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Simpson v. United States

United States District Court, E.D. Missouri, Eastern Division

October 8, 2014



E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Christopher S. Simpson's ("Movant") Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1]. The Government has filed its Response to the Motion [ECF No. 11].


On March 2, 2010, Movant pleaded guilty to one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1)(a)(1) [Case 4:09CR00120 ERW, ECF No. 41]. Movant's presentence report ("PSR") determined Movant's criminal history points to be 22, establishing a criminal history category of VI [Case 4:09CR00120 ERW, ECF No. 43]. According to the PSR, Movant was considered an Armed Career Criminal pursuant to Section 4B1.4(a), as he had "three prior felony convictions for crimes of violence including: Robbery Second Degree, Aggravated Battery and Residential Burglary" [Case 4:09CR00120 ERW, ECF No. 43 at 6]. Movant's Total Offense Level was 30.

Movant's criminal history included felony convictions for: Robbery Second Degree (St. Louis, Missouri Circuit Court, No. 981-1503); Aggravated Battery (St. Clair County, Illinois Circuit Court, No. 00CF-414); Aggravated Unlawful Use of a Weapon (St. Clair County, Illinois Circuit Court, No. 00CF-1436); Residential Burglary (St. Clair County, Illinois Circuit Court, 01CF-802); Obstructing Justice (St. Clair County, Illinois Circuit Court, No. 00CF-530); and Domestic Battery, Subsequent Offense (St. Clair County, Illinois Circuit Court, No. 07CF-496). The PSR determined Movant was subject to the Armed Career Criminal Act ("ACCA") 18 § 924(e), and calculated the recommended sentencing range for Movant as 180 to 210 months [Case 4:09CR00120 ERW, ECF No. 43]. In an Addendum, the PSR stated, in response to objection by Movant, the probation office had decided not to include Movant's Domestic Battery conviction (No. 07CF-496) as a qualifying offense under the ACCA, because only three prior convictions were necessary. The Court sentenced Movant, as an Armed Career Criminal, a term of 180 months imprisonment [Case 4:09CR00120 ERW, ECF No. 42].

The ACCA imposes a mandatory fifteen-year prison term on an individual convicted of possession if that individual has "three previous convictions... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The career offender provision of the Sentencing Guidelines increases an adult defendant's offense level and criminal history if he has two prior felony convictions for crimes of violence or controlled substance offense. See U.S.S.G. § 4B1.1. A crime of violence is defined by the ACCA, and U.S.S.G. § 4B1.2(a), as an offense punishable by more than one year in 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 of a dwelling, 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). Clause (ii) is referred to by courts as ACCA's "residual clause

Movant appealed his sentence to the Eighth Circuit Court of Appeals, arguing this Court erred in enhancing his sentence under 18 U.S.C. § 924(e), on the basis of three prior convictions for violent felonies. [Case 4:09CR00120, ECF No. 56]. In its opinion, the Eighth Circuit noted this Court had concluded Movant had four such convictions, and Movant had conceded he had at the time of his plea. Nevertheless, in his appeal, Movant contended his Missouri conviction second-degree robbery did not qualify for the enhancement, because he was seventeen when he committed the offense. The Eighth Circuit rejected Movant's argument, stating:

While it is true that only certain convictions for juvenile delinquency can serve as predicate offenses under the ACCA, see 18 U.S.C. § 924(e)(2)(B), and Mr. Simpson's robbery conviction is not one of those, he was tried and convicted as an adult for that robbery. There is thus no occasion to doubt that this offense counted under § 924(e). See United States v. Nash, 627 F.3d 693, 695-96 (8th Cir. 2010), cert. denied, 131 S.Ct. 1837 (2011).

United States v. Simpson, 419 Fed.Appx. 691, 2011 WL 2473037 (8th Cir. 2011).

In his original § 2255 Motion, Movant claims his Illinois convictions for Aggravated Battery (St. Clair County, Illinois, No. 07CF49601), and for Domestic Battery Subsequent Offense (St. Clair County, Illinois, No. 07CF49602), rest on indivisible statutory provisions in 720 ILCS 5/12-3, and he contends Illinois decisions construing the terms of this statute establish they broadly cover conduct that both does, and does not, comprise the violent behavior element required by ACCA. Movant argues bodily harm is satisfied by mere bruising, as occurs by squeezing someone's arm, and the "insulting or provoking' element has been construed generally not to require violent behavior or risk of injury. Movant asserts, under Descamps v. United States, 133 S.Ct. 2276 (2013), and Tucker v. United States, 740 F.3d 1177 (8th Cir. 2014), this conviction fails to provide requisite predicates. Movant concedes he challenged his predicate convictions under ACCA and sentencing, but asserts he may bring his present challenge because the Descamps opinion did not issue until after his direct appeal was final. In his pro se ...

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