United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Jondrigus
Williams's Petition Pursuant to 28 U.S.C. § 2255
[ECF No. 1].
January 8, 2009, Petitioner Jondrigus Williams
(“Petitioner”) was indicted for the federal
offenses of knowingly and intentionally distributing ecstasy
in violation of 21 U.S.C. § 841(a)(1) (Count I),
possessing of a firearm in furtherance of a drug trafficking
crime in violation of 21 U.S.C. § 924(c)(1) (Count II),
knowingly and intentionally possessing with the intent to
distribute ecstasy in violation of 21 U.S.C. § 841(a)(1)
(Count III), and being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) (Count IV). On March
25, 2009, Petitioner pled guilty to Counts II, III, and IV.
At the sentencing hearing on November 6, 2009, Counts I and
II were dismissed.
determine Petitioner's sentence, the Court used the 2008
Guidelines Manual. It was determined Petitioner was an Armed
Career Criminal, because of his three convictions for
Burglary Second Degree in St. Louis County, Missouri. He
received a three-level reduction for acceptance of
responsibility, making his total offense level 30 and his
criminal history category VI. The guideline range was 180 to
210 months. The statutory minimum of imprisonment was fifteen
years, and the maximum term was life, with a term of
supervised release not to exceed five years. On November 6,
2009, the Court sentenced Petitioner to 180 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.
asserts the offense of second-degree burglary in Missouri
does not qualify as a violent felony for purposes of the
Armed Career Criminal Act (“ACCA”), because it is
not a crime of violence under the “force clause”
of the ACCA. The United States argues Petitioner does not
qualify for Johnson relief, because he cannot prove
he was sentenced under the residual clause of the ACCA;
therefore, whether his convictions qualify under the force
clause is immaterial.
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. As noted, the
United States asserts Petitioner does not qualify for
collateral review under Johnson because he cannot
prove he was sentenced under the residual clause.
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. This
Court has held, in situations where it cannot be determined
under what clause the prior offenses were 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.
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, to get relief, need only show the
ACCA may no longer authorize his sentence. Id.
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.
Second Degree Burglary
Petitioner qualifies as an Armed Career Criminal depends on
whether his prior convictions for second-degree burglary in
Missouri qualify as violent felonies under the ACCA. In
United States v. Bess, this Court determined
Missouri's statute for second-degree burglary no longer
qualified as a violent felony under the ACCA, because it was
indivisible and covered more conduct than the generic offense
of burglary. No. 4:15CR00021 ERW, 2016 WL 6476539 (E.D. Mo.
Nov. 2, 2016) (J. Webber); see also Givens v. United
States, No. 4:16CV1143 CAS, 2016 WL 7242162 (E.D. Mo.
Dec. 15, 2016) (J. Shaw). However, in United States ...