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Green v. United States

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

September 30, 2019

DAVID L. GREEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner David L. Green’s motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, based on Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague.[1] The government opposes Petitioner’s motion and argues that Johnson does not affect Petitioner’s sentence because Petitioner’s prior convictions do not fall under the ACCA’s residual clause. The Court agrees and will therefore deny Petitioner’s motion.

         BACKGROUND

         On June 28, 2013, Petitioner entered into a guilty plea under Federal Rule of Criminal Procedure 11(c)(1)(A), in which he pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(e). Thereafter, the United States Probation Office issued a presentence investigation report (“PSR”), which stated that Petitioner had the following prior felony convictions for offenses qualifying as violent felonies under the ACCA: (1) three separate convictions for residential burglary, in violation of 720 ILCS § 5/19-3; (2) three separate convictions for aggravated battery, in violation of 720 ILCS 5/12-4(b)(1); and (3) one conviction for aggravated robbery, in violation of 720 ILCS 5/18-5(a). Petitioner filed a statement that he did not object to the PSR.

         On February 20, 2014, the Court adopted the PSR, granted the government’s motion for a downward departure, and sentenced Petitioner to 110 months in prison. Petitioner did not appeal his conviction or sentence.

         Petitioner now moves to vacate, set aside, or correct his sentence, arguing that, in light of Johnson, his prior convictions[2] no longer qualify as predicate offenses under the ACCA. The government responds that Petitioner is barred from appealing his sentence pursuant to the terms of his plea agreement. The government also contends that all of the prior convictions remain violent felonies under different clauses of the ACCA, including the “enumerated offenses clause” and “elements clause”-which were unaffected by Johnson.[3]

         DISCUSSION[4]

         In order to prevail on a § 2255 motion involving an ACCA conviction, “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.” Givens v. United States, No. 4:16-CV-1143 CAS, 2016 WL 7242162, at *2 (E.D. Mo. Dec. 15, 2016) (citations omitted).

         As noted above, the ACCA increases the prison term for a person convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), to a minimum of 15 years in prison if the person has had three or more previous convictions for a “violent felony.” 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 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).

         The italicized language is the “residual clause” invalidated by Johnson, in a rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). But the remaining clauses, including subsection (i) (the “elements clause”) and the first part of subsection (ii) (the “enumerated offenses clause”) are still effective. Johnson, 135 S.Ct. at 2563 (“Today’s decision does not call into question ...


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