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Arender v. United States

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

April 3, 2017




         This matter is before the Court on Petitioner James Andrew Arender's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, based on Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague.[1] The government opposes Petitioner's motion and argues that Johnson does not affect Petitioner's sentence because Petitioner's prior convictions do not fall under the ACCA's residual clause. The Court agrees and will therefore deny Petitioner's motion.


         On June 4, 2013, Petitioner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After the plea, the United States Probation Office issued a presentence investigation report (“PSR”), which stated that Petitioner had the following prior felony convictions for offenses qualifying as violent felonies under the ACCA: (1) aggravated burglary in Tennessee in 2003, (2) aggravated assault in Tennessee in 2006, and (3) second-degree burglary in Missouri in 2008. On October 10, 2013, Petitioner filed an objection to the PSR, contending that his Tennessee conviction for aggravated assault was not a violent felony under the ACCA.

         On October 22, 2013, following a sentencing hearing, the Court overruled Petitioner's objection, adopted the PSR, and sentenced Petitioner as an armed career criminal to 180 months in prison and a two-year term of supervised release. Petitioner appealed, and on June 20, 2014, the Eighth Circuit affirmed, holding that Petitioner's Tennessee aggravated assault conviction was a violent felony under the ACCA because it “ha[d] as an element the threatened use of physical force against another person, capable of causing pain or injury.” United States v. Arender, 560 F. App'x 648, 649 (8th Cir. 2014).

         Petitioner now moves to vacate, set aside, or correct his sentence, arguing that, in light of Johnson, his prior convictions for Tennessee aggravated burglary and Missouri second-degree burglary no longer qualify as predicate offenses under the ACCA.[2] Petitioner does not challenge the classification of his Tennessee aggravated assault conviction as a predicate offense under the ACCA. The government responds that both burglary convictions remain violent felonies under a different clause of the ACCA-the “enumerated offenses clause”-which was unaffected by Johnson.[3]


         In order to prevail on a § 2255 motion involving an ACCA conviction, “the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA.” Givens v. United States, No. 4:16-CV-1143 CAS, 2016 WL 7242162, at *2 (E.D. Mo. Dec. 15, 2016) (citations omitted).

         As noted above, the ACCA increases the prison term for a person convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), to a minimum of 15 years in prison if the person has had three or more previous convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” 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[.]

18 U.S.C. § 924(e)(2)(B) (emphasis added).

         The italicized language is the “residual clause” invalidated by Johnson, in a rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). But the remaining clauses, including subsection (i) (the “elements clause”) and the first part of subsection (ii) (the “enumerated offenses clause”) are still effective. Johnson, 135 S.Ct. at 2563 (“Today's decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA's] definition of a violent felony.”).

         To determine whether a prior burglary conviction is a violent felony under the ACCA's enumerated offenses clause, courts must apply the “categorical approach.” Mathis, 136 S.Ct. at 2247-48. Specifically, courts must compare the elements of the statute under which the criminal defendant was convicted with the “generic” definition of burglary set forth in Taylor v. United States, 495 U.S. 575, 598-99 (1990). Descamps, 133 S.Ct. at 2283. Taylor defines “generic” burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598. “[I]f the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA ‘burglary'-even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries.” Mathis, 136 S.Ct. at 2248.

         Many state burglary statutes are phrased alternatively, with some alternatives defined more broadly than generic burglary. Courts faced with such an over-inclusive statute must first decide whether the statute is divisible. To do this, “Mathis explained that . . . the court must determine whether the listed alternatives are elements of different crimes or factual means of satisfying a single element of a single crime.” United States v. McArthur, No. 14-3335, 2017 WL 744032, at *6-*7 (8th Cir. Feb. 23, 2017). “Elements are the things the prosecution must prove to sustain a conviction, ” whereas “[m]eans are how a given defendant actually perpetrated the crime.” United States v. Lamb, 847 F.3d 928, 931 (8th Cir. 2017) (citing Mathis, 136 S.Ct. at 2248, 2251). “To distinguish between elements and means, federal sentencing courts should look at authoritative sources of state law such as a state court decision that definitively answers the question, or the statute's text, ” and “[i]f necessary, the court may peek at the record of the prior conviction, but only to determine if the statutory alternatives are elements or means.” Id.

         If the alternatives are elements, the statute is “divisible, ” and the court may apply a “modified categorical approach, ” by which the court should “review the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction, and then compare that element (along with all others) to those of the generic crime.” Mathis, 136 S.Ct. at 2256. But if the alternatives are means, then the statute is indivisible, and the court is limited to the categorical approach, “looking to the elements of the offense as defined in the statute of conviction rather than to the facts underlying the conviction.” United States v. Parrow, 844 F.3d 801, 802 (8th Cir. 2016).

         At issue in Mathis was Iowa's burglary statute, which criminalized burglary of an “occupied structure, ” defined in a separate section of the statute as “any building, structure, . . ., land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying business or other activity therein, or for the storage or safekeeping of anything of value, . . . whether or not a person is actually present.” Iowa Code § 702.12 (cited by Mathis, 136 S.Ct. at 2250). The Supreme Court was primarily concerned with whether this statute was divisible, and concluded that it was not because it listed alternative means of satisfying “a single locational element, ” rather than alternative elements. Mathis, 136 S.Ct. at 2251. But the Supreme Court also found, and all parties agreed, that the Iowa statute's inclusion of land, water or air vehicles covered more conduct than generic burglary. Id. at 2251.

         Missouri ...

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