United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by David Koeller, a person in federal custody. He alleges that his classification as an Armed Career Criminal was improper. His argument is that the decision issued in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013), altered the way his felony convictions for Missouri Second Degree Burglary should be analyzed to determine whether they are violent felonies pursuant to 18 U.S.C. § 924(e). The motion is fully briefed and ripe for disposition.
Koeller was indicted on September 3, 2009, on one count of being a Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Koeller was arrested on the charge and made his initial appearance pursuant to a writ on September 10, 2009. At his arraignment, Koeller pled not guilty to the offense. On February 19, 2010, Koeller entered a guilty plea before this Court. During that plea, Koeller admitted that he had been convicted of the following three crimes:
(1) On November 29, 2004, in the Circuit Court of Cape Girardeau County, Missouri, in Case Number 04G9-CR01668, for the felony of Second Degree Burglary;
(2) On November 29, 2004, in the Circuit Court of Cape Girardeau County, Missouri, in Case Number 04G9-CR01385, for the felony of Second Degree Burglary; and
(3) On November 29, 2004, in the Circuit Court of Cape Girardeau County, Missouri, in Case Number 02CR737312, for the felony of Second Degree Burglary.
Koeller also admitted that, on July 8, 2009, he was in possession of a handgun that was manufactured in a location other than the State of Missouri and that the handgun affected interstate commerce. This court set a sentencing hearing for May 14, 2010.
After Koeller's guilty plea, a Presentence Investigation Report (P.S.R.) was prepared by United States Probation Officer Sherry A. Persinger-Miller. That report recommended that Koeller be classified as an Armed Career Criminal pursuant to U.S.S.G., § 4B1.4 and 18 U.S.C. 924(e). Koeller's Total Offense Level was set at 30, due to this classification. His minimum term of imprisonment was 180 months, again pursuant to the statute.
The sentencing hearing was held on May 14, 2010. Koeller was sentenced to a term of imprisonment of 180 months, followed by three years of supervised release. Koeller was also ordered to pay a special assessment of $100.00.
On May 26, 2010, the Government filed a motion in Koeller's case, seeking a downward departure. That motion was granted on June 9, 2010. Koeller was re-sentenced to a term of imprisonment of 120 months. Koeller did not appeal his conviction or sentence.
Need For Evidentiary Hearing And Burden Of Proof.
28 U.S.C. § 2255 provides in pertinent part:
Unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief, the court ...