United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Movant John Osborne's
("Osborne") Motion to Correct Sentence under 28
U.S.C. § 2255 based on Johnson v. United
States, 135 S.Ct. 2551 (2015) (ECF No. 2). Upon thorough
consideration of the motion and related memoranda, the Court
will deny Osborne's motion.
14, 2008, Osborne pleaded guilty to one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) in United States v. Osborne, No.
4:07CV702 RLW. Because he had three or more prior convictions
for a violent felony, Osborne qualified for sentencing under
the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e). The district court sentenced Osborne to 230
months' imprisonment and 3 years' supervised release.
The district judge adopted the presentence investigation
report ("PSR") issued by the United States
Probation Office which stated that Osborne had several prior
convictions, including six prior convictions for violent
felonies, thus establishing Osborne as an armed career
criminal. However, on June 26, 2015 the United States Supreme
Court held that the residual clause of the ACCA, 18 U.S.C.
§ 924(e), is unconstitutionally vague. Johnson v.
United States, 135 S.Ct. 2551 (2105).
to the Johnson decision, Osborne filed a motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255 on June 17, 2016. Osborne argues that his prior
convictions for robbery no longer qualify as ACCA
"violent felonies." Therefore, Osborne contends
that he does not have the three necessary predicate
convictions to qualify him as an armed career criminal.
Osborne seeks a reduced sentence as a result. The government
responds that Osborne's robbery convictions under Florida
law are violent felonies under the "elements/use of
force" clause of the ACCA and thus he is not entitled to
relief under Johnson. In addition, the United States
Probation Office prepared a "Resentencing Report"
which recommends that Osborne remain an armed career criminal
based on his robbery convictions.
prevail on a § 2255 motion involving a conviction under
the ACCA, "the movant carries the burden of showing that
the Government did not prove by a preponderance of the
evidence that his conviction fell under the ACCA."
Hardman v. United States, 149 F.Supp.3d 1144, 1148
(W.D. Mo. 2016) (citation omitted). "ACCA prescribes a
15-year mandatory minimum sentence if a defendant is
convicted of being a felon in possession of a firearm
following three prior convictions for a 'violent
felony.'" Mathis v. United States, 136
S.Ct. 2243, 2248 (2016) (citing 18 U.S.C. § 924(e)(1)).
The ACCA defines "violent felony" as "any
crime punishable by imprisonment for a term exceeding one
year . . . 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 the 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).
italicized language is the "residual clause"
invalidated by Johnson, in a rule that applies
retroactively to cases on collateral review."
Arender v. United States, No. 1:15-CV-00153-AGF,
2017 WL 1209371, at *2 (E.D. Mo. Apr. 3, 2017) (quoting
Welch v. United States, 136 S.Ct. 1257, 1268
(2016)). However, the remaining clauses, including the
elements clause in subsection (i) and the four enumerated
offenses in subsection (ii), are still in effect.
Johnson, 135 S.Ct. at 2563 ("We hold that
imposing an increased sentence under the residual clause of
the Armed Career Criminal Act violates the Constitution's
guarantee of due process.. . . Today's decision does not
call into question application of the Act to the four
enumerated offenses, or the remainder of the Act's
definition of a violent felony.").
argues in his § 2255 motion that none of his prior
convictions qualify as a violent felony under either the
enumerated offenses clause or the elements clause. The
government, on the other hand, asserts that under Florida
law, robbery is a violent felony under the elements clause of
the ACCA. United States v. Fritts, 841 F.3d 937, 939
(11th Cir. 2016). The Court agrees that Osborne's Florida
convictions for robbery are violent felonies within the
elements clause of the ACCA, 18 U.S.C. §
Florida statute, "'Robbery' means the taking of
money or other property which may be the subject of larceny
from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of
the money or other property, when in the course of the taking
there is the use of force, violence, assault, or putting in
fear." Fla. Stat. Ann. § 812.13(1). The Eleventh
Circuit Court of Appeals has explicitly held that a Florida
robbery conviction qualifies as a violent felony under the
ACCA's elements clause. See Fritts, 841 F.3d at
940 ("[A] Florida robbery conviction under §
812.13(1), even without a firearm, qualifies as a 'crime
of violence' under the elements clause in the career
offender guideline ... which has the same elements clause as
the ACCA."); United States v. Seabrooks, 839
F.3d 1326, 1341, 1345 (11th Cir. 2016) ("Because the
requirement of 'force, violence, assault, or putting in
fear' in the § 812.13(1) robber statute has remained
the same, " prior Eleventh Circuit precedent controlled
the court's determination that Florida robbery
convictions qualify as ACCA violent felonies). Most recently
in United States v. Lee, the Eleventh Circuit
reaffirmed that Florida robbery convictions are predicate
ACCA violent felonies. F.3d, 2018 WL 1573347, at *3 (11th
Cir. Apr. 2, 2018) (finding that prior Eleventh Circuit cases
holding that Florida robbery convictions qualified as
convictions for a violent felony were binding precedent,
foreclosing movant's arguments that his Florida robbery
convictions could not be used to qualify him as an armed
career criminal under the ACCA).
Final Resentencing Report states that, according to court
records Osborne "did by force, violence, assault or
putting in fear, take away from the person or custody of
certain individuals on four separate occasions and was
convicted of robbery under Florida law. (Resentencing Report
in 4;O7CR7O2 RLW ¶¶ 35-38, ECF No. 34) The Court
finds that Osborne's more than three prior Florida
robbery convictions qualify as violent felonies under the
elements clause of the ACCA, 18 U.S.C. §
924(e)(2)(B)(i), such that he remains an armed career
criminal and is not entitled to relief under
Johnson. Thus, the Court will deny Osborne's
§ 2255 motion.
IT IS HEREBY ORDERED that John Osborne's
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 (ECF No. 2) is DENIED.
IS FURTHER ORDERED that the Clerk of the Court shall
docket a copy of this Memorandum and Order in Osborne's
Criminal No. 4;O7CR7O2 RLW. A separate judgment in accordance