United States District Court, W.D. Missouri, Western Division
RONNIE L. HARDMAN, Movant,
UNITED STATES OF AMERICA, Respondent
[Copyrighted Material Omitted]
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.
USA, Respondent: Phillip Eugene Porter, LEAD ATTORNEY, U.S.
Attorney's Office, Kansas City, MO.
GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT
KAYS, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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
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.
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).
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
(Crim. Doc. 33-1 at 1) (boldface removed).
elaborated on the 2008 burglary conviction, " According
to the probable
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.
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).
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
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).
The Court must employ the modified categorical approach to
determine whether Hardmanwas convicted of