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Byers v. United States

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

June 12, 2017

VINCE BYERS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on movant Vince Byers' motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, based on Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the Armed Career Criminal Act's[1] (“ACCA”) residual clause is unconstitutional. Movant asserts that his prior Missouri convictions for offering violence to an inmate and for second-degree assault are no longer violent felonies, and that he is not properly subject to an enhanced sentence under the ACCA. The government opposes the motion, arguing that Johnson does not affect movant's sentence and he remains an armed career criminal because his ACCA predicate offenses involved the use of force. For the reasons stated below, the Court will grant movant's motion in part and vacate his conviction.

         I. Background

         On June 27, 2008, a United States Magistrate Judge issued a criminal complaint against movant, charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). A single-count indictment charging movant with the same crime was filed on July 10, 2008. See United States v. Byers, 4:08-CR-416 CAS (E.D. Mo.) (Docs. 1, 7).

         Movant elected to proceed to trial, and after a three-day jury trial was found guilty of the crime charged on January 28, 2009. A presentence investigation report (“PSR”) was prepared, which stated that movant met the Armed Career Criminal provisions of United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.4 and was subject to an enhanced sentence under 18 U.S.C. § 924(e) based on three prior convictions for crimes of violence: Missouri felony offenses of (1) Attempted Burglary First Degree; (2) Assault First Degree, and (3) Assault Second Degree.[2] On April 16, 2009, the Court sentenced movant to the mandatory minimum term of 180 months and a two-year period of supervised release.

         Movant filed a direct appeal, but his conviction and sentence were upheld by the Eighth Circuit Court of Appeals. United States v. Byers, 636 F.3d 1023 (8th Cir. 2011). Movant filed a petition for writ of certiorari with the United States Supreme Court which was denied on November 4, 2010. Byers v. United States, No. 10-5740 (2010).

         Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on October 11, 2011. Byers v. United States, No. 4:11-CV-1765 CAS (E.D. Mo.). The Court denied the motion on January 24, 2014, and the Eighth Circuit denied movant's application for a certificate of appealability on May 29, 2014.

         After the Supreme Court decided Johnson, movant filed a petition with the Eighth Circuit for authorization to file a successive application under § 2255, which was granted on June 6, 2016. Byers v. United States, No. 16-2308 (8th Cir. June 6, 2016). Movant then filed the instant action.

         II. Legal Standard

         A district court may vacate, set aside, or correct a federal sentence if “the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). Movant bears the burden to show he is entitled to relief. Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970). In a case involving an ACCA conviction such as this one, “the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA.” Hardman v. United States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016); see also Hardman v. United States, 191 F.Supp.3d 989, 992-93 (W.D. Mo. 2016) (denying government's motion for reconsideration on the issue of the burden of proof).

         III. Discussion

         A. The Armed Career Criminal Act

         Movant's claim for relief relies on the interaction of recent Supreme Court cases interpreting the ACCA. Ordinarily, the crime of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g) is subject to a maximum punishment of fifteen years. 18 U.S.C. § 924(a). The ACCA enhances the sentence and requires a fifteen-year minimum sentence if a person who violates § 922(g) has three previous convictions for a “violent felony.” The statute defines violent felony as 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 language, commonly known as the “residual clause, ” is the portion of the statute invalidated by Johnson, see 135 S.Ct. at 2556-57. The remaining clauses, § 924(e)(2)(B)(i) (the “elements clause”), and the first clause of § 924(e)(2)(b)(ii) (the “enumerated offenses clause”), are still effective. Id. at 2563. Subsequently, the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 136 S.Ct. at 1268.

         B. Movant Meets the Requirements of 28 U.S.C. §§ 2244 and 2255(h)(2)

         Section 2244(b)(4) of Title 28 states that a “district court shall dismiss any claim presented in a second or successive application that the court of appeal has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” Separately, Section 2255(h)(2) requires that a second or successive habeas motion must contain “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The Government does not dispute that movant meets the requirements of these statutes.

         C. Movant's Claimed Basis for Relief and the Government's Response

         Movant Byers asserts that his 1983 conviction for Offering Violence to an Inmate under § 217.385, Mo. Rev. Stat. (1982), and his 2006 conviction for Assault Second Degree under § 565.060.1, Mo. Rev. Stat. (2000), no longer qualify as violent felonies and predicate offenses now that Johnson has declared the ACCA's residual clause unconstitutional.[3] The Government responds that despite Johnson, movant is still subject to the armed career criminal enhancement because his status does not rest on the ACCA's residual clause. The Government asserts that both of movant's convictions are violent felonies under the “elements/use of force” clause of the ACCA.

