United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the parties’ Joint Motion
for Immediate Relief under 28 U.S.C. § 2255 (Doc. 7).
For the following reasons, the Court will grant the joint
motion and vacate Movant Steven McKinney’s sentence.
31, 2002, McKinney pled guilty to one count of being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). United States v. McKinney,
4:02-cr-56-JAR-1 (E.D. Mo.) (Crim. Docket # 61). On November
22, 2002, the Honorable Donald J. Stohr sentenced McKinney to
180 months in prison and five years of supervised release,
after finding that he had three previous convictions for
violent felonies that supported the imposition of an enhanced
sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e) (Judgment
(Crim. Doc. 77); PSR (Crim. Doc. 101.1)). As relevant,
McKinney had two prior convictions for Missouri second-degree
burglary, and one prior conviction for Missouri attempted
second-degree burglary (PSR; Resentencing Report (Crim. Doc.
61)). The United States Court of Appeals for the Eighth
Circuit affirmed McKinney’s conviction and sentence on
direct appeal. United States v. McKinney, 328 F.3d
993 (2003) (8th Cir. 2003). Notably, the Eighth Circuit
expressly relied on the ACCA’s residual clause to
conclude that McKinney’s attempted second-degree
burglary conviction was a “violent felony” for
purposes of enhancing his sentence under the ACCA.
Id. at 995.
time of his July 2002 felon-in-possession conviction,
McKinney had been serving a term of supervised release for a
1994 conviction for being a felon in possession of a firearm.
United States v. McKinney, No. 4:94-cr-269-JCH-1
(E.D. Mo. Feb. 24, 1995). On December 6, 2002, the Honorable
Jean C. Hamilton determined that McKinney had violated the
conditions of his supervised by release by, inter alia,
possessing of a firearm and committing another federal crime.
Id. (Dec. 6, 2002). Judge Hamilton revoked
McKinney’s supervised release, imposed a revocation
sentence of 24 months in prison, and ordered that the
revocation sentence run consecutively to the 180-month
sentence Judge Stohr imposed in McKinney’s 2002
felon-in-possession case. Id. (Jan. 9, 2003).
10, 2016, the Eighth Circuit granted McKinney authorization
to file this successive motion under 28 U.S.C. § 2255.
McKinney v. United States, No. 16-1677 (8th Cir. May
10, 2016) (unpublished order). On June 7, 2016, McKinney
filed a pro se motion to vacate, set aside, or correct his
sentence (Doc. 1), which counsel thereafter amended (Doc. 5).
The parties now jointly request that the Court grant McKinney
relief under 28 U.S.C. § 2255, as they agree that he is
entitled to relief under Johnson v. United States,
135 S.Ct. 2551 (2015) and Welch v. United States,
136 S.Ct. 1257 (2016) (Doc. 7).
sentence for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) is generally no more
than ten years in prison. 18 U.S.C. § 924(a)(2). If
however, the defendant has three prior convictions for a
“violent felony, ” the ACCA increases the
sentence in felon-in-possession cases to a mandatory minimum
of fifteen years, and maximum of life, in prison. 18 U.S.C.
ACCA defines a violent felony to include any felony 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, 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 for
Johnson, the Supreme Court held that imposing an
increased sentence under the residual clause of the ACCA
violates due process. 135 S.Ct. at 2558, 2563. Because
Johnson announced a new substantive rule, it applies
retroactively to cases on collateral review. Welch v.
United States, 136 S.Ct. 1257, 1264-65 (2016). The
parties agree that, in light of Johnson, McKinney
does not have three prior convictions for a “violent
felony, ” as that term is defined in the ACCA; and that
his ACCA-enhanced sentence is illegal, as it exceeds the
unenhanced, ten-year maximum term of imprisonment otherwise
authorized for his felon-in-possession conviction.
Court concludes that McKinney’s sentence is
unconstitutional because it exceeds the statutorily
authorized sentence for his offense of conviction. Sun
Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011)
(en banc) (sentence imposed in excess of statutory authority
is illegal). The Court agrees with the parties that, in light
of Johnson and Welch, McKinney’s
attempted second-degree burglary conviction can no longer be
considered a “violent felony” under the ACCA. The
Court thus concludes that McKinney has no more than two prior
convictions for a “violent felony” for purposes
of applying the ACCA to his July 2002 felon-in-possession
conviction. The Court will thus grant the joint motion for
relief. See 28 U.S.C. § 2255(a) (federal
prisoner claiming right to be released on basis that sentence
exceeds the maximum authorized by law may move to vacate, set
aside, or correct sentence). McKinney has waived any right he
may have to personally appear before the undersigned for
purposes of resentencing (Crim. Doc. 103). The Court will
proceed to resentence McKinney by entering an amended
judgment in his criminal case. Accordingly, IT IS HEREBY
ORDERED that the parties’ joint motion to ...