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Brooks v. United States

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

February 27, 2017

KERRY BROOKS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. No. 16-03466-CV-S-ODS

          ORDER AND OPINION DENYING PETITIONER'S AMENDED MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Pending is Petitioner Kerry Brooks's Amended Motion to Correct Sentence under 28 U.S.C. § 2255. Doc. #8. Petitioner seeks to be resentenced pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), which held the Armed Career Criminal Act's (“ACCA”) residual clause unconstitutional.[1] For the reasons stated below, the Court denies Petitioner's motion.

         I. BACKGROUND

         On April 8, 2004, Petitioner pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Ordinarily, that offense carries a maximum punishment of ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, the 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.” 18 U.S.C. § 922(e)(1). A “violent felony” is defined as a felony that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) burglary, arson, or extortion, involves the 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 portion of the definition constitutes the “residual clause” held unconstitutional in Johnson.

         A presentence investigation report (“PSR”) was prepared after Petitioner pled guilty. Although the PSR did not specify which convictions supported an ACCA enhanced sentence, the PSR found Petitioner had at least three qualifying convictions. The PSR indicated Petitioner a prior conviction for second degree robbery, a conviction for attempted robbery in the first degree, and two convictions for distribution of a controlled substance. On September 14, 2004, the Court sentenced Petitioner to 210 months' imprisonment.

         Petitioner asserts his conviction for attempted robbery in the first degree does not qualify as a predicate offense, and he is not subject to the ACCA's enhanced sentencing provisions. Petitioner concedes his convictions for distribution of a controlled substance are ACCA qualifying offenses. See 18 U.S.C § 924(e)(2)(A); Doc. #8, at 2. The Government concedes Petitioner's second degree robbery conviction does not qualify as an ACCA predicate offense under Eighth Circuit precedent in United States v. Bell, 840 F.3d 963 (8th Cir. 2016).[2] See Doc. #9, at 1. The Court must decide whether Petitioner's conviction for attempted robbery in the first degree is an ACCA qualifying offense.

         II. DISCUSSION

         A “violent felony” is defined as a felony that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court defines “physical force” as “violent force - that is, force capable of causing physical pain or injury to another person.” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (Johnson I)).

         “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)).

         Under Missouri law, a person commits robbery in the first degree [W]hen he forcibly steals property and in the course thereof he, or another participant in the crime,

(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or ...

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