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Jones v. United States

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

February 13, 2017

ORTEZ JONES, 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 Ortez Jones' 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 January 16, 2008, movant was indicted on one count of being a previously-convicted felon in possession of a firearm and an Armed Career Criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See United States v. Jones, No. 4:08-CR-26 CAS (E.D. Mo.) On January 28, 2008, the Federal Public Defender was appointed to represent movant. Ultimately, movant opted to plead guilty.

         The Court ordered the preparation of a presentence investigation report (“PSR”) by the U.S. Probation Office. The PSR concluded that movant was an Armed Career Criminal, due to his prior convictions for two counts of robbery second degree, stealing a motor vehicle, and two counts of domestic assault second degree. PSR at ¶ 22 (Doc. 34 in Case No. 4:08-CR-26 CAS). The Court reluctantly concluded that movant was an Armed Career Criminal based on the robbery and domestic assault and sentenced him to 180 months in prison, the statutory mandatory minimum sentence.[1] Movant's sentence was affirmed on direct appeal. See United States v. Jones, 574 F.3d 546 (8th Cir. 2009). On October 25, 2010, movant filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, which the Court denied in all respects on February 9, 2011. Jones v. United States, 4:10-CV-2037 CAS (E.D. Mo.).

         On October 20, 2016, movant was granted authorization by the Eighth Circuit Court of Appeals to file a second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Jones v. United States, No. 16-2357 (8th Cir. Oct. 20, 2016). In the instant motion, movant alleges that under Johnson, the four predicate violent felony convictions no longer qualify him as an armed career offender.

         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, 191 F.Supp.3d 989, 992-93 (W.D. Mo. 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 two 2001 Missouri convictions for second-degree robbery - incurred at the age of sixteen - and two 2005 Missouri convictions for domestic assault second degree 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 for several reasons: (1) the Supreme Court's Johnson decision does not apply to movant's claims because movant's status as an armed career offender does not rest on the ACCA's residual clause, in that movant's robbery convictions were classified as violent felonies under the elements/use of force clause of the ACCA, not the residual clause; (2) movant's claims are not cognizable in a successive habeas action because they are not based on a new rule of constitutional law as required by 28 U.S.C. § 2255(h)(2), and instead are based on a statutory interpretation case, Johnson v. United States, 130 S.Ct. 1265, 1269 (2010) (“Johnson I”); and (3) even if the Court were to reach the merits of movant's claim, the Eighth Circuit's decision in United States v. Bell, 840 F.3d 963 (8th Cir. 2016), which held that a defendant's Missouri conviction for second-degree robbery was not a crime of violence under the Sentencing Guidelines, was wrongly decided.[3]

         A. The ACCA

         Movant's claim for relief relies upon the Supreme Court's 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. Movant's Robbery Convictions Were Not “Elements/Use of Force” Convictions

         The government contends, without citation to any support, that movant's second-degree robbery convictions were “elements/use of force” convictions and not residual clause violent felonies. The Court has reviewed the indictment, the presentence report, and the sentencing transcript in the underlying criminal case. There is no mention in any of these documents as to the specific basis for movant's sentence under the ACCA. This is not surprising, as “[n]othing in the law requires a judge to specify which clause of § 924(c) . . . it relied upon in imposing a sentence.” In re Chance, 831 F.3d 1335, 1340 (11th Cir. 2016). At the time of movant's sentencing there was no need to distinguish between the different clauses of the ACCA, and no need to invoke any specific clause when the Court found that movant qualified as an armed career criminal. Givens v. United States, 2016 WL 7242162, at *4 (E.D. Mo. Dec. ...


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