United States District Court, W.D. Missouri, Western Division
JOSEPH J. WRIGHT, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 11-CR-00060-ODS-1
ORDER AND OPINION GRANTING PETITIONER'S MOTION TO
VACATE SENTENCE UNDER 28 U.S.C. § 2255
D. SMITH, SENIOR JUDGE
is pro se Petitioner Joseph Wright's
(Petitioner) Motion to Vacate Judgment and Sentence in
Accordance to 28 U.S.C. § 2255. Doc. #1. Petitioner
seeks to be resentenced pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the Armed
Career Criminal Act's (“ACCA”) residual
clause is unconstitutional. The Government contends
Petitioner's sentence is still proper under other
provisions of the ACCA. Doc. #12. For the reasons set forth
below, the Court grants Petitioner's motion.
11, 2011, Petitioner pled guilty to one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Ordinarily, that offense carries a maximum
punishment of ten years' imprisonment. 18 U.S.C. §
924(a)(2). However, the ACCA requires a minimum sentence of
fifteen years if a person violating 18 U.S.C. § 922(g)
has at least three prior convictions for a “serious
drug offense” or a “violent felony.” 18
U.S.C. § 922(e)(1). A “violent felony” is
defined as a felony that “(i) has as an element the
use, attempted use, or threatened use of physical force
against the person of another; or (ii) burglary, arson, or
extortion, involves the use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B) (emphasis added). The italicized portion
of the definition constitutes the “residual
clause” held unconstitutional in Johnson.
presentence investigation report (“PSR”) was
prepared after Petitioner pled guilty. The PSR found
Petitioner had four convictions qualifying him for an ACCA
enhanced sentence. Specifically, Petitioner had convictions
for distribution of crack cocaine,  attempted burglary, and two
convictions for Missouri second-degree burglary.
Petitioner's first conviction for second-degree burglary
occurred in 1978 while a different version of the Missouri
second-degree burglary statute was in effect, but his second
conviction occurred in 1979 under the current version of the
Missouri statute. Because Petitioner had at least three
qualifying ACCA predicate offenses, he was sentenced to 180
months' imprisonment on August 12, 2011.
asserts his two second-degree burglary convictions do not
qualify as predicate offenses and he is not subject to the
ACCA's enhanced sentencing provisions. The Government
concedes Petitioner's conviction for attempted burglary
no longer qualifies as a predicate offense. See Doc.
#12, at 5; United States v. Reid, 769 F.3d 990, 995
(8th Cir. 2014) (stating “[Defendant's] conviction
for attempted second degree burglary in Missouri does not
constitute a “violent felony” under §
924(e).”). Therefore, because his conviction for
distribution of crack cocaine remains an ACCA qualifying
offense, Petitioner remains an armed career criminal if both
of his prior second-degree burglary convictions qualify as
“violent felon[ies]” under the ACCA, but does not
if these second-degree burglary convictions no longer qualify
under the Supreme Court's decision in Johnson.
prisoner…claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States…or that the
sentence was in excess of the maximum authorized by
law…may move the court which imposed the sentence to
vacate, set aside or correct the sentence.” 18 U.S.C.
§ 2255(a). The Court first finds Petitioner's motion
to vacate was timely because it was filed within one year of
the Supreme Court's decision in Johnson. See 28
U.S.C. § 2255(f)(3). The Court also finds, based upon
Welch v. United States, 136 S.Ct. 1257 (2016), that
Johnson applies retroactively.
ACCA defines the term “violent felony” to include
any felony, whether state or federal, that “is
burglary, arson, or extortion.” 18 U.S.C. §
924(e)(2)(B)(ii). A prior crime qualifies as an ACCA
predicate “if, but only if, its elements are the same
as, or narrower than, those of the generic offense.”
Mathis v. United States, 136 S.Ct. 2243, 2247
(2015). “That means as to burglary - the offense
relevant in this case - that Congress meant a crime
‘contain[ing] the following elements: an unlawful or
unprivileged entry into…a building or other structure,
with intent to commit a crime.'” Id. at
2248 (quoting Taylor v. U.S., 495 U.S. 575, 598
(1990)). “[I]f the crime of conviction covers any more
conduct than the generic offense, then it is not an ACCA
‘burglary' - even if the defendant's actual
conduct (i.e., the facts of the crime) fits within the
generic offense's boundaries.” Id.
determine whether a prior conviction is for generic burglary
(or other listed crime) courts apply what is known as the
categorical approach: They focus solely on whether the
elements of the crime of conviction sufficiently match the
elements of generic burglary, while ignoring the particular
facts of the case.” Id. at 2248. The Court
must distinguish between elements and facts. Id.
Elements are “things the prosecution must prove to
sustain a conviction” and are “what the jury must
find beyond a reasonable doubt to convict the
defendant.” Id. (citations and internal
quotations omitted). Facts, on the other hand, are
“extraneous to the crime's legal
requirements” and “have no legal effect [or]
consequence.” Id. (citations omitted).
Mathis, the Supreme Court examined Iowa's
burglary statute, which lists multiple, alternative means of
satisfying one of its elements - to wit, the place where a
burglary can occur. Id. at 2248, 2250. Generic
offense of burglary requires unlawful entry into a
“building or other structure.” Id.
Iowa's statute, however, reaches a broader range of
places where a burglary can occur: “any building,
structure [or] land, water, or air vehicle.”
Id. at 2250 (quoting Iowa Code § 702.12
(2013)). These listed locations are not “alternative
elements, ” but are “alternative ways of
satisfying a single locational element.” Id.
(citations omitted). The Supreme Court found the Iowa
burglary statute was overbroad for the purposes of an ACCA
enhancement because the elements of Iowa's burglary law
were broader than those of generic burglary. Id. at
Supreme Court noted the threshold inquiry - elements or means
- may be resolved easily by the statute on its face or when a
state court definitely answers the question. Id. at
2256. If state law does not provide a clear answer, a court
may look to a limited number of documents, such as the
indictment, jury instructions, or plea agreement and colloquy
to determine what crime - and the elements of the crime - of
which the defendant was convicted. Id. at 2249. In
Mathis, the Court's analysis was straightforward
because the Iowa Supreme Court found the listed premises in
Iowa's burglary law provided alternative methods of
committing the offense. Id. at 2256 (citing
State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)).
Unfortunately, neither the parties nor the Court has located
a Missouri case finding Missouri's burglary statute's
listed premises are elements or means. Thus, the Court must
examine the burglary statute at issue.
Missouri law, “a person commits the crime of burglary
in the second degree when he knowingly enters unlawfully or
knowingly remains unlawfully in a building or inhabitable
structure for the purpose of committing a crime
therein.'” Mo. Rev. Stat. § 569.170.1 (2007).
“Building” is not statutorily defined.
“Inhabitable structure” includes a “ship,
trailer, sleeping car, airplane, or other vehicle or
structure” where a person lives or carries on business;
where people assemble for purposes of business, education,
religion, government, entertainment, or public
transportation; or is used for overnight accommodation. Mo.
Rev. Stat. § 569.010(2) (2007). A vehicle or structure
is inhabitable regardless of whether a person is present.
Id. Missouri's burglary statute, much like
Iowa's burglary ...