Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Niswonger v. United States

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

May 15, 2019

GARY A. NISWONGER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

         This matter is before the Court on Petitioner Gary A. Niswonger's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255 ("Motion"), filed July 1, 2016. (ECF No. 1).

         BACKGROUND

         On January 21, 1994, Niswonger pleaded guilty to being a felon in possession of a firearm and possessing a firearm not registered to him in the National Firearms Registration and Transfer Record. After the guilty plea, a Presentence Investigation Report ("PSR") was prepared by the United States Probation Office. The PSR found that Niswonger was an Armed Career Criminal ("ACC") due to three previous convictions for violent felonies. (PSR, ¶13). The violent felony convictions listed in the PSR were:

1) On July 29, 1983, Niswonger was convicted of the felony of Missouri Robbery First Degree in the Circuit Court of St. Louis County, Missouri, in Case Number 488491. (PSR, ¶24);
2) On August 1, 1983, Niswonger was convicted of the felony of Missouri Robbery First Degree in the Circuit Court of St. Louis County, Missouri, in Case Number 831-00661. (PSR, ¶28);
3) On August 1, 1983, Niswonger was convicted of the felony of Missouri Robbery First Degree in the Circuit Court of St. Louis County, Missouri, in Case Number 831-00797. (PSR, ¶28);

         As an ACC, Niswonger was assessed 31 Total Offense Levels. (PSR, ¶21). His Criminal History Category was set at Category VI, with a Sentencing Guideline range of 188-235 months. (PSR, ¶44, 62). On April 8, 1994, Niswonger was found to be an ACC and sentenced to a term of imprisonment of 225 months. Niswonger did not appeal his conviction or sentence.

         On July 1, 2016, Niswonger filed his instant §2255 Motion. Niswonger's §2255 Motion purports to rely on the Supreme Court's June 2015 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause in the definition of a "violent felony" in the Armed Career Criminal Act of 1984, 18 U.S.C. §924(e)(2)(b) ("ACCA") was unconstitutionally vague.

         STANDARD OF REVIEW

         Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the sentence was imposed in violation of the Constitution or law of the United States, that the court lacked jurisdiction to impose such a sentence, that "an error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice." Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011)(internal citations omitted). To warrant relief under § 2255, the errors of which the movant complains must amount to a fundamental miscarriage of justice. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109, 119 (1974); Hill v. United States, 368 U.S. 424, 428-29, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 422 (1962).

         DISCUSSION

         Under Title 18, United States Code, Section §922(g)(1) provides that a person who has been previously convicted of a felony is prohibited from possessing a firearm or ammunition that has affected interstate commerce. Any person who unlawfully possesses a firearm in violation of this section is subject to a term of imprisonment of up to ten years. 18 U.S.C. §924(d).

         However, the ACCA provides that any defendant convicted in federal court of being a felon in possession of firearms and/or ammunition and who has three prior felony conviction for violent felonies and/or serious drug offenses committed on occasions separate from one another must receive an enhanced punishment of a maximum of life and a minimum term of imprisonment of fifteen years. 18 U.S.C. §924(e), also known as the ACCA. Niswonger was sentenced under 18 U.S.C. §924(e) after this Court determined that he had at least three prior felony convictions for violent felonies. A "violent felony" is defined as:

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.