion, the Court ordered the
Government to file a response. On July 25, 2016, the
Government filed a response in opposition to the motion.
See Docket No. 72. The Defendant filed a reply on
August 9, 2016. See Docket No. 75. For the reasons
set forth below, the motion is denied.
August 24, 2011, a federal grand jury indicted Winarske on
one count of possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2), and 924(e). See Docket No. 1.
On March 13, 2012, Winarske entered an open, conditional
guilty plea to the one count indictment. See Docket
No. 36. A sentencing hearing was held on June 29, 2012, at
which time it was determined that because Winarske had five
prior burglary convictions in North Dakota and two corruption
of a minor convictions, he qualified as an armed career
criminal under Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). See
Docket No. 42. No specific finding was made as to whether the
offenses qualified under the “enumerated offenses
clause, ” the “residual clause, ” or both.
See Docket No. 51. The Court's finding that
Winarske was an armed career criminal triggered a mandatory
minimum sentence of 180-months. The advisory Sentencing
Guideline range was determined to be 180-210 months.
See Docket No. 38, p. 17. The Court sentenced
Winarske to 180-months in prison, followed by 24 months of
supervised release. See Docket No. 43. An appeal was
taken and the conviction was affirmed. United States v.
Winarske, 715 F.3d 1063, 1065 (8th Cir. 2013).
22, 2016, Winarske filed a Section 2255 motion citing the
recent opinion of the United States Supreme Court in
Johnson v. United States, 135 S.Ct. 2551 (2015), as
the basis for the motion. Prior to filing his Section 2255
motion, Winarske obtained permission from the Eighth Circuit
Court of Appeals to file a successive Section 2255 motion
challenging his sentence under the ACCA. Winarske contends
that in the wake of Johnson, he no longer qualifies
as an armed career criminal. The Government concedes the two
corruption of a minor convictions no longer qualify as
“violent felony” convictions because the
Johnson decision declared the residual clause of the
ACCA to be unconstitutional, and the offenses do not qualify
as a “violent felony” under any other section of
the ACCA. The Government maintains Winarske's burglary
convictions still qualify as 924(e) predicates under the
“enumerated offenses clause” of the ACCA. The
matter has been fully briefed and is ripe for a decision.
STANDARD OF REVIEW
U.S.C. § 2255 provides a federal prisoner an avenue for
relief if his ‘sentence was imposed in violation of the
Constitution or laws of the United States, or . . . was in
excess of the maximum authorized by law.'” King
v. United States, 595 F.3d 844, 852 (8th Cir. 2010)
(quoting 28 U.S.C. § 2255(a)). This requires a showing
of either constitutional or jurisdictional error, or a
“fundamental defect” resulting in a
“complete miscarriage of justice.” Davis v.
United States, 417 U.S. 333, 346 (1974); Hill v.
United States, 368 U.S. 424, 428 (1962). A 28 U.S.C.
§ 2255 motion is not a substitute for a direct appeal
and is not the proper way to complain about simple trial
errors. Anderson v. United States, 25 F.3d 704, 706
(8th Cir. 1994). A 28 U.S.C. § 2255 movant “must
clear a significantly higher hurdle than would exist on
direct appeal.” United States v. Frady, 456
U.S. 152, 166 (1982). Section 2255 is “intended to
afford federal prisoners a remedy identical in scope to
federal habeas corpus.” Davis, 417 U.S. at
case involving an ACCA conviction based on Johnson,
“the movant carries the burden of showing that the
Government did not prove by a preponderance of the evidence
that his conviction fell under the ACCA.” Redd v.
United States, No. 4:16-CV-1665, 2017 WL 633850, at *2
(E.D. Mo. Feb. 16, 2017) (quoting Hardman v. United
States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016)). The
movant need not show he was sentenced under the residual
clause to maintain a Section 2255 claim under
Johnson. United States v. Winston, 850 F.3d
677, 682 (4th Cir. 2017) (noting sentencing judges are not
required to specify under which clause of 18 U.S.C. §
924(e)(2)(B) an offense qualified as a violent felony). A
movant may rely on the new rule of constitutional law
announced in Johnson if his sentence may
have been predicated on the now void residual clause.
Section 2255 motion, the determination of whether a prior
conviction qualifies as a predicate violent felony under the
ACCA is subject to de novo review. Winston,
850 F.3d at 683; In re Chance, 831 F.3d 1335,
1338-39 (11th Cir. 2016). The court's review is not
constrained to the law as it existed when the movant was
sentenced, but should be made with the assistance of binding
intervening precedent which clarifies the law. In re
Chance, 831 F.3d at 1340; Winston, 850 F.3d at
683-84 (applying intervening case law); Redd, No.
4:16-CV-1665, 2017 WL 633850, at *4 n. 3. (noting decisions
which clarify or apply existing law or a settled rule apply
on collateral review). The burden remains on the movant to
show that his sentence, in the wake of Johnson, is
no longer authorized by the ACCA. In re Chance, 831
F.3d at 1341.
ACCA's 180-month mandatory minimum penalty applies when a
defendant has at least three prior felony convictions for a
“serious drug offense” or a “violent
felony, ” as defined in 18 U.S.C. § 924(e)(2).
Absent the armed career criminal finding, the maximum
sentence for being a felon in possession of a firearm is ten
years. See 18 U.S.C. § 924(a)(2). Winarske has
five prior felony convictions for burglary under North Dakota
law. The question before the Court is whether Winarske's
five burglary convictions qualify as violent felonies under
the ACCA's enumerated offenses clause. The ACCA defines
“violent felony” as follows:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
18 U.S.C. § 924(e)(2)(B) (emphasis added). The portion
of this definition in bold is known as the “force
clause” or “elements clause.” The
underlined portion of this definition is known as the
“enumerated offenses clause.” The italicized
portion is known as the “residual clause.”
Johnson, the United States Supreme Court held the
residual clause of the ACCA was vague, and the application of
the residual clause violates the Constitution's guarantee
of due process. Johnson, 135 S.Ct. at 2563. The
holding of Johnson applies retroactively on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1268 (2016). However, the holding in Johnson
does not apply to the advisory federal Sentencing Guidelines.
Beckles v. United States, 137 S.Ct. 886, 895 (2017)
(holding the Sentencing Guidelines are not subject to a void
for vagueness challenge under the Fifth Amendment Due Process
Clause). Therefore, the residual clause no longer provides a
basis for qualifying a prior conviction as a “violent
felony” under the ACCA.
crimes listed in the enumerated offense clause refer to the
generic version of the offense, and not to all versions of
offenses. See Taylor v. United States, 495 U.S. 575,
598 (1990); Mathis v. United States, 136 S.Ct. 2243,
2248 (2016). In terms of burglary, the offense at issue in
this case, the Supreme Court has said generic burglary
consists of the “unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to
commit an offense.” Taylor, 495 U.S. at 599.
In order to determine if a prior conviction qualifies, courts
apply the “categorical approach.”
Taylor, 495 U.S. at 600; Descamps v. United
States, 133 S.Ct. 2276, 2281 (2013). The categorical
approach requires comparing the elements of the offense of
conviction to the elements of the generic offense.
Taylor, 495 U.S. at 600; Descamps, 133
S.Ct. at 2281. The particular facts underlying the prior
conviction are not considered. Taylor, 495 U.S. at
600. The prior conviction qualifies only if the ...