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Holman v. United States

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

June 6, 2017

ROBERT A. HOLMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Movant 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.

         Discussion

         The 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 another.

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.

         In 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.

         The 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. 520680.
• A 1989 conviction for Robbery Second Degree. Circuit Court for St. Louis County, Docket No. 90CR96.

         Holman 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.

         The 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 ...


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