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Jones v. United States

United States District Court, E.D. Missouri, Southeastern Division

March 29, 2017

ROBERT LEE JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner's motion to Vacate, Set Aside or Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255, wherein he asserts Johnson v. United States, 135 S.Ct. 2551 (2015) is applicable. The United States of America has responded to the motion. For the reasons set forth below the Motion will be denied.

         Facts and Background

         On October 9, 2007, Petitioner entered a plea of guilty to the offense of Distribution of Five Grams or More of Cocaine Base in violation of 21 U.S.C. § 841(a). After a Presentence Investigation Report was prepared and provided to the court, Petitioner was found to be a career offender and was sentenced to a within-Guidelines term of imprisonment of 188 months.

         The Presentence Investigation Report found Petitioner to be a career offender under U.S.S.G. § 4B1.1(a), resulting in a Total Offense Level of 31. The convictions that were classified as career offender predicates were: (1) a crime of violence conviction for Second Degree Burglary; (2) a crime of violence conviction for First Degree Burglary; (3) a controlled substance offense of Possession of a Controlled Substance With the Intent to Distribute; and (4) a controlled substance offense of Possession of a Controlled Substance With the Intent to Distribute. The Criminal History Category was VI since he was classified as a career offender and the resulting sentencing range was 188 to 235 months.

         Petitioner's Claim

         Petitioner claims that he is entitled to relief under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). He argues that his convictions for burglary were both improperly classified as a “crime of violence” and that he should not have been sentenced as a career offender.

         Discussion

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that the residual clause in the definition of a “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally vague. The Supreme Court has since determined that Johnson announced a new substantive rule of constitutional law that applies retroactively on collateral review in cases involving ACCA-enhanced sentences. United States v. Welch, 136 S.Ct. 1257 (2016). However, the Court's holding in Welch that Johnson applies retroactively in ACCA cases on collateral review does not govern the separate question of whether Johnson applies retroactively to claims based on the Sentencing Guidelines.

         Title 18, United States Code, Section § 922(g)(1) provides that a person who has been previously convicted of a felony is prohibited from possessing a firearm or ammunition that has affected interstate commerce. Any person who unlawfully possesses a firearm in violation of this section is subject to a term of imprisonment of up to ten years. 18 U.S.C. § 924(d). However, the ACCA provides that any defendant convicted in federal court of being a felon in possession of firearms and/or ammunition and who has three prior felony convictions for violent felonies and/or serious drug offenses must receive an enhanced punishment of a maximum of life and a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e).

         A “violent felony” is defined as:

         (B) the term “violent felony” means 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 potentialrisk of physical injury to another. 18 U.S.C. ...

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