United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on the parties' Joint Motion
for Relief under 28 U.S.C. § 2255 (Doc. 12). For the
following reasons, the Court will grant the Joint Motion.
14, 1989, a jury found Hopkins guilty on a single count of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (Crim. Docs. 4-5, 8 in United
States v. Hopkins. No. 4:88-cr-00245-JAR-2 (E.D. Mo.)).
On October 26, 1989, the Honorable Clyde S. Cahill sentenced
Hopkins to 15 years in prison and three years of supervised
release after rinding that he had three previous convictions
for violent felonies that supported the imposition of an
enhanced sentence under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e) (Crim. Doc. 5).
As relevant, Hopkins had one prior conviction for Missouri
statutory rape and two prior convictions for assault with
intent to kill with malice (Crim. Doc. 4 at 7-9).
1993, Hopkins was convicted, in connection with a
drug-trafficking-and-murder-for-hire enterprise, on one count
of conducting an enterprise through a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(c); and one
count of conspiring to do the same in violation of 18 U.S.C.
§ 1962(d). He is currently serving a life sentence for
States v. Hopkins, No. 4:91-cr-00001-CDP-9 (E.D. Mo.);
see also United States v. Darden, 70 F.3d 1507,
1516-17 (8th Cir. 1995) (affirming Hopkins's RICO
conviction and life sentence); Hopkins v. United
States, No. 4:97-cv-958 ERW (E.D. Mo. Sept. 8, 2000)
(denying § 2255 motion in which Hopkins attacked his
RICO conviction and sentence).
sentence for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) is generally no more
than ten years in prison. 18 U.S.C. § 924(a)(2). If,
however, the defendant has three prior convictions for a
"violent felony, " the ACCA increases the sentence
in felon-in-possession cases to a mandatory minimum of
fifteen years, and maximum of life, in prison. 18 U.S.C.
ACCA defines a violent felony to include 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 for
Johnson, the Supreme Court held that imposing an
increased sentence under the residual clause of the ACCA
violates due process. 135 S.Ct. at 2558, 2563. Because
Johnson announced a new substantive rule, it applies
retroactively to cases on collateral review. Welch v.
United States, 136 S.Ct. 1257, 1264-65 (2016). The
parties agree that, in light of Johnson. Hopkins
does not have three prior convictions for a "violent
felony, " as that term is defined in the ACCA, and that
his ACCA-enhanced sentence is illegal because it exceeds the
unenhanced, ten-year maximum term of imprisonment otherwise
authorized for his felon-in-possession conviction.
Court agrees that Hopkins's sentence in this case is now
unconstitutional because it exceeds the statutorily
authorized sentence for his offense of conviction. See
Sun Bear v. United States,644 F.3d 700, 705 (8th
Cir. 2011) (en banc) (sentence imposed in excess of statutory
authority is illegal). Hopkins's Missouri statutory rape
conviction did not have as an element the use, attempted use,
or threatened use of physical force against the person of
another. It was not a burglary, arson, or extortion, nor did
it involve the use of explosives. In light of
Johnson and Welch, the conviction cannot be
considered a violent felony under the ACCA's residual
clause. The Court thus agrees with the parties that Hopkins
has no more than two prior convictions for a "violent
felony" for the purpose of applying the ACCA to his July
1989 felon-in-possession conviction. The Court will therefore
grant the Joint Motion in accordance with 28 U.S.C. §
2255(a) which permits a federal prisoner to move to vacate,
set aside, or correct his sentence on the basis that the
sentence exceeds the maximum authorized by law. Hopkins has
waived any right he may have to personally appear before the
undersigned for purposes of resentencing (Crim. Doc. 12). The
Court will therefore proceed to ...