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Darden v. United States

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

January 17, 2017

DORNELL DARDEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This matter is before the Court on movant Dornell Darden's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, based on Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the Armed Career Criminal Act's (“ACCA”) residual clause is unconstitutional. The government opposes the motion, arguing that Johnson does not affect movant's sentence and he remains an armed career criminal. For the reasons below, the Court will grant movant's motion.

         I. Background

         On February 23, 2006, movant was charged in an indictment with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Darden, 4:06-CR-122 CAS (E.D. Mo.) (Doc. 1). On April 25, 2006, movant pled guilty to the offense.

         A presentence investigation report (“PSR”) was prepared after movant's plea. The PSR stated that movant met the Armed Career Criminal provisions of United States Sentencing Guideline (“U.S.S.G.”) § 4B1.4 because he had at least three prior convictions for violent felonies. The PSR did not specify which of movant's convictions were for violent felonies. Movant's prior convictions included Missouri felony offenses of (1) assault in the second degree, [1] (2) armed criminal action, (3) tampering in the first degree, (4) robbery in the second degree, and (5) attempted robbery in the second degree. On August 15, 2006, the Court sentenced movant to the mandatory minimum term of 180 months imprisonment and a three-year period of supervised release.

         On June 17, 2016, movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that under Johnson his three predicate violent felony convictions no longer qualify him as an armed career offender. This is movant's first § 2255 motion. The government agrees that movant's motion is timely if he can demonstrate his sentence was imposed under the ACCA's residual clause. (Govt. Resp. at 3.)

         II. Legal Standard

         A district court may vacate, set aside, or correct a federal sentence if “the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). Movant bears the burden to show he is entitled to relief. Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970). In a case involving an ACCA conviction such as this one, “the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA.” Hardman v. United States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016); see also Hardman v. United States, __ F.Supp.3d __, 2016 WL 3702798, at *2-3 (W.D. Mo. June 3, 2016) (denying government's motion for reconsideration on the issue of the burden of proof).

         III. Discussion

         In the instant motion, movant asserts that his 1993 Missouri conviction for second-degree robbery and his 1994 Missouri conviction for attempted second-degree robbery no longer qualify as predicate offenses now that Johnson has declared the ACCA's residual clause unconstitutional.[2] The government responds that despite Johnson, movant is still subject to the armed career criminal enhancement because his status as an armed career offender does not rest on the ACCA's residual clause. The government asserts that movant's robbery and attempted robbery convictions were classified as violent felonies under the elements clause of the ACCA, not the residual clause. That is, movant's prior convictions have as elements “the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). The government states that because movant's prior convictions were violent felonies under the elements clause, and not the residual clause, Johnson is inapplicable.

         Movant replies that the record contains no indication under which clause the Court found the second-degree robbery and attempted second-degree robbery convictions qualified as ACCA violent felonies. Regardless, under recent Eighth Circuit precedent in United States v. Bell, 840 F.3d 963 (8th Cir. 2016), movant states neither conviction qualifies as a violent felony under the elements clause of the ACCA.

         A. The ACCA

         Movant's claim for relief relies upon the Supreme Court's recent decision in Johnson that the residual clause of the ACCA is unconstitutional. Ordinarily, the crime of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) is subject to a maximum punishment of fifteen years. 18 U.S.C. § 924(a). The ACCA enhances the sentence and requires a fifteen-year minimum sentence if a person who violates § 922(g) has three previous convictions for a “violent felony.” The statute defines violent felony as any felony 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 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 language, commonly known as the “residual clause, ” is the portion of the statute invalidated by Johnson, see 135 S.Ct. at 2556-57. The remaining clauses, § 924(e)(2)(B)(i) (the “elements clause”), and the first clause of § 924(e)(2)(B)(ii) (the “enumerated offenses clause”), are still effective. Id. at 2563. Recently, the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

         B. Missouri's Crimes of Second-Degree Robbery and Attempted Second-Degree Robbery Do Not Qualify as Violent ...


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