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Robinson v. United States

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

August 29, 2016

MICHAEL G. ROBINSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This 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.

         For the 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.

         Furthermore, 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.

         To the 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 petition.

         PROCEDURAL HISTORY

         A. Underlying Conviction

         On 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)

         Following 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)

         Robinson was determined to be an ACC based on the following four felony convictions:

(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 Career Criminal.

         On 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.

         B. Previous Post-Conviction Motion.

         Robinson has not filed any previous petitions under 28 U.S.C. § 2255; therefore, this Petition is considered a “first” habeas petition.

         CURRENT ...


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