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Hardman v. United States

United States District Court, W.D. Missouri, Western Division

March 7, 2016

RONNIE L. HARDMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent

Page 1145

[Copyrighted Material Omitted]

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          For Ronnie L. Hardman, Petitioner: FPD, LEAD ATTORNEY, Federal Public Defender, Kansas City, MO; Anita L Burns, Federal Public Defender's Office - KCMO, Kansas City, MO.

         For USA, Respondent: Phillip Eugene Porter, LEAD ATTORNEY, U.S. Attorney's Office, Kansas City, MO.

Page 1147

         ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

         GREG KAYS, CHIEF UNITED STATES DISTRICT JUDGE.

         When sentencing Movant Ronnie L. Hardman (" Hardman" ) for being a felon in possession of a firearm, the Court found that he had a past Missouri state conviction for burglary. As required by the Armed Career Criminal Act (" ACCA" ), the Court gave him a higher sentence than he otherwise would have received.

         Hardman has now filed a motion to vacate his sentence under 28 U.S.C. § 2255 (Doc. 1) against Respondent (" the Government" ). He argues that in light of a recent Supreme Court case, his burglary conviction no longer subjects him to ACCA enhancement, so the Court should vacate his sentence.

         The Court holds that Hardman's burglary conviction is not a " burglary" conviction as used in the ACCA. Although this result may seem counterintuitive, for the reasons explained below, the motion is GRANTED and Hardman's sentence is VACATED.

         Background

         In his federal criminal case, Hardman pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g), 924(a)(2). While that crime usually carries a maximum prison sentence of ten years, a defendant faces an enhanced sentence--fifteen years to life imprisonment--if he has three previous convictions that qualify under the ACCA. Id. § 924(e)(1).

         Prior to Hardman's sentencing, the U.S. Probation and Pretrial Services Office generated a presentence investigation report (" PSR" ). The report writer concluded that Hardman had at least three prior felony convictions. Two were for sale of a controlled substance, each in February 2000. The third was a 2008 conviction for burglary in the second degree, as charged in an information filed in the Circuit Court of Jackson County, Missouri. That information, to which he pled guilty, alleged that

the defendant, Ronnie L. Hardman[], in violation of Section 569.170, RSMo, committed the Class C Felony of Burglary in the Second Degree, punishable upon conviction under Sections 558.011 and 560.011, RSMo, in that on or about the 5th day of October, 2007, in the County of Jackson, State of Missouri, the defendant acting alone or purposefully in concert with another, knowingly entered unlawfully in an inhabitable structure, located at 2615 Jackson Avenue, and owned by Daniel Salinas for the purpose of committing Stealing therein.

(Crim. Doc. 33-1 at 1) (boldface removed).

         The PSR elaborated on the 2008 burglary conviction, " According to the probable

Page 1148

cause statement, on October 6, 2007, an individual contacted the police department as his home had been burglarized. The victim reported that a window in his laundry room was pushed in and was leaning up against the wall. . . . [Hardman] was interviewed by the police [and] eventually admitted to assisting an individual he identified as 'BG,' by pushing in the window." (Crim. Doc. 20 at 10). The referenced probable cause statement does not appear outside the PSR. Hardman did not object to the PSR's recitation of the probable cause statement.

         At the sentencing hearing in 2012, the Court found that these three convictions fell under the ACCA, though it did not identify which specific provisions of the ACCA applied. Finding Hardman to be an armed career criminal, the Court sentenced him to the mandatory minimum sentence of 180 months' imprisonment. Hardman appealed his sentence on issues unrelated to the instant motion, unsuccessfully. United States v. Hardman, 489 Fed.Appx. 139 (8th Cir. 2012).

         Discussion

         Hardman concedes that his two controlled-substance convictions qualify under the ACCA, but argues that his 2008 second-degree burglary conviction no longer does because the applicable part of the ACCA was invalidated after his sentencing. Without a third ACCA conviction, he argues, he was improperly sentenced and must be resentenced. See 28 U.S.C. § 2255(a), (b). The Government responds that despite recent changes in the law, Hardman still warrants the armed career criminal enhancement because his burglary conviction is captured by a different part of the ACCA.

         A district court may vacate, set aside, or correct a federal sentence if " the sentence was in excess of the maximum authorized by law." Id. § 2255(a). In an ACCA case like this, 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. See Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970) (" The petitioner bears the burden of proof upon each ground presented for relief in a Section 2255 proceeding." ); United States v. Thornton, 766 F.3d 875, 878 (8th Cir. 2014) (requiring the Government to prove at sentencing, by a preponderance of the evidence, that the defendant pled guilty to a qualifying ACCA offense).

         I. The Court must employ the modified categorical approach to determine whether Hardmanwas convicted of an ...


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