United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Movant's Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. Respondent opposes the Motion
and has filed an opposition in response to the Court's
Order for same.
seeks to have his sentence vacated based upon Descamps v.
United States, __ U.S. __, 133 S.Ct. 2276 (2013). Movant
was convicted of violating 18 U.S.C. § 844(3). This
Court determined that this conviction was for a “crime
of violence, ” thereby triggering the career offender
enhancement of U.S.S.G. § 4B1.1(a)(2). Having been
previously convicted of three crimes of violence, the Court
found Movant was subject to an enhanced sentence.
Movant's sentence was affirmed by the Eighth Circuit
Court of Appeals, United States v. Williams, 690
F.3d 1056, 1068 (8th Cir. 2012), Movant now urges the Court
to vacate his sentence based on Descamps and
Elonis v. United States, 135 S.Ct. 2001 (2015).
Descamps, the Supreme Court held that
“sentencing courts may not apply the modified
categorical approach” to determine if a conviction is a
“violent felony” under the ACCA when the crime of
conviction “has a single, indivisible set of
elements.” See Descamps, 133 S.Ct. at 2281-82.
18 U.S.C. § 844(e) is a “divisible” statute,
Movant argues that the unique facts of this case render it in
effect, an “indivisible” statute which is not
subject to the acceptable modified categorical approach for
argues that Descamps is inapplicable because Section
844(e) is a divisible statute and therefore does not fall
within the parameters of Descamps.
Respondent argues that Descamps does not announce a
new rule of law and therefore is inapplicable to cases on
A “new rule” is one that “breaks new ground
or imposes a new obligation on the States or the Federal
Government.” Teague, 489 U.S. at 301, 109
S.Ct. 1060.Stated differently, “a case announces a new
rule if the result was not dictated by precedent
existing at the time the defendant's conviction became
final.” Id. A rule is not dictated by existing
precedent “unless it would have been ‘apparent to
all reasonable jurists.' ” Chaidez v. United
States, __ U.S. __, 133 S.Ct. 1103, 1107, 185 L.Ed.2d
149 (2013) (quoting Lambrix v. Singletary, 520 U.S.
518, 528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)). But rules
that apply a general principle to a new set of facts
typically do not constitute new rules. Id.; Wright v.
West, 505 U.S. 277, 309, 112 S.Ct. 2482, 120 L.Ed.2d 225
(1992) (Kennedy, J., concurring in the judgment).
Armed Career Criminal Act establishes a mandatory minimum
prison sentence of fifteen years for defendants convicted of
possessing a firearm as a previously convicted felon if they
have three prior convictions for “a violent
felony.” 18 U.S.C. § 924(e)(1). The Act defines
“violent felony” as “any crime punishable
by imprisonment for a term exceeding one year ... 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, [or] involves the use of
explosives.”2 Id. § 924(e)(2)(B). To
determine whether a past conviction qualifies as a violent
felony, courts use a categorical approach that looks to the
fact of conviction and the statutory elements of the prior
offense. Taylor v. United States, 495 U.S. 575, 602,
110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In cases where a
statute describes alternate ways of committing a crime-only
some of which satisfy the definition of a violent
felony-courts may use a modified categorical approach and
examine a limited set of documents to determine whether a
defendant was necessarily convicted of a violent felony.
Id.; Shepard v. United States, 544 U.S. 13, 20-21,
125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). These materials
include charging documents, jury instructions, plea
agreements, transcripts of plea colloquies, or “some
comparable judicial record.” Shepard, 544 U.S.
at 26, 125 S.Ct. 1254; see also Taylor, 495 U.S. at
602, 110 S.Ct. 2143.
Descamps, the Supreme Court addressed whether courts
could consider these judicial records when examining
convictions under an indivisible statute that
“criminalizes a broader swath of conduct” than
necessary to establish a violent felony. Descamps,
133 S.Ct. at 2281. In Descamps, the defendant had
sustained a prior conviction for burglary under a state
statute that did not require the perpetrator's entry to
be unlawful. Id. at 2282. The statute thus
prohibited a broader range of conduct than the generic
definition of burglary, which encompasses “unlawful
or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.”
Id. at 2283 (emphasis added) (quoting
Taylor, 495 U.S. at 599, 110 S.Ct. 2143).
Court explained that Taylor and Shepard
both addressed divisible statutes-statutes with multiple
elements set out in the alternative-and held that the
modified categorical approach may be used to determine which
elements formed the basis of a defendant's prior
conviction. Id. at 2285 & n. 2. Once the
elements underlying the crime of conviction are ascertained,
the categorical approach is used to determine whether the
crime is a violent felony. Id.
Descamps held, however, that the modified
categorical approach does not apply to indivisible statutes,
because such statutes do not require a choice between
alternatives. Rather, the indivisible statute in
Descamps posed “a simple discrepancy between
generic burglary and the crime established [under California
law].” Id. The elements of the defendant's
prior conviction for burglary were known. Because those
elements did not correspond to the generic definition of