United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
Duane McCoy brings a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255, arguing that under
the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), he is no longer subject
to an enhanced sentence under the Armed Career Criminal Act
(ACCA). See 18 U.S.C. § 924(e). The United
States Attorney argues McCoy is not entitled to
Johnson relief because his prior convictions remain
predicate ACCA convictions. Because McCoy still has three
predicate ACCA convictions, I will deny his motion.
2, 2013, McCoy pleaded guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g).
See United States v. Duane McCoy, Case No. 4:12 CR
416 RWS (E.D. Mo.). In McCoy's Presentence Investigation
Report (PSR), the United States Probation Office indicated
McCoy had three prior convictions for violent felonies that
made him subject to an enhanced sentence under the ACCA,
including, as relevant to this case, assault on a law
enforcement officer - first degree, Mo. Rev. Stat. §
565.081, and violence to an employee of the Department of
Corrections by an inmate, Mo. Rev. Stat. §
the ACCA, a defendant who violates 18 U.S.C. § 922(g)
and has three prior convictions for a violent felony is
subject to a 15-year mandatory minimum sentence. See
18 U.S.C. § 924(e). The term “violent
felony” is defined for ACCA purposes as “any
crime punishable by imprisonment for a term exceeding one
year” that “(i) has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” Id. § 924(e)(2)(B).
In its 2015 Johnson decision, the Supreme Court held
that imposing an increased sentence under the
“otherwise” clause of subsection ii (the
“residual clause”) violates due process.
See 135 S.Ct. at 2563.
McCoy's August 5, 2013 sentencing hearing, I adopted the
PSR, found McCoy qualified as an armed career criminal under
§ 924(e), and imposed a 180-month sentence. On April 22,
2016, McCoy filed a motion to vacate per Johnson,
and on June 23, 2016, he filed an amended motion to vacate.
In his petition, McCoy argues that post-Johnson, he
is no longer an armed career criminal because neither assault
on a law enforcement officer nor violence to an employee of
the Department of Corrections categorically qualifies as a
referred the matter to the United States Probation Office for
the Eastern District of Missouri to prepare a Resentencing
Report in response to McCoy's Johnson claims.
The Probation Office recommended no change to McCoy's
total offense level computation based on its conclusion that
he remained an armed career criminal. The U.S. Attorney filed
a statement of no objection to the Resentencing Report. McCoy
objected to the Resentencing Report, again arguing he does
not have three qualifying predicates because assault on a law
enforcement officer and violence to an employee of the
Department Of Corrections do not qualify as predicate
convictions. The Probation Office filed a final
Resentencing Report, maintaining its position that McCoy is
not entitled to relief under Johnson. The U.S.
Attorney filed its response to McCoy's § 2255
petition and McCoy filed a reply. The matter is now fully
of McCoy's challenged prior convictions are enumerated
offenses under 18 U.S.C. § 924(e)(2)(B)(ii). As a
result, to qualify as predicate convictions, both must have
as an element “the use, attempted use, or threatened
use of physical force against the person of another.”
Id. § 924(e)(2)(B)(i). “Physical force
‘means violent force-that is, force capable of
causing physical pain or injury to another
person.'” United States v. Jordan, 812
F.3d 1183, 1186 (8th Cir. 2016) (quoting Curtis Johnson
v. United States, 559 U.S. 133, 140 (2010)). I may only
consider the elements of the offense-not the underlying facts
of the conviction-to determine if a defendant's prior
conviction qualifies as a predicate conviction. See
Descamps v. United States, 133 S.Ct. 2276, 2293 (2013).
McCoy bears the burden of showing he is entitled to relief.
