United States District Court, W.D. Missouri, Southern Division
JERRY N. BROWN, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 05-3166-CR-S-ODS
ORDER DENYING PETITIONER'S MOTION TO ALTER OR
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT
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).
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).
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).
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.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.
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.
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.
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.
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)).
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