         D. Movant's Conviction for Offering Violence to an Inmate is Not a Crime of Violence

         Byers contends that his 1983 conviction for Offering Violence to an Inmate is no longer a predicate conviction under the ACCA. At the time Byers was convicted, the statute's language provided: “No offender shall commit or offer to commit violence to an employee of the department or to another offender housed in a department correctional facility, or attempt to do injury to any building or other property. Violation of this section shall be a class C felony.” § 217.835, Mo. Rev. Stat. (1982).

         Byers asserts that Missouri courts found the statutory phrase “offers to commit violence” applied to both completed and attempted assaults, citing State v. Bailey, 783 S.W.2d 490, 491 (Mo.Ct.App. 1990), and held that the statute required no culpable mental state and was a strict liability offense, citing State v. East, 817 S.W.2d 521, 522 (Mo.Ct.App. 1991), and State v. Lee, 708 S.W.2d 229, 232 (Mo.Ct.App. 1986). Byers argues that to qualify as a predicate under the ACCA's force clause, 18 U.S.C. § 924(e)(2)(B)(i), an offense must require the intentional use or threat of violent force, based on the Supreme Court's holding in Leocal v. Ashcroft, 543 U.S. 1 (2004), that convictions for accidental or negligent conduct, or for conduct lacking any mens rea, do not qualify as crimes of violence under the “use of force” clause of 18 U.S.C. § 16(a).

         Byers notes that Section 16(a) is “nearly identical” to the ACCA's force clause, § 924(e)(2)(B)(i), as both require that an offense have “as an element the use, attempted use, or threatened use of physical force.” Byers asserts that like § 16(a), the ACCA's force clause does not apply to accidental or negligent offenses, or to offenses entirely lacking in mens rea, citing United States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011) (stating the Supreme Court “has applied the reasoning in Leocal to the context of interpreting the ACCA's ‘use of force' clause, ” and determining that the phrase “use of physical force” in § 924(e)(2)(B)(i) “requires more than reckless conduct.”); United States v. Moore, 203 F.Supp.3d 854, 861 (N.D. Ohio 2016) (stating that “for the force prong of the ACCA to be constitutional, any qualifying criminal statute . . . must require mens rea” and finding that the strict liability crime of aggravated robbery lacks the mens rea necessary to qualify as a predicate offense under ACCA.).

         The Government does not address Byers' arguments that § 217.385 lacked a mens rea element, or that Leocal applies to the ACCA's force clause. Instead, the Government responds that under Missouri law, the term “violence” in § 271.385 has been defined to mean “exertion of any physical force so as to injure or abuse, ” citing State v. Mack, 12 S.W.3d 349, 351-52 (Mo.Ct.App. 2000), and State v. Lee, 708 S.W.2d at 231; and that the ACCA's “elements/use of force” clause provides a violent felony is any crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Government asserts that § 271.385 “clearly . . . has as an element the use, attempted use, or threatened use of physical force against the person of another” and concludes that, as such, it is a violent felony under the elements clause. This argument is insufficient to resolve the question presented by Byers' motion.

         In Leocal, the Supreme Court addressed 18 U.S.C. § 16(a)'s language stating that a crime of violence involves the “use . . . of physical force against” another's person or property. The Court found the word “use” requires active employment, and “most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” 543 U.S. at 9. The Court concluded that state DUI offenses with no mens rea component or that require only a showing of negligence in the operation of a vehicle are not crimes of violence under Section 16(a). Id.; see also United States v. Torres-Villalobos, 487 F.3d 607, 614-17 (8th Cir. 2007) (concluding under Leocal that a state law manslaughter offense with no mens rea element did not meet the use-of-force requirement of 18 U.S.C. § 16(b)). Thus, the use of force requires its active employment rather than negligent or accidental conduct. Leocal, 543 U.S. at 9-10, Villalobos, 487 F.3d at 616; see also United States v. Castleman, 134 S.Ct. 1405, 1415 (2014) (“[T]he knowing or intentional application of force is a ‘use' of force.”).

         As Byers asserts, the crime of violence definition at issue in Leocal and Torres-Villalobos is identical to the language in the force clause at issue here. Compare 18 U.S.C. § 924(e)(2)(B)(i) and 18 U.S.C. § 16(a). The Eighth Circuit has not had the opportunity to determine whether it will apply Leocal to the ACCA as some other courts have done. See, e.g., McMurray, 653 F.3d at 374-75; United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015). As the Sixth Circuit stated in McMurray, the Supreme Court quoted Leocal and applied its reasoning in the context of interpreting the ACCA's use of force clause in Johnson, 599 U.S. at 1271, where it “focused on the question of the degree of physical force required to qualify as a ‘violent felony'-the ‘violent' aspect of the Leocal Court's ‘violent, active crimes' characterization[.]” 653 F.3d at ...


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