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Eaton v. United States

United States District Court, D. North Dakota

July 18, 2017

James Blain Eaton, Petitioner,
v.
United States of America, Respondent. United States of America, Plaintiff,
v.
James Blain Eaton, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          Daniel L. Hovland, Chief Judge

         The Defendant is serving a 120-month sentence for possession of a firearm and ammunition by a convicted felon. On June 1, 2016, the Defendant filed a “Motion to Vacate under 28 U.S.C. § 2255 (Johnson vs. US).See Docket No. 45. 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 June 16, 2016, the Government filed a response in opposition to the motion. See Docket No. 47. The Defendant filed a supplement on June 24, 2016. See Docket No. 52. The Defendant filed a reply on July 6, 2016. See Docket No. 54. The Government filed a supplemental response on July 7, 2016. See Docket No. 57. For the reasons set forth below, the motion is granted.

         I. BACKGROUND

         On March 30, 2010, a federal grand jury indicted Eaton 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) (count one) and one count of possession of a firearm and ammunition by an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (count two). See Docket No. 3. On June 21, 2010, Eaton pled guilty to count one of the indictment. See Docket No. 31. A sentencing hearing was held on September 30, 2010, at which time it was determined that because Eaton had prior convictions from Oklahoma for burglary conviction, robbery by force, and attempted robbery in the first degree, he qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See Docket No. 41. The Court's finding that Eaton was an armed career criminal triggered a mandatory minimum sentence of 180-months. The advisory Sentencing Guideline range was determined to be 168-210 months. See Docket No. 44. After granting the Government's motion for a downward departure, the Court sentenced Eaton to 120-months in prison and 36-months of supervised release. See Docket No. 43. No appeal was taken.

         On June 1, 2016, Eaton 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. Eaton contends that in the wake of Johnson, he no longer qualifies as an armed career criminal. Eaton's prior convictions, which resulted from guilty pleas, are as follows:

1) Robbery by force, Noble County, Oklahoma, on or about November 9, 2000, (Case No. CF-2000-112). See Docket No. 47-2.
2) Attempted robbery in the first degree, Garfield County, Oklahoma, on or about June 14, 2001, (Case No. CF-2000-432). See Docket No. 49.
3) Burglary in the second degree, Payne County, Oklahoma, on or about October 13, 2000, (Case No. CF-2000-421). See Docket Nos. 47-5 and 47-6.

         The Government contends Eaton's burglary conviction still qualifies as a 924(e) predicate under the “enumerated offenses clause” of the ACCA and his robbery by force and attempted robbery in the first degree convictions qualify under the “force clause” of the ACCA. The matter has been fully briefed and is ripe for a decision.

         II. STANDARD OF REVIEW

         “28 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 343.

         In a 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.

         On a 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.

         III. LEGAL DISCUSSION

         The 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 120-months. See 18 U.S.C. § 924(a)(2). 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 adult, that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

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.”

         In 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.

         The 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 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 elements of the offense are the same or narrower than the elements of the generic offense. Descamps, 133 S.Ct. at 2281. If the statute is broader than the generic crime, a conviction under that statute cannot serve as a predicate offense under the ACCA. Id. at 2283.

         However, in a narrow range of cases, the sentencing court may apply the “modified categorical approach” and look beyond the statutory elements to a limited class of documents to determine what the elements of the underlying offense were. Id. at 2283-84. The United States Supreme Court has said lower courts may only look at the elements of the charge to which the defendant pled guilty and not to the particular facts or the factual basis for the plea. Taylor, 495 U.S. at 600-01 (rejecting the factual approach which permitted sentencing courts to look at “the facts of each defendant's conduct” in favor of a categorical elements only approach); Descamps, 133 S.Ct. at 2284 (stating the “factual basis” for the prior plea is not to be considered when applying the modified categorical approach); Mathis, 136 S.Ct. at 2252 (adhering to an “elements-only inquiry” which does not permit a judge to look at “what the defendant had actually done” or “explore the manner in which the defendant committed that offense”).

         “The modified categorical approach is available only when a statute lists alternative elements and thus defines multiple separate crimes” and reference to the statute alone does not disclose which version of the offense was charged. United States v. Bess, 655 Fed.App'x 518, 520 (8th Cir. 2016). Such a statute is “divisible, ” because it “comprises multiple, alternative versions of the crime.” Descamps, 133 S.Ct. at 2284. The modified categorical approach may only be used when the elements of the offense are divisible and may not be used when the elements are indivisible. Id. at 2282. The limited class of documents the court may review to determine which alternative, with which elements, formed the basis of the prior conviction includes the charging document, jury instructions, plea agreement, and transcript of the plea colloquy. Id. at 2284. The court can then compare the elements of the prior conviction with the elements of the generic offense, just as is done when applying the categorical approach, and determine ...


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