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Colvin v. United States

United States District Court, E.D. Missouri, Eastern Division

April 4, 2018

RODERICK COLVIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner Roderick Colvin's Pro Se Motion to Vacate, Set Aside, or Correct Sentence [1][1], Motion to Correct Sentence under 28 U.S.C. § 2255 [5], and Amended Motion to Vacate Pursuant to 28 U.S.C. § 2255 and Additional Legal Citation [7].

         I. BACKGROUND

         On August 11, 2008, a criminal complaint was filed against Petitioner Roderick Colvin (“Petitioner”) alleging he possessed a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g)(1). On August 13, 2008, a grand jury returned an indictment against Petitioner for the charge of felon in possession of a firearm, as stated in the complaint. On December 2, 2008, Petitioner pled guilty to being a felon in possession of a firearm. He was sentenced on March 10, 2009, to 210-months imprisonment and five years of supervised release. Petitioner's sentence was amended to 180-months imprisonment on March 6, 2010, on request of the Government for a downward departure pursuant to Federal Rule of Criminal Procedure 35(b).

         To determine Petitioner's original sentence, the Court used the 2008 United States Sentencing Guidelines Manual. Petitioner's base offense level was calculated to be 24 under § 2K2.1(a)(1)(2), because Petitioner committed the offense after sustaining at least two prior convictions for crimes of violence. He received a four-level increase, because he possessed a firearm with an altered or obliterated serial number. Four levels were added because he possessed the firearm in connection with another felony offense, Intent to Distribute Narcotics. Petitioner received a Chapter Four enhancement to offense level 34, because he was found to be an Armed Career Criminal. Three levels were subtracted for acceptance of responsibility. His total offense level was 31. Petitioner's criminal history category was VI. The guideline range was 188 to 235 months. He was originally sentenced to 210-months imprisonment and a five-year term of supervised release.

         Pursuant to the Government's request, Petitioner's sentence was reduced. However, because of his prior convictions, the statutory range of punishment for his offense was not less than fifteen years. Therefore, Judge Jackson amended his judgment and sentenced him to the mandatory minimum of 180-months imprisonment. Petitioner's supervised release remained the same.

         After the United States Supreme Court decided Johnson v. United States, 135 S.Ct. 2251 (2015), Petitioner filed the present pro se motion to correct his sentence asserting he is no longer an Armed Career Criminal in light of the Supreme Court's decision in Johnson. The Federal Public Defender's Office was appointed to represent Petitioner and the Assistant Public Defender filed an amended motion to vacate, which the Court will now address.

         II.ANALYSIS

         The Armed Career Criminal Act (“ACCA”) establishes a minimum term of imprisonment of fifteen years for individuals convicted of certain crimes who have sustained three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924. The ACCA defines “violent felony” as:

. . . any crime punishable by imprisonment for a term exceeding one year, . . . that (i) has an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary, arson, 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). In Johnson, the Supreme Court determined the residual clause in the definition of “violent felony” in the ACCA was unconstitutionally vague. 135 S.Ct. 2551. The second half of (ii), “or otherwise involves conduct that presents a serious potential risk of physical injury to another” is the “residual clause” which the Supreme Court found to be unconstitutional. Subsequently, in United States v. Welch, the Supreme Court ruled Johnson was a new substantive rule, retroactive on collateral review. 136 S.Ct. 1257 (2016). Thus, defendants, who were determined to be Armed Career Criminals under the residual clause of the ACCA, may seek collateral review of their sentences within one year of the Supreme Court's Johnson decision. Petitioner filed his motion within the one-year time limit.

         Petitioner was considered to be an Armed Career Criminal, because he has the following prior felony convictions: Unlawful Use of a Weapon (possession of a sawed-off shotgun), Attempted Escape from Custody, Escape from Custody, Unlawful Use of a Weapon - Exhibit, Resisting Arrest, Burglary Second Degree, and Assault Second Degree, Felonious Restraint. Petitioner asserts his prior convictions for felonious restraint, unlawful use of a weapon, and burglary second degree are no longer violent felonies after the decision in Johnson. The Government argues Petitioner remains an Armed Career Criminal, because his prior convictions for unlawful use of a weapon - exhibiting, resisting arrest, and assault second degree still qualify as crimes of violence. In his reply, Petitioner states his convictions for resisting arrest and unlawful use of a weapon - exhibiting qualify as a single offense, not two separate offenses, and neither qualifies as a violent felony. The Court will address Petitioner's and the Government's arguments as follows.

         A. Unlawful Use of a Weapon - Exhibiting and Resisting Arrest

         The Government asserts Petitioner's prior convictions for unlawful use of a weapon - exhibiting and resisting arrest qualify as two separate violent felonies, even though they occurred on the same day. Petitioner argues the two convictions are considered a single offense and can only be considered as one predicate offense for the ACCA. The parties also dispute whether the prior convictions satisfy the use of force clause in the ACCA.

         1. Single Offense or Separate Offenses

         The ACCA requires the three prior felony convictions used as predicate offenses be violent felonies “committed on occasions different from one another.” 18 U.S.C. § 924(e). The two convictions at issue, unlawful use of a weapon - exhibiting and resisting arrest, were charged in the same charging document and occurred on the same date, ten minutes apart.

         The charging document for these two crimes states:

         COUNT 03: UNLAWFUL USE OF WEAPON (EXH. - GUN) - CLASS D FELONY

That Roderick Colvin, in violation of Section 571.030.1(4) RSMo., committed the class D felony of unlawful use of a weapon . . . in that on or about Saturday, January 27, 1995 at approximately 2:30 a.m., at or near the 5400 block of King, in the County of St. Louis, State of Missouri, Roderick Colvin knowingly exhibited a .38 caliber ...

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