United States District Court, W.D. Missouri, Southwestern Division
ORDER GRANTING MOTION FOR POSTCONVICTION
KAYS, UNITED STATES DISTRICT COURT CHIEF JUDGE
2010, Movant Michael Smith pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1), and the Court sentenced him to 180 months'
imprisonment under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Now
before the Court is Movant Michael Smith's “Second
or Successive Motion to Correct Sentence Under 28 U.S.C.
§ 2255” (Doc. 1) filed in the wake of Johnson
v. United States, 135 S.Ct. 2551 (2015).
argues his prior Missouri convictions for second-degree
burglary are not convictions which fall within the enumerated
offense clause of the ACCA, and so his sentence was in excess
of the maximum authorized by law. Holding that the motion is
not procedurally defaulted and Movant does not have three
prior ACCA qualifying convictions, the motion is GRANTED.
October 18, 2009, Movant got into a heated argument with
another man and retreated into his apartment. When the man
forced his way through the door, Movant killed him with a
shotgun. The Missouri State Highway Patrol determined the
shooting was self-defense, but arrested Movant for being a
felon in possession of a firearm. Movant subsequently pled
guilty in federal court to one count of being a felon in
possession of a firearm.
ACCA increases the range of punishment in felon-in-possession
cases from a maximum punishment of 120 months'
imprisonment to a minimum of 180 months' imprisonment up
to a maximum punishment of life imprisonment. 18 U.S.C.
§ 924. The ACCA applies to any defendant who has three
prior convictions for a “violent felony or serious drug
offense.” The statute defines a “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). Subsection
(i) is known as the “force” clause; the phrase
“burglary, arson, or extortion” is known as the
“enumerated offenses” clause; and the italicized
phrase is known as the “residual” clause.
Johnson, 135 S.Ct. 2555-56.
Court sentenced Movant on November 30, 2010. The Court
accepted the Presentence Investigation Report's
(“PSR”) conclusion that Movant's two prior
Missouri convictions for second-degree burglary (which were
for convictions for burglary of an inhabitable structure) and
a third Missouri conviction for first-degree burglary
qualified as violent felonies under ACCA. Neither the PSR nor
the Court identified the clause under which Movant's
convictions qualified as violent felonies. Although
Movant's advisory sentence under the Guidelines was 135
to 168 months' imprisonment, the Court sentenced Movant
to the mandatory minimum 180 months' imprisonment.
did not file a direct appeal, but on November 21, 2011, filed
a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. This habeas petition raised
three arguments, none of which questioned the legality of the
ACCA or whether the prior convictions qualified as ACCA
predicate offenses. The Court denied it on April 25, 2012.
the Supreme Court issued its decision Johnson
holding the ACCA's residual clause was
void-for-vagueness, 135 S.Ct. at 2563, the Eighth Circuit
granted Movant permission to file a successive habeas
petition. Movant filed the pending motion on June 22, 2016.
2255 allows a district court to “vacate, set aside or
correct [a] sentence” which “the court was
without jurisdiction to impose . . . or . . . was in excess
of the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). Movants
are entitled to a hearing “[u]nless the motion and the
files and records ...