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Byrd v. United States

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

April 11, 2017

DANNY LEE BYRD, 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 January 17, 2012, Petitioner entered a plea of guilty to the offense of Felon in Possession of a Firearm. A Presentence Investigation Report was prepared and provided to the court. Petitioner appeared for sentencing on April 17, 2012 and was found to be an Armed Career Criminal with a Total Offense Level of 31 and a Criminal History of VI. He was sentenced to a term of imprisonment of 180 months. The Presentence Investigation Report found Petitioner to have a Sentencing Guideline range of 188 to 235 months. There were four violent felony convictions identified in the P.S.R.:

(1) On February 10, 2004, Byrd was convicted of the felony of Second Degree Assault in the Circuit Court of Mississippi County, Missouri, in Case Number 03CR746664-01;
(2) On July 27, 2005, Byrd was convicted of the felony of Missouri Second Degree Burglary in the Circuit Court of Mississippi County, Missouri, in Case Number 05MI-CR00431-01;
(3) On July 27, 2005, Byrd was convicted of the felony of Second Degree Burglary in the Circuit Court of Mississippi County, Missouri, in Case Number 05MI-CR00292-01; and
(4) On September 2, 2008, Byrd was convicted of the felony of Resisting Arrest by Creating a Substantial Risk of Serious Physical Injury or Death in the Circuit Court of Butler County, Missouri, in Case Number 08BT-CR0255-01.

         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). His suggestion is that Johnson should be applied retroactively to his case to reduce his sentence.

         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. Unlike the ACCA, a Guidelines classification does not “prescribe[] punishment.” Welch, 136 S.Ct. at 1268.

         Here, Petitioner's classification as an ACC does not rest on the residual clause of the ACCA because his conviction for Missouri Second Degree Assault and two convictions for Missouri Second Degree Burglary were all classified as violent felonies under the elements clause and enumerated crimes of the definition of a violent felony, not the residual clause definition of a violent felony.

         The Armed Career Criminal Act provides that a 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 committed on occasions separate from one another 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), also known as the Armed Career Criminal Act or “ACCA”. Petitioner was sentenced under 18 U.S.C. § ...


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