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Bevly v. United States

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

November 23, 2016

MARLIN BEVLY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner Marlin Bevly's Motion to Correct Sentence under 28 U.S.C. § 2255 [ECF No. 1].

         I. BACKGROUND

         On February 21, 2008, Petitioner Marlin Bevly (“Petitioner”) was indicted for the federal offense of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On May 23, 2008, Petitioner pled guilty to the charge.

         To determine Petitioner's sentence, the Court used the 2007 Guidelines Manual and calculated Petitioner's base offense level under § 2K2.1(a)(4)(A) at 20. Four levels were added pursuant to § 2K2.1(b)(6), because Petitioner possessed the firearm in connection with another felony offense. He received a ten-level increase as an Armed Career Criminal, because he had a conviction with six separate counts of Robbery in the First Degree, and two counts of Robbery in the Second Degree. He received a three-level reduction for acceptance of responsibility. His total offense level was 31, and his criminal history category was VI. The guideline range was 188 to 235 months. The statutory minimum of imprisonment was fifteen years, and the maximum term was life, with a term of supervised release not to exceed five years.

         On August 7, 2008, the Court sentenced Petitioner to 180 months imprisonment, and a five-year term of supervised release. After the United States Supreme Court decided Johnson v. United States, 135 S.Ct. 2251 (2015), Petitioner filed the present motion to correct his sentence asserting he is no longer an armed career criminal in light of the Supreme Court's decision in Johnson.

         II. ANALYSIS

         Petitioner asserts the Missouri offenses of Robbery in the First Degree and Robbery in the Second Degree no longer qualify as violent felonies for purposes of the Armed Career Criminal Act (“ACCA”), because they no longer qualify as crimes of violence under the “force clause” of the ACCA. The United States argues Petitioner does not qualify for Johnson relief, because he was not sentenced under the residual clause of the ACCA, which was deemed unconstitutional by the Supreme Court in Johnson, and even if he was eligible, Robbery in the First Degree and Second Degree qualify as violent felonies.

         A. Johnson Relief

         In Johnson, the Supreme Court determined the residual clause in the definition of “violent felony” in the ACCA was unconstitutionally vague. 135 S.Ct. 2551 (2015). In United States v. Welch, the Supreme Court ruled Johnson was a substantive new rule, retroactive on collateral review. 136 S.Ct. 1257 (2016). Therefore, any defendants who were determined to be Armed Career Criminals under the residual clause of the ACCA may seek collateral review of their sentences within one year of the Supreme Court's Johnson decision. The United States asserts Petitioner does not qualify for collateral review under Johnson because he was not sentenced under the residual clause.

         The Court cannot determine whether Petitioner was sentenced under the residual clause of the ACCA. The presentence report filed at the time of his sentencing does not indicate under which clause he received the ACCA enhancement. The Statement of Reasons adopts the presentence report without change. In a situation where the Court cannot determine under what clause the prior offenses were determined to be predicate offenses, the better approach is for the Court to find relief is available, because the Court may have relied on the unconstitutional residual clause. See Johnson v. United States, No. 4:16-CV-00649-NKL, 2016 WL 6542860 at *2 (W.D. Mo. Nov. 3, 2016). Therefore, the Court will determine whether Petitioner's prior convictions qualify as predicate offenses under the remaining clauses of the ACCA.

         B. Robbery in the First Degree

         The ACCA defines “violent felony” as:

. . . any crime punishable by imprisonment for a term exceeding one year, . . . that (i) has an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary, arson, extortion, involves use of explosives, or otherwise involves conduct ...

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