United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JEAN
C. HAMILTON UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Movant Lorenzo Brooks'
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody, filed
September 2, 2015. (ECF No. 1).
BACKGROUND
On
September 23, 2004, Movant was charged by indictment with one
count of being a felon in possession of a firearm. (See
United States v. Lorenzo Brooks, Case No. 4:04CR538 JCH,
ECF No. 1). Specifically, the indictment listed the following
prior convictions: (1) Robbery 1st Degree, on or
about March 30, 1977, in cause number 76-3026, in the Circuit
Court of the City of St. Louis, Missouri; (2) Attempted
Robbery 1st Degree, on or about March 30, 1977, in
cause number 76-3027, in the Circuit Court of the City of St.
Louis, Missouri; (3) Assault, on or about March 30, 1977, in
cause number 76-3027, in the Circuit Court of the City of St.
Louis, Missouri; (4) Conspiracy to Distribute a Controlled
Substance, on or about October 31, 1983, in cause number
83-185CR, in the United States District Court for the Eastern
District of Missouri; (5) Distribution of a Controlled
Substance, on or about October 31, 1983, in cause number
83-185CR, in the United States District Court for the Eastern
District of Missouri; (6) Possession of a Controlled
Substance, on or about August 9, 1984, in cause number
511783, in the Circuit Court of St. Louis County, Missouri;
(7) Possession of a Controlled Substance, on or about July 1,
1996, in cause number 951-4245, in the Circuit Court of the
City of St. Louis, Missouri; and (8) Stealing, on or about
October 4, 2000, in cause number 00 CR-1097, in the Circuit
Court of St. Louis County, Missouri. On July 27, 2005, the
grand jury returned a superseding indictment charging Movant
with being a felon in possession of a firearm, as set forth
in the original indictment, and with making a false statement
under oath to a court of the United States. (Id.,
ECF No. 52).
The
Court bifurcated the two counts of Movant's indictment,
and trial on the felon-in-possession count commenced on
October 3, 2005. (See United States v. Lorenzo
Brooks, Case No. 4:04CR538 JCH, ECF Nos. 70, 80).
Following a two day trial, the jury returned a guilty verdict
on that count on October 4, 2005. (Id., ECF Nos. 81,
87).
On
December 20, 2010, the Court sentenced Movant as an Armed
Career Criminal to 210 months imprisonment on Count
I[1],
to be followed by a three-year term of supervised release.
(See United States v. Lorenzo Brooks, Case No.
4:04CR538 JCH, ECF No. 111). Movant appealed his sentence to
the Eighth Circuit Court of Appeals, and the appellate court
affirmed the judgment of this Court on July 14, 2011.
(Id., ECF Nos. 128, 129).
As
stated above, Movant filed the instant § 2255 Motion on
September 2, 2015, asserting (1) that his sentence should be
reduced following the United States Supreme Court decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), (2)
that his constitutional rights were violated when the Court
used the Presentence Investigation Report
(“PSR”), a non-Shepard[2] approved
document, to establish a factual basis for the prior
convictions at sentencing, and (3) that by using the PSR, the
Government failed to establish the predicate robbery offenses
were separate and distinct criminal episodes for purposes of
the ACCA.
DISCUSSION
I.
Time-Barred Claims
As
stated above, in Ground 2 of his § 2255 Motion Movant
claims that his constitutional rights were violated when the
Court used the PSR, a non-Shepard approved document,
to establish a factual basis for the prior convictions at
sentencing. In Ground 3, Movant claims that by using the PSR,
the Government failed to establish the predicate robbery
offenses were separate and distinct criminal episodes for
purposes of the ACCA. Upon consideration, the Court agrees
Grounds 2 and 3 are time-barred, for the reasons set forth in
the Government's Supplemental Response to Show Cause
Order.
II.
Claim Addressed On The Merits
As
stated above, in Ground 1 of his § 2255 Motion Movant
claims that his sentence should be reduced following the
United States Supreme Court decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). 18 U.S.C. §
924(e)(1) provides that any defendant who violates 18 U.S.C.
§ 922(g), and has three prior convictions for a violent
felony or a serious drug offense (or both), is subject to a
fifteen-year mandatory minimum sentence. Three clauses in the
statute define the types of crimes that qualify as violent
felonies: (1) the “elements” clause, including
crimes that have as an element “the use, attempted use,
or threatened use of physical force against the person of
another”; (2) the “enumerated offenses”
clause, including the crimes of “burglary, arson, or
extortion, [or those involving the] use of explosives”;
and (3) the “residual clause”, including crimes
that “otherwise involve[] conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B).
In
Johnson, the Supreme Court held that the residual
clause was unconstitutionally vague, and thus increasing a
defendant's sentence under the clause violated the
Constitution's guarantee of due process of law.
Johnson, 135 S.Ct. at 2557,
2563.[3] The Court noted, however, that its
decision did “not call into question application of the
[ACCA] to the four enumerated offenses, or the remainder of
the Act's definition of a violent felony.”
Id. at 2563.
In his
motion, Movant apparently concedes that his prior conviction
for a controlled substance offense counts as a predicate
qualifying offense under 18 U.S.C. § 924(e)(2)(A). He
contends that post-Johnson, however, neither his
conviction for Robbery First Degree, nor his conviction for
Attempted Robbery First Degree, qualifies him for the
ACCA's enhanced penalty. (§ 2255 Motion, P. 2). Upon
consideration the Court disagrees, as both convictions
qualify as § 924(e) predicate convictions under the
still-valid elements clause. See, e.g., Brooks v. United
States, 2017 WL 751443, at *2 (W.D. Mo. Feb. 27, 2017)
(“Missouri's first degree robbery statute clearly
describes a ‘violent felony' for ACCA sentencing
purposes.”); Redd v. United States, 2017 WL
633850, at *2 (E.D. Mo. Feb. 16, 2017) (“It is
undisputed that movant has two convictions for Missouri
first-degree robbery, which are ACCA crimes of
violence.”); Boyd v. United States, 2017 WL
3676132, at *2 (E.D. Mo. August 25, 2017); Hill v. United
States, 2017 WL 57254, at *2 (E.D. Mo. January 4, 2017)
(“Additionally, movant also has a prior offense of
...