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Smith v. United States

United States District Court, W.D. Missouri, Southwestern Division

February 2, 2018

MICHAEL SMITH, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING MOTION FOR POSTCONVICTION RELIEF

          GREG KAYS, UNITED STATES DISTRICT COURT CHIEF JUDGE

         In 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).

         Movant 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.

         Background

         On 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.

         The 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.

         The 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.

         Movant 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.[1] 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.

         After 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.

         Standard

         Section 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 ...


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