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Mosley v. United States

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

February 8, 2017

ADRIAN MOSLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner Adrian Mosley's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, based on Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague.[1] The government opposes Petitioner's motion and argues that Johnson does not affect Petitioner's sentence because Petitioner's prior convictions do not fall under the ACCA's residual clause. The Court agrees and will therefore deny Petitioner's motion.

         BACKGROUND

         On February 10, 2011, Petitioner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After the plea, the United States Probation Office issued a presentence investigation report (“PSR”), which stated that Petitioner had the following prior federal convictions for offenses qualifying as violent felonies under the ACCA: (1) one count of attempted bank robbery in violation of 18 U.S.C. § 2113(d), which took place on August 12, 1996, (2) one count of use of a firearm during a crime of violence (the attempted bank robbery described above) in violation of 18 U.S.C. §924(c)(1), and (3) two counts of bank robbery in violation of 18 U.S.C. § 2113(d), which took place on July 1, 1996, and February 10, 1996, respectively.[2] The Court adopted the PSR and, on June 27, 2011, sentenced Petitioner as an armed career criminal to 108 months in prison, to run concurrently with the balance of the sentence Petitioner was serving on his bank robbery convictions, and a three-year term of supervised release.

         Petitioner now moves to vacate, set aside, or correct his sentence, arguing that, in light of Johnson, his prior federal convictions for bank robbery no longer qualify as violent felonies under the ACCA. The government responds that Petitioner's bank robbery convictions were classified as violent felonies under a different clause of the ACCA-known as the “elements clause”-unaffected by Johnson, and Petitioner was therefore properly sentenced.

         DISCUSSION

         In order to prevail on a § 2255 motion involving an ACCA conviction, “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.” Givens v. United States, No. 4:16-CV-1143 CAS, 2016 WL 7242162, at *2 (E.D. Mo. Dec. 15, 2016) (citations omitted).

         As noted above, the ACCA increases the prison term for a person convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), to a minimum of 15 years in prison if the person has had three or more previous convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as:

any 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 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 is the “residual clause” invalidated by Johnson, in a rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). But the remaining clauses, including subsection (i) (the “elements clause”) and the first part of subsection (ii) (the “enumerated offenses clause”) are still effective. Johnson, 135 S.Ct. at 2563 (“Today's decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA's] definition of a violent felony.”).

         The Court agrees with the government that because Petitioner's prior federal convictions for bank robbery are violent felonies under the elements clause of the ACCA, Johnson does not apply, and Petitioner is not entitled to relief. The elements of bank robbery under 18 U.S.C. § 2113 are that “1) the defendant took, or attempted to take, money belonging to, or in the custody, care, or possession of, a bank, credit union, or saving and loan association; (2) the money was taken ‘by force and violence, or by intimidation'; [and] (3) the deposits of the institution were federally insured.” United States v. McNeal, 818 F.3d 141, 152 (4th Cir. 2016) (citing 18 U.S.C. § 2113(a)). Armed bank robbery under § 2113(d) adds a fourth element, that “in ...


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