United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the supplemental motion of
Bobby Joe Kemp to vacate, set aside, or correct sentence,
pursuant to 28 U.S.C. § 2255. The United States has
filed a response.
20, 2013, Kemp pled guilty to conspiracy to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C.
§ 846 (Count I) and possessing a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g) (Count II).
Because of the quantity of methamphetamine, the penalties for
the offense in Count I included a mandatory minimum sentence
of 10 years' imprisonment. See 21 U.S.C. §
841(b)(1)(A). Kemp had three prior Missouri convictions for
burglary second degree. Based on the prior felony
convictions, Kemp was found to be a career offender with
respect to Count I (see U.S.S.G. §4B1.1) and an
armed career criminal with respect to Count II (see
18 U.S.C. §924(e)(1) and U.S.S.G. §4B1.4(a)). As a
result of the armed career criminal designation, Kemp faced a
mandatory minimum sentence of 15 years' imprisonment for
the firearm offense. 18 U.S.C. §924(e)(1). On November
26, 2013, Kemp was sentenced to concurrent terms of 210
supplemental motion, Kemp seeks relief based on Mathis v.
United States, U.S., 136 S.Ct. 2243, 195 L.Ed.2d 604
(2016), in which the Supreme Court held that a prior
conviction does not qualify as the generic form of a
predicate violent felony listed in the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), when the elements of the
statute on which the prior conviction is based are broader
than the elements of the generic form of the offense.
Mathis, 136 S, Ct. at 2257. In in
its response, the United States concedes that in light of the
Mathis decision, Kemp's conviction for second
degree burglary of a building or inhabitable structure does
not qualify as generic burglary under the ACCA. Therefore,
Kemp does not have the requisite number of violent felony
convictions to support the armed career criminal designation
with respect to Count II. The mandatory minimum sentence of
15 years' imprisonment under § 924(e)(1) no longer
applies. Instead, the maximum sentence of imprisonment for
the felon in possession offense is ten years. 18 U.S.C.
§ 924(a)(2). Kemp must be re-sentenced on Count II
because the 210-month sentence he received exceeds the
statutory maximum for the offense.
Mathis involved the ACCA, the decision no
application to the 210-month sentence of imprisonment Kemp
received on Count I. As discussed above, Kemp was designated
a career offender under U.S.S.G. 4B1.1(a) with respect to the
methamphetamine offense in Count I. Section 4B1.1(a) provides
that a defendant is a career offender if (1) he was at least
18 years old when he committed the offense of conviction; (2)
the offense of conviction is either a crime of violence or a
controlled substance offense; and (3) he has at least two
prior felony convictions for either a crime of violence or a
controlled substance offense. As relevant here, the term
“crime of violence” in U.S.S.G. §4B1.2(a) is
defined as a felony offense that “has as an element the
use, attempted use, or threatened use of physical force
against the person of another” or that is murder,
voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm as defined in 26 U.S.C.
§ 5845(a) or explosive material as defined in 18 U.S.C.
Johnson v. United States, U.S., 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015), the Supreme Court held that the residual
clause of the ACCA, which defined “violent
felony” as an offense that “otherwise involves
conduct that presents a serious potential risk of physical
injury to another, ” was unconstitutional. The decision
in Johnson is inapplicable in this case, because the
Supreme Court has held that the Sentencing Guidelines are not
subject to a void-for-vagueness challenge under the Due
Process Clause and, more specifically, that the “crime
of violence” clause of U.S.S.G. 4B1.2(a) is not void
for vagueness. Beckles v. United States, U.S., 137
S.Ct. 886, 895 (2017). Accordingly, Kemp is not entitled to
be re-sentenced on Count I.
reasons set forth above, the judgment entered on Count II
will be vacated, and Kemp will be re-sentenced on that count
without application of the ACCA.
IT IS HEREBY ORDERED that the supplemental motion of Bobby
Joe Kemp to vacate, set aside, or correct sentence [Doc. # 9]
is granted in part and denied in part.
FURTHER ORDERED that a copy of this Memorandum and Order
shall be filed in the underlying criminal case, United
States v. Bobby Joe Kemp, No. 1:13-CR-00022 (CEJ).
order vacating the judgment on Count II will be ...