United States District Court, D. North Dakota
ORDER GRANTING DEFENDANT'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
L. Hovland, Chief Judge
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
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
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
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.
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.
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
120-months. See 18 U.S.C. § 924(a)(2). The ACCA
defines “violent felony” as follows:
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 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
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 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.
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”).
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 ...