See Givens v. United States, 2016 WL 7242162, at *2
(E.D. Mo. Dec. 15, 2016).
of a Law Enforcement Officer - First Degree
person commits the crime of assault of a law enforcement
officer in the first degree under Missouri law “if such
person attempts to kill or knowingly causes or attempts to
cause serious physical injury to a law enforcement
officer.” Mo. Rev. Stat. § 565.081.1, repealed
by L. 2014 S.B. 491 § A, eff. Jan. 1,
2017.While the question of whether a conviction
under § 565.081 serves as a predicate ACCA conviction is
a question of federal law, I look to Missouri law to
determine the elements of the crime, as I am “bound by
the [Missouri] Supreme Court's interpretation of state
law, including its determination of the elements” of
state crimes. Curtis Johnson, 559 U.S. at 138;
see also Mathis v. United States, 136 S.Ct. 2243,
2250 (2016); United States v. Thomas, 838 F.3d 926,
930 n.3 (8th Cir. 2016) (per curiam) (“Although we are
not bound by Arkansas state courts' definition of
‘physical force' as that term is used in the
Guidelines, we are bound by their interpretation of what
[Ark. Code Ann.] § 5-13-201(a)(1) requires.”). To
the extent the Missouri Supreme Court has not addressed the
elements of § 565.081, I also look to decisions from the
intermediate state courts for guidance in interpreting
convict under § 565.081, the state must prove the
defendant knew or was aware that the person he injured or
attempted to kill or injure was a law enforcement officer.
State v. Reed, 402 S.W.3d 146, 150 (Mo.Ct.App.
2013). To convict for causing serious physical injury, the
state must prove the defendant acted knowingly and caused the
type of injury required by the statute, which is
“physical injury that creates a substantial risk of
death or that causes serious disfigurement or protracted loss
or impairment of the function of any part of the body.”
Mo. Rev. Stat. § 556.061(28) (2008); State v.
Ward, 273 S.W.3d 43, 46 (Mo.Ct.App. 2008). To convict
for attempting to kill or attempting to cause serious
physical injury, the state must prove “a very specific
intent . . . to accomplish that objective.”
Reed, 402 S.W.3d at 151; see also Ward, 273
S.W.3d at 46 (indicating the mens rea needed to
prove attempt is higher than that needed to convict the
defendant of the completed substantive offense).
has two elements: “(1) the defendant has the purpose to
commit the underlying offense, and (2) the doing of an act
which is a substantial step toward the commission of that
offense.” State v. Winthrow, 8 S.W.3d 75, 78
(Mo. banc 1999), modified on different grounds by State
v. Claycomb, 470 S.W.3d 358 (Mo. banc 2015).
“‘A “substantial step” is conduct
which is strongly corroborative of the firmness of the
actor's purpose to complete the commission of the
offense.'” Id. (quoting Mo. Rev. Stat.
§ 564.011). Intent for purposes of § 565.081 is
measured “by whether or not a reasonable juror might
have found that [the defendant's] conduct
strongly corroborated the firmness of his purpose to kill or
cause serious injury to [the intended victim(s)].”
Reed, 402 S.W.3d at 152 (alterations in original)
(quotation marks omitted).
first argues that a conviction for knowingly causing serious
physical injury does not qualify as an ACCA violent felony
because it is possible to cause serious physical injury
without the use, attempted use, or threatened use of violent
physical force. The Eighth Circuit has rejected this
argument. “‘[P]hysical force' means force
‘capable of causing physical pain or injury to another
person, ' [Curtis] Johnson, 559 U.S. at
140, and ‘it is impossible to cause bodily injury
without using force “capable of” producing that
result.'” United States v. Winston, 845
F.3d 876, 878 (8th Cir. 2017) (quoting United States v.
Castleman, 134 S.Ct. 1405, 1416-17 (2014) (Scalia, J.,
concurring)); see also United States v. Rice, 813
F.3d 704, 706 (8th Cir.) cert. denied, 137 S.Ct. 59
(2016); United States v. Headbird, 832 F.3d 844, 847
(8th Cir. 2016). “Serious physical injury” for
§ 565.081 purposes is “physical injury that
creates a substantial risk of death or that causes serious
disfigurement or protracted loss or impairment of the
function of any part of the body.” Mo. Rev. Stat.
§ 556.061(28) (2008). Because it is “impossible to
cause bodily injury without using force ‘capable
of' producing that result, ” in ...