United States District Court, E.D. Missouri, Eastern Division
ROBERT A. HOLMAN, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
Robert A. Holman was convicted in 1997 of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g) and was sentenced under the Armed Career Criminal Act,
18 U.S.C. § 924(e)(1), which carries a fifteen-year
mandatory minimum sentence. Case No. 4:97CR396 CDP. His
advisory sentencing range under the United States Sentencing
Guidelines was 235-293 months, and I sentenced him to 264
months' imprisonment. After the United States Supreme
Court decided Johnson v. United States, 135 S.Ct.
2551 (2015), Holman sought and was granted leave to file a
successive Motion to Vacate, Set Aside or Correct Sentence
pursuant to 28 U.S.C. § 2255, which is before me now.
Holman argues that his prior Missouri convictions for
second-degree burglary and second-degree robbery do not
qualify as violent felonies, and that therefore he is not an
Armed Career Criminal.
Armed Career Criminal Act, 18 U.S.C. §924(e), increases
the maximum sentences in felon-in-possession cases from a
ten-year maximum to a fifteen-year mandatory minimum and a
maximum of life imprisonment if a defendant has three
previous convictions for a “violent felony or serious
drug offense.” The statutory definition of violent
felony includes any felony 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
18 U.S.C. § 924(e)(2)(B) (emphasis added). The
italicized portion set out above is referred to as the
residual clause, while the listed crimes of burglary, arson,
or extortion are often called the “enumerated”
crimes. Subsection (i) is referred to as the
“elements” or “force” clause.
Johnson v. United States, 135 S.Ct. 2551 (2015) the
Supreme Court held that the residual clause of the ACCA was
unconstitutionally vague. Holman argues here that he is
entitled to relief under Johnson because his prior
convictions under Missouri's second-degree burglary
statute were considered crimes of violence under the
now-invalidated residual clause of the ACCA. He also
challenges the classification of his conviction for
second-degree robbery as a crime of violence.
original Presentence Report in this case concluded that
Holman had three Missouri convictions that qualified as
violent felonies, making the ACCA applicable. The prior
convictions at issue here are:
• A 1981 conviction for Assault First Degree, Burglary
Second Degree, and Stealing. Circuit Court of St. Louis
County, Docket No. 456718.
• A 1984 conviction for Burglary Second Degree and
Stealing. Circuit Court of St. Louis County, Docket No.
• A 1989 conviction for Robbery Second Degree. Circuit
Court for St. Louis County, Docket No. 90CR96.
does not contest that his assault first degree conviction
qualifies as a violent felony, but he argues that the
burglary second and robbery second do not. Following the
procedures established by this District and as ordered by the
Court, the parties briefed the motion in this civil case and
the United States Probation Office filed a “Resentence
Report” in the criminal case. The Probation Office
concluded that Holman remained an Armed Career Criminal
because the robbery conviction qualified under the elements
or force clause and the burglary second convictions qualified
under the enumerated clause. The report concluded that the
guidelines range of 235-292 months had not changed. Holman
filed objections to that report.
relevant post-Johnson law regarding crimes of
violence has continued to evolve during the pendency of this
case. In United States v. Bell,840 F.3d 963 (8th
Cir. 2016), the Eighth Circuit held that a Missouri
conviction for second- degree robbery did not constitute a
crime of violence under United States Sentencing Guidelines
§ 2K2.1(a)(4)(A), because Missouri courts had sustained
convictions under the statute where the defendant's
conduct fell short of using force capable of causing physical
pain or injury. 840 F.3d at 966. In United States v.
Swopes,850 F.3d 979 (8th Cir 2016), the Court applied
Bell to a case brought under the ACCA, noting that
the operative text in the statute and the guidelines were the
same, and so a conviction under this statute does not qualify