United States District Court, E.D. Missouri, Eastern Division
DAVID L. GREEN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
now moves to vacate, set aside, or correct his sentence,
arguing that, in light of Johnson, his prior
convictions 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.
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
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
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).
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 ...