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Small v. United States

United States District Court, W.D. Missouri, Western Division

September 2, 2016

MARCEL SMALL, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 04-CR-00372-ODS-1



         Pending is Petitioner Marcel Small's Amended Motion to Correct Sentence under 28 U.S.C. § 2255. Doc. #3. 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. #6. For the reasons stated below, the Court grants Petitioner's motion.

         I. BACKGROUND

         On April 7, 2005, 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 three prior convictions for 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.

         A presentence investigation report (“PSR”) was prepared after Petitioner pled guilty. The PSR found Petitioner had three convictions, two for second-degree burglary and one for second-degree robbery, qualifying him for an ACCA enhanced sentence. Because Petitioner had three qualifying ACCA predicate offenses, he was sentenced to 188 months' imprisonment on July 15, 2005. In light of Johnson, Petitioner asserts his prior conviction for second-degree burglary of an inhabitable structure and second-degree robbery no longer qualify as predicate offenses and he is not subject to the ACCA's enhanced sentencing provisions.[1]


         “A 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.


         The 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. United States, 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.

         “To 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).

         In 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 2251, 2257.

         The 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.

         Under 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 statute, lists a range of locations satisfying an element of the crime. Based upon the face of the statute, these listed locations appear to be alternative ways of satisfying the location element of the crime of burglary in Missouri.

         Whether the alternative locations are elements or means is further evinced by the Missouri approved charge and model jury instructions, which are approved by the Missouri Supreme Court and are mandatory. The Missouri Approved Charge for second-degree burglary directs the charging officer to choose either “building” or “inhabitable ...

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