United States District Court, E.D. Missouri, Southeastern Division
MICHAEL G. ROBINSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on a motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence by Michael G.
Robinson, a person in federal custody. On June 9, 2015,
Robinson pled guilty before this Court to the offense of
felon in possession of a firearm and, on September 22, 2015,
this Court sentenced Robinson to the Bureau of Prisons for a
term of 120 months. Robinson's § 2255 motion is
fully briefed and ripe for disposition.
reasons set forth below, this Court will deny Robinson's
Petition. Robinson's conviction for Unlawful Use of a
Weapon by Exhibiting is an “elements” clause
violent felony and did not fall under the Armed Career
Criminal Act's “residual clause” definition
of a violent felony; therefore, the holding in
Johnson does not apply. The holding of
Johnson, invalidating the residual clause, has no
bearing on Robinson's status as an Armed Career Criminal.
Robinson was originally sentenced on November 10, 2015, well
after the decision in Johnson was announced in June,
2015. The holding in Johnson was well known to this
Court and all the attorneys before Robinson was originally
sentenced. Johnson did not benefit Robinson at his
original sentencing and does not benefit him now.
extent Robinson raises other challenges to the classification
of his assault conviction as a violent felony, those claims
are not based on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable, and therefore
Robinson failed to make the requisite showing under 28 U.S.C.
§ 2255 that he is entitled to relief under this habeas
April 9, 2015, a Grand Jury in the Eastern District of
Missouri, Southeastern Division, returned a one-count
indictment against Michael G. Robinson, charging him with
Felon in Possession of a Firearm in violation of 18 U.S.C.
§ 922(g)(1). (DCD 1, Case Number 1:15 CR 00050 SNLJ) On
June 9, 2015, Robinson appeared with his attorney and pled
guilty to the charge made in the Indictment pursuant to a
written plea agreement. (DCD 29)
the plea, a Presentence Investigation Report
(“P.S.R.”) was prepared which recommended that
Robinson be classified as an Armed Career Criminal
(“ACC”) under 18 U.S.C. § 924(e), otherwise
known as the Armed Career Criminal Act (“ACCA”).
The P.S.R. recognized four convictions of Robinson's that
were qualified as violent felonies or serious drug offenses
that were predicate convictions requiring Robinson to be
sentenced as an Armed Career Criminal. (P.S.R. ¶ 26)
(“. . . the defendant has at least three prior
convictions for a violent felony or serious drug offense, or
both, which were committed on different occasions. (Unlawful
Use of a Weapon - Exhibiting, Docket No.: 04F2-CR01034-01,
Possession of a Controlled Substance With Intent to Deliver,
Docket No.: 05F2-CR00119-01, and two counts of Distribution
of Cocaine Base, Docket No.: 1:07CR00065JCH) Therefore, the
defendant is an armed career criminal and subject to an
enhanced sentence under the provisions of 18 U.S.C. §
924(e).”) The PSR concluded that the Total Offense
Level was 30. (P.S.R. ¶ 26-29) Robinson's Criminal
History Category was IV and the resulting sentencing range
was 180 months. (P.S.R. ¶ 41, 72)
was determined to be an ACC based on the following four
(1) Robinson was convicted on January 4, 2005, of the felony
of Missouri Unlawful Use of a Weapon by Exhibiting in the
Circuit Court of Pemiscot County, Missouri, in Case Number
04F2-CR01034-01. (P.S.R. ¶ 32)
(2) Robinson was convicted on March 18, 2005, of the felony
of Missouri Possession of a Controlled Substance With the
Intent to Deliver in the Circuit Court of Pemiscot County,
Missouri, in Case Number 05F2-CR00119-01. (P.S.R. ¶ 33)
(3) Robinson was convicted on November 26, 2007, of the
felony of Distribution of Cocaine Base in the United States
District Court for the Eastern District of Missouri,
Southeastern Division, in Case Number 1:07 CR 00065 JCH.
(P.S.R. ¶ 36)
Robinson had other felony convictions, but those convictions
are not relevant to any discussion of whether he is an Armed
November 10, 2015, the Government filed a Motion for a
Downward Departure on the basis that Robinson had provided
substantial assistance to the Government pursuant to U.S.S.G.
§ 5K1.1. (DCD 40) On November 10, 2015, this Court
granted the Government's Motion for a Downward Departure,
found Robinson to be an Armed Career Criminal and sentenced
him to a term of imprisonment of 120 months. Robinson did not
appeal his conviction or sentence.
Previous Post-Conviction Motion.
has not filed any previous petitions under 28 U.S.C. §
2255; therefore, this Petition is considered a
“first” habeas petition.