United States District Court, W.D. Missouri, Western Division
NANETTE K. LAUGHREY United States District Judge.
Willie Johnson moves under 28 U.S.C. § 2255 to vacate
his current sentence. [Doc. 1]. For the reasons discussed
below, the motion to vacate is granted.
February 4, 2004, Petitioner Willie Johnson was convicted of
being a felon in possession of a firearm contrary to 18
U.S.C. §§ 922(g)(1) and 924(a)(2). [Doc. 6, p.2]. A
conviction under § 922(g)(1) normally carries a
statutory maximum sentence of ten years imprisonment.
However, if the defendant has previously been convicted of
three “violent felonies, ” the Armed Career
Criminal Act requires a mandatory minimum sentence of 15
years. At the time of Johnson's sentencing, a violent
[A]ny crime punishable by imprisonment for a term exceeding
(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, the use of
explosives, or otherwise involves conduct that present
a serious potential risk of physical injury to
§ 924(e)(2)(B) (emphasis added). The underlined
provision above is referred to as the “residual
clause” of the ACCA and the preceding phrase,
“burglary, arson, extortion, . . . the use of
explosives” is referred to as the “enumerated
conviction was for a violation of §922(g)(1). At the
time of his sentencing, he had at least three convictions for
second-degree burglary under Missouri law. He was sentenced
to 180 months.
now requests this Court “vacate his current sentence
and re-sentence him within or below the advisory guidelines
range of 51-63 months.” [Doc. 1, p. 1]. He argues that
he is entitled to this reduction because of the recent
Supreme Court opinion, Johnson v. United States, 135
S.Ct. 2551 (2015). The United States argues Petitioner is not
entitled to relief because even if the residual clause is
unconstitutional, Petitioner's burglary convictions
“qualified” under the enumerated offenses clause.
[Doc. 6, p. 1].
the Court first determine whether Petitioner's sentence
was enhanced under the residual clause?
government contends that “there can be little question
that this Court found under prevailing case law, that
Johnson's prior burglaries of ‘inhabitable
structures' constituted generic burglary under the
‘enumerated offenses clause.'” The
government's only authority for this statement is that
Eighth Circuit case law at the time of sentencing held that
“second-degree burglary qualified under the
‘enumerated felonies clause.'” [Doc. 6, p.
5]. However, it is equally probable that a court would rely
on the broader, residual clause, which would also avoid any
conflict between existing Supreme Court president and Eighth
Circuit precedent. See, e.g., United States v.
Cantrell, 530 F.3d 684, 694-96 (8th Cir. 2008)
(“[W]e need not analyze whether [Petitioner]'s
conviction constituted ‘burglary' as defined in
Taylor, because [Petitioner]'s offense was
clearly a ‘crime of violence'” under the
broader residual clause of the sentencing guidelines.).
better approach, however, is to find that where the
sentencing record is unclear, relief is available under these
circumstances if the court might have relied on the
unconstitutional residual clause. See, e.g.,
United States v. Ladwig, 2016 WL 3619640 (E.D. Wash.
June 28, 2016). The Ladwig opinion relied, by and
large, on the rule that “a general verdict must be set
aside if the jury was instructed that it could rely on any of
two or more independent grounds, and one of those grounds is
insufficient, because the verdict may have rested exclusively
on the insufficient ground.” Id. at *3 (citing
Zant v. Stephens, 462 U.S. 862, 881 (1983)). See
also O'Neal v. McAninch,513 U.S. 432 (1995);
United States v. Mendoza-Mesa, 421 F.3d 671, 672- 73
(8th Cir. 2005). The Ladwig court reasoned that
“[i]n the context of a potential deprivation of such a
critically important right, a ...