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Bullock v. United States

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

April 6, 2018

LARRY BRADFORD BULLOCK, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Movant Larry Bradford Bullock's ("Bullock") Motion to Correct Sentence under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S.Ct. 2551 (2015) (ECF No. 1). Upon thorough consideration of the motion and related memoranda, the Court will deny Bullock's motion.

         Procedural Background

         On January 9, 2004, Bullock pleaded guilty to nine counts of a ten-count Superseding Indictment, which included eight counts of malicious damage of a building by fire and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Because he had three or more prior convictions for a violent felony, Bullock qualified for sentencing under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The district court sentenced Bullock to 188 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 Bullock had been convicted of 18 counts of Housebreaking and 10 counts of Burglary in the State of Georgia, qualifying Bullock as an armed career criminal. However, on June 26, 2015 the United States Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2105).

         Pursuant to the Johnson decision, Bullock filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on June 22, 2016. Bullock argues that his prior convictions no longer qualify as ACCA "violent felonies" because they do not meet the generic definition of burglary. Therefore, Bullock contends that he does not have the three necessary predicate convictions to qualify him as an armed career criminal. Bullock seeks a reduced sentence as a result. The government responds that Bullock's convictions meet the generic definition of an enumerated burglary under 18 U.S.C. § 924(e) and thus he is not entitled to relief under Johnson. In addition, the United States Probation Office prepared a "Resentencing Report" which recommends that Bullock remain an armed career criminal based on his conviction often counts of burglary.

         Discussion

         To 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).

         "The italicized language is the "residual clause" invalidated by Johnson, in a rule that applies retroactively to cases on collateral review." Arenderv. 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 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.").

         Specifically, "[t]he ACCA defines the term violent felony to include any state or federal felony that 'is burglary."' United States v. Lamb, 847 F.3d 928, 930-31 (8th Cir. 2017), cert. denied, No. 17-5152, 2018 WL 1568069 (U.S. Apr. 2, 2018)). With respect to burglary, the United States Supreme Court held, "Congress meant a crime 'containing] the following elements: an unlawful or unprivileged entry into ... a building or other structure, with intent to commit a crime.'" Mathis, 136 S.Ct. at 2248 (quoting Taylor v. United States, 495 U.S. 575, 599 (1990)). Courts apply a categorical approach to determine whether a prior conviction is for generic burglary. Id. This approach requires courts to "focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case." Id. "A crime counts as 'burglary' under the Act if its elements are the same as, or narrower than, those of the generic offense." Id. However, where the convicted crime "covers any more conduct than the generic offense, then it is not an ACCA 'burglary'- even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries." Id.

         Because many state burglary statutes list their elements in the alternative to define multiple crimes, courts must first determine whether the statute is divisible and, if so, apply a "modified categorical approach" to determine "which of the alternatives was the basis for the conviction." United States v. McArthur, 850 F.3d 925, 937-38 (8th Cir. 2017). This modified categorical approach '"permits [federal] sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.'" Lamb, 847 F.3d at 931 (8th Cir. 2017) (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)). However, where the statute is overinclusive and not divisible, "no prior conviction under that statute qualifies for the ACCA mandatory minimum sentence enhancement." Id.

         When faced with a statute phrased in the alternative, courts must first '"determine whether its listed items are elements or means.'" Id. (quoting Mathis, 136 S.Ct. at 2256). "Elements are the constituent parts of a crime's legal definition-the things the prosecution must prove to sustain a conviction." Mathis, 136 S.Ct. at 2248 (internal quotations omitted). Means, on the other hand, refer to "[h]ow a given defendant actually perpetrated the crime." Id. at 2251. A statute that lists alternative elements is divisible. Lamb, 847 F.3d at 931. However, "if a statute merely lists 'various factual means' of committing a single offense, then the statute is considered 'indivisible, ' and that indivisible set of elements will be the basis of the defendant's conviction. United States v. Gundy, 842 F.3d 1156, 1162 (11th Cir. 2016) (quoting Mathis, 136 S.Ct. at 2249). Further, "if that indivisible statute 'sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form.'" Id. (quoting Descamps, 570 U.S. at 261).

         In the present case, Bullock was convicted often counts of burglary under Georgia law.

         The Georgia burglary statute in 1995 when Bullock was convicted provides:

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains ...

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