United States District Court, E.D. Missouri, Eastern Division
E . JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion and amended motion
of Robert Wilcox to vacate, set aside, or correct sentence,
pursuant to 28 U.S.C. § 2255. The United States has
filed a response in opposition.
January 28, 2010, Wilcox pled guilty to two counts of
possessing a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g). Wilcox's prior felony convictions
included (1) burglary second degree of a building, in
violation of Mo. Rev. Stat. § 569.170; (2) aggravated
robbery with a firearm, in violation of Tex. Penal Code Ann.
§ 29.03(a)(2); (3) assault second degree, in violation
of Mo. Rev. Stat. § 560.011. Based on these convictions,
Wilcox was found to be an armed career criminal, making him
subject to a mandatory minimum 15-year sentence of
imprisonment. See 18 U.S.C. § 924(e)(1). On
December 6, 2010, Wilcox was sentenced to concurrent terms of
188 months' imprisonment.
asserts that he can no longer be deemed an armed career
criminal because his prior conviction for burglary second
degree no longer qualifies as a violent felony under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
Thus, he argues, he does not have the requisite number of
predicate felony convictions to justify the enhanced sentence
under the ACCA. In support of his claim, Wilcox relies on two
recent decisions by the Supreme Court.
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, 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague. The ACCA
enhances the punishment for firearms offenses under 18 U.S.C.
§ 922(g) when the defendant has at least three prior
convictions for a serious drug offense or a “violent
felony.” The term “violent felony” is
defined in the ACCA as felony offense that “(1) 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 the 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 “otherwise involves” language of the
ACCA is the residual clause that the Supreme Court found
unconstitutional. Johnson, 135 S.Ct. at 2563.
Further, the Court made clear that its decision did not
implicate the enumerated offenses of burglary, arson,
extortion, and use of explosives. Id.
(“Today's decision does not call into question
application of the Act to the four enumerated offenses, or
the remainder of the Act's definition of a violent
following year, in Mathis v. United States, _U.S._,
136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the Court addressed
the issue of determining whether a defendant's prior
conviction qualifies as one of the enumerated offenses under
the ACCA. The Court ruled that a prior conviction does not
qualify as the generic form of an enumerated offense 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. Thus, the
Court held that Mathis's Iowa burglary conviction was not
a predicate offense under the ACCA, because the elements of
the state's burglary statute were broader than the
elements of the enumerated offense of generic burglary.
burglary second degree conviction was based on Mo. Rev. Stat.
§ 569.170.1 which provides that “a person commits
the crime of burglary in the second degree when he knowingly
enters unlawfully or knowingly remains unlawfully in a
building or inhabitable structure for the purpose of
committing a crime therein.” The term
“inhabitable structure” is defined to include
“a ship, trailer, sleeping car, airplane, or other
vehicle or structure” where people live or conduct
business; where they assemble for business, education,
religious, governmental or entertainment purposes; public
transportation; or a structure used of overnight
accommodation. Mo. Rev. Stat. 569.010.2 (2007). In the wake
of the Johnson and Mathis decisions, the
Eighth Circuit has addressed whether burglary second degree
of a building qualifies as a violent felony for purposes of
United States v Sykes, 844 F.3d 712 (8th Cir. 2016),
the court of appeals determined that the Missouri statute
“contains at least two alternative elements:
burglary ‘of a building' and burglary of ‘an
inhabitable structure, ' separated in the text by the
disjunctive ‘or'.” Id. at 715
[quoting Mo. Rev. Stat. § 569.170]. Because the
statute listed the elements in the alternative, the court
applied the modified categorical approach approved in
Mathis and determined that Sykes' prior
conviction was for burglary of a building. Id.
[citing Mathis, 136 S.Ct. at 2249 (when elements of
offense are listed in the alternative, courts may look to
documents, such as indictment, plea agreement, or jury
instructions “to determine what crime, with what
elements, a defendant was convicted of.”)]. The court
determined that second- degree burglary of a building is an
offense that “conforms to the elements of a generic
burglary as promulgated in Taylor [v. United
States, 495 U.S. 602 (1990)]: (i) unlawful entry or
remaining in (ii) a building or structure (iii) with the
intent to commit a crime.” Id. [citing
Taylor, 495 U.S. at 598]. The court further
ruled that “because burglary of ‘a building'
describes an element of second-degree burglary rather than a
means, our decision does not run afoul of
Mathis.” Id. Thus, the court held
that the Missouri offense of burglary second degree of a
building constitutes a violent felony under the ACCA.
Id. at 716. The Eighth Circuit reaffirmed this
holding in United States v. Naylor, 2017 WL 1163645
at *1 (8th Cir. 2017).
instant case, Wilcox's conviction for second degree
burglary of a building clearly qualifies as generic
burglary-an enumerated offense in the ACCA. The residual
clause invalidated by Johnson is inapplicable and
Wilcox is not entitled to relief based on Mathis.
Court concludes that the motions to vacate and the files and
records of this case conclusively show that Wilcox is not
entitled to relief under 28 U.S.C. § 2255. Therefore,
the motion and amended will be denied without a hearing.
See Engelen v. United States,68 F.3d 238, 240 (8th
Cir. 1995). Additionally, the Court finds that Wilcox has not
made a substantial showing of the denial of a ...