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Johnson v. United States

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

November 3, 2016

WILLIE JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          NANETTE K. LAUGHREY United States District Judge.

         Petitioner 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.

         I. Background

         On 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 felony was:

[A]ny crime punishable by imprisonment for a term exceeding one year…that-
(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 another.

§ 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 offenses” clause.

         Johnson's 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.

         Petitioner 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].

         II. Discussion

         A. Must the Court first determine whether Petitioner's sentence was enhanced under the residual clause?

         The 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.).

         The 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 ...


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