United States District Court, W.D. Missouri, Western Division
CHRISTOPHER J. MORRIS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 04-0414-01-ODS
ORDER GRANTING PETITIONER'S AMENDED MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. §
D. SMITH, UNITED STATES DISTRICT COURT SENIOR JUDGE.
is Petitioner Christopher J. Morris's Amended Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255. Doc. #10. Petitioner seeks to be resentenced pursuant
to Johnson v. United States, 135 S.Ct. 2551 (2015),
which held the Armed Career Criminal Act's
(“ACCA”) residual clause is unconstitutional. The
parties have stipulated Petitioner is entitled to
post-conviction relief, and the parties agree Petitioner, who
was sentenced to 180 months' imprisonment and five years
of supervised release, should be resentenced to 120
months' imprisonment and three years of supervised
release. Doc. #11. For the following reasons, the Court
accepts the parties' stipulation, grants Petitioner's
amended motion, vacates Petitioner's sentence, and
resentences Petitioner to 120 months' imprisonment and
three years of supervised release.
January 25, 2007, this Court resentenced Petitioner to a term
of 155 months and 23 days' imprisonment following his
conviction of being a felon in possession of a firearm, 18
U.S.C. § 922(g), and after finding he had three
qualifying prior convictions that supported imposition of a
sentence under the ACCA, 18 U.S.C. § 924(e), based on
multiple convictions for burglary. At that time, the Court
found each burglary conviction was a “violent
felony” under the ACCA's residual clause, which
defines “violent felony” to include any offense
that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii).
reliance on Johnson v. United States, 135 S.Ct. 2551
(2015), where the Supreme Court held the ACCA's residual
clause was unconstitutionally vague, Petitioner seeks relief
under 28 U.S.C. § 2255. He asks the Court to vacate his
sentence, and resentence him without application of the
ACCA's residual clause.
parties filed a stipulation, establishing Petitioner is
entitled to relief under Johnson. Doc. #11. The
Government, through the stipulation, has waived any
procedural defenses to the motion, including timeliness. The
parties request this Court grant Petitioner's amended
motion, and resentence Petitioner to 120 months'
imprisonment, the statutory maximum sentence after applying
Johnson and eliminating the ACCA enhancement.
Court finds, without objection from the parties,
Johnson constitutes a new substantive rule of
constitutional law that should be applied retroactively to
defendants previously sentenced under the ACCA. In light of
Johnson, the Court further finds, without objection
from the parties, that Petitioner's prior Missouri
convictions for burglary no longer qualify as “violent
felonies” under the ACCA's residual clause. The
Court concludes that without those prior convictions,
Petitioner does not have three necessary predicate
convictions to qualify him for sentencing under the ACCA.
on the these findings, the Court concludes Petitioner's
currently imposed sentence of 155 months and 23 days is now a
per se illegal sentence, not only in violation of the laws of
the United States, but also in excess of the ten-year
statutory maximum for the federal offense of being a felon in
possession of a firearm. Allowing this sentence to remain
intact would violate due process, and result in a fundamental
miscarriage of justice.
Court further finds Petitioner's written waiver of his
right to personally appear for resentencing (Doc. #11, at 3)
was executed knowingly and voluntarily. Fed. R. Crim. P.
43(c)(1)(B) (permitting a defendant to waive his right to be
present at sentencing in a noncapital case by). Thus, the
Court is authorized to resentence Petitioner without further
delay and without his personal appearance.
Court finds, without objection from the parties and pursuant
to Petitioner's waiver, Petitioner should be resentenced
to a term of 120 months. The Court directs an amended
judgment be entered in Case No. 04-00414-01-CR-W-ODS,
substituting 120 months as the term of imprisonment to
replace the previously imposed 155 months and 23 days'
imprisonment term, and substituting three years of supervised
release to replace the previously imposed five years of
supervised release. All previously imposed conditions of
release shall remain unchanged. Additionally, the following
condition shall be added to Petitioner's supervised
release: if a viable home plan has not been approved by the
date of release from custody, Petitioner shall reside in and
satisfactorily participate in a residential reentry center
program until an acceptable home plan is approved, but not to
exceed a period of 60 days.
the Court finds that because Morris has already been in
custody for more than 120 months by reason of his conviction
under 18 U.S.C. § 922(g), he should be released from
imprisonment and placed on supervised release without delay.
reasons set forth above, the Court grants Petitioner's
Amended Motion to Correct Sentence under 28 U.S.C. §
2255, vacates Petitioner's previous sentence, and orders
Petitioner be sentenced to 120 ...