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Brown v. United States

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

February 22, 2017

JERRY N. BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 05-3166-CR-S-ODS

          ORDER DENYING PETITIONER'S MOTION TO ALTER OR AMEND

          ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Pursuant to the parties' supplemental briefing related to Petitioner's Motion to Alter or Amend (Doc. #12), the Court finds Petitioner is not entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015).

         I. BACKGROUND

         A. Criminal Proceeding

         In August 2007, Petitioner entered a plea of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Ordinarily, the offense of being a felon in possession of a firearm carries a maximum punishment of ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act (“ACCA”) requires a minimum sentence of fifteen years if a person violating 18 U.S.C. § 922(g) has three prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 922(e)(1).

         A presentence investigation report (“PSR”) was prepared, finding Petitioner had three qualifying prior convictions of burglary, manufacturing marijuana, and first degree sexual abuse that triggered a minimum sentence of fifteen years under the ACCA's “violent felony” provision. Based upon the ACCA enhancement, Petitioner faced a statutory mandatory minimum sentence of fifteen years. 18 U.S.C. § 922(e)(1). In December 2007, Petitioner was sentenced to 180 months' imprisonment and five years of supervised release. On appeal, the Eighth Circuit affirmed Petitioner's sentencing. United States v. Brown, 323 F.App'x 479 (8th Cir. 2009).

         B. Habeas Proceeding

         Petitioner, initially proceeding pro se, instituted this matter by filing a motion to correct sentence under 28 U.S.C. § 2255, which was amended once he was represented by counsel. Doc. #1; Doc. #5. Petitioner sought resentencing pursuant to Johnson v. United States, which held the ACCA residual clause was unconstitutional.[1]The only argument before this Court when it decided Petitioner's amended motion to correct his sentence was whether Petitioner's Missouri conviction for sexual assault in the first degree was a predicate offense under ACCA. Doc. #5. The Court determined that particular issue was decided by the Eighth Circuit on direct appeal. Case No. 05-CR-31660-ODS-1 (Doc. #79) (citing United States v. Brown, 323 F.App'x 479 (8th Cir. 2009)). Petitioner was barred from religitating the same issue in a motion to vacate. Id.

         On September 6, 2016, Petitioner, through his counsel, filed a motion to alter or amend the Court's judgment. Doc. #12. Thereafter, Petitioner, on his own, filed a “supplement” to his counsel's motion, asking the Court to consider whether his “Missouri burglary” conviction was an ACCA qualifying offense. Doc. #13. Respondent's opposition to the motion to alter or amend did not address the argument raised by Petitioner's supplement. Doc. #15. Likewise, in the reply, Petitioner's counsel did not address Petitioner's pro se argument but offered to provide supplemental briefing on the issue. Doc. #16.

         On October 17, 2016, the Court denied Petitioner's motion to alter or amend. Doc. #17. But the Court noted Petitioner's pro se argument that his burglary conviction did not qualify as an ACCA predicate offense. Id., at 2. In the interest of achieving a just result, the Court directed the parties to file supplemental briefs addressing whether Petitioner's Missouri burglary conviction qualifies as an ACCA predicate offense. Id. On November 2, 2016, both parties filed their briefs and supporting documents. Doc. #18; Doc. #19. On November 30, 2016, the Court directed the parties to submit additional briefing, noting the parties predicated their analyses on the current Missouri burglary statutes, not the statute under which Petitioner was convicted. Doc. #20. On December 21, 2016, the parties submitted their supplemental briefs. Doc. #21; Doc. #22.

         On January 10, 2017, the Court noted no documentation associated with Petitioner's burglary conviction was filed, and directed the Probation Office to file said documentation. Doc. #23. On January 18, 2017, the Information, Complaint, Sentence and Judgment, and other related documents were filed. Doc. #24. The Court invited the parties to provide supplemental briefing based upon the filed documentation. Doc. #23. On February 8, 2017, the parties filed their supplemental briefs. Docs. #25, 26. Whether Petitioner's Missouri burglary conviction is an ACCA predicate offense is now ripe for consideration.

         II. DISCUSSION

         “To determine whether a past conviction qualifies as a violent felony, we apply the ‘categorical approach, ' under which we ‘look only to the fact of conviction and the statutory definition of the prior offense.” United States v. Sykes, 844 F.3d 712, 715 (8th Cir. 2016) (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)). If the statute lists elements in the alternative, the court may apply the modified categorical approach, under which the court may look at a limited class of documents to determine “what crime, with that elements, a defendant was convicted of.” Id. (quoting Mathis v. United States, 136 S.Ct. 2243, 2249 (2016)).

         Burglary is one of the enumerated violent felonies under 18 U.S.C. § 924(e)(2)(B). In 1977, Missouri had several burglary statutes. The Complaint charged Petitioner, on or about December 8, 1977, “did wilfully, unlawfully, feloniously, and burglariously, forcibly break and enter a building to wit: the Oregon County R-IV School District high school building…with the felonious and burglarious intent to steal, take, and carry away certain goods, wares, merchandise, or personal property then and there kept in said ...


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