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Maxwell v. United States

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

February 21, 2017

PRESTON E. MAXWELL, 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 Preston Maxwell's “Successive Petition to Vacate Sentence under 28 U.S.C. § 2255 Based on Johnson v. U.S.” [ECF No. 1].

         I. BACKGROUND

         On August 15, 2002, Petitioner Preston Maxwell (“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 March 11, 2003, a jury found Petitioner guilty.

         To determine Petitioner's sentence, the Court used the 2002 Guidelines Manual and calculated Petitioner's base offense level under § 2K2.1(a)(4)(A) at 24. Because he was determined to be an Armed Career Criminal, due to his prior felony convictions for aggravated battery in Illinois in 1993, burglary in Illinois in 1998, and aggravated battery in Illinois in 1996, his base offense level increased to 33. His total offense level was 33, and his criminal history category was VI. The guideline range was 235 to 293 months. The statutory minimum of imprisonment was fifteen years, and the maximum term was life.

         On June 19, 2003, the Court sentenced Petitioner to 235 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 his conviction for burglary in Illinois in 1998 no longer qualifies as a violent felony for purposes of the Armed Career Criminal Act (“ACCA”), because it no longer qualifies as a crime of violence under the “enumerated 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, he cannot apply Descamps and Mathis to his claim because they are not retroactive, and even if he was eligible, his burglary conviction qualifies as a violent felony.

         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. Subsequently, 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, 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 cannot prove he was 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, and the Statement of Reasons adopts the presentence report without change. In past cases, the Court held, in situations where the Court could not determine under what clause the prior offenses were determined to be predicate offenses, the better approach was to find relief was available, because the Court may have relied on the unconstitutional residual clause. See Bevly v. United States, No. 4:16CV00965 ERW, 2016 WL 6893815 (E.D. Mo. Nov. 23, 2016) (J. Webber); Givens v. United States, No. 4:16-CV-1143 CAS, 2016 WL 7242162 (E.D. Mo. Dec. 15, 2016) (J. Shaw); Johnson v. United States, No. 4:16-CV-00649-NKL, 2016 WL 6542860 at *2 (W.D. Mo. Nov. 3, 2016). The United States cites two appellate decisions which state a district court must deny a petition, and may not reach the merits of the petition, where the petitioner cannot prove he was sentenced under the residual clause of the ACCA. See In re Moore, 830 F.3d 1268 (11th Cir. 2016); Stanley v. United States, 827 F.3d 562 (7th Cir. 2016). However, the Court does not find the reasoning of the Eleventh and Seventh Circuits, in the respective opinions, to be persuasive.

         The Eleventh Circuit's decision in Moore, was published on July 27, 2016. On August 2, 2016, a different panel on the Eleventh Circuit decided In re Chance, directly contradicting the decision in Moore. 831 F.3d 1335, 1339 (11th 2016). In Chance, the panel stated the language in Moore, concerning a district court's denial of a petition, if the petitioner is unable to prove he was sentenced under the residual clause, is dicta and need not be followed. Id. Further, the panel determined a petitioner does not have to prove he was sentenced under the residual clause for his petition to be decided on the merits. Id. The panel stated, if the district court denied a petitioner's petition on this basis, the district court would be required to ignore Supreme Court precedent determined after Johnson. Id. Further, the panel found there was, and is, nothing in the law which requires a district judge to state the clause on which it relied on at sentencing, so judges have not made it clear under which clause the defendant was being sentenced. Id. Therefore, two similarly situated defendants, one who was told at sentencing he was being sentenced under the residual clause, and one who was not, would not be treated the same and would receive different final sentences. Id. The panel concluded by stating a petitioner need only show the ACCA may no longer authorize his sentence. Id.

         The Court finds the second panel decision by the Eleventh Circuit to be persuasive. Further, this complies with the Court's prior rulings in similar cases. Because there is no way to determine whether Petitioner was sentenced under the residual clause of the ACCA, but realizing he may have been sentenced under the residual clause, the Court will analyze the merits of his Petition.

         B. Requirements of 28 U.S.C. ยงยง ...


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