United States District Court, E.D. Tennessee, Chattanooga
RICHARD L. HOWARD, Petitioner,
UNITED STATES OF AMERICA, Respondent.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's successive motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 [Doc. 56]. Petitioner bases his request for
relief on Johnson v. United States, 135 S.Ct. 2551
(2015), in which the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), was unconstitutionally vague
[Id.]. Respondent agrees Petitioner is entitled to
relief [Doc. 60], and both parties urge that the court grant
immediate release [Docs. 56, 60]. For the reasons stated
below, the successive § 2255 petition will be GRANTED;
Petitioner's term of incarceration will be reduced to
2007, Petitioner pled guilty to possessing a firearm as a
felon, in violation of 18 U.S.C. § 922(g) [Doc. 21]. As
part of his plea agreement, Petitioner stipulated that he was
an armed career criminal under § 924(e) and thus subject
to that provision's enhanced fifteen-year mandatory
minimum sentence [Doc. 22 ¶ 1]. In turn, the United
States agreed to dismiss the seven remaining counts in the
indictment, including a violation of § 924(c) with a
consecutive statutory mandatory minimum sentence
[Id. ¶ 1(c); Presentence Investigation Report
(PSR) ¶ 92].
on Petitioner's prior Arizona convictions for escape,
second-degree burglary, and two aggravated assaults, as well
as a prior federal conviction for using and carrying a
firearm during and in relation to a drug-trafficking crime,
the United States Probation Office deemed Petitioner to be an
armed career criminal subject to the enhancement stipulated
in his plea agreement [Id. ¶¶ 45-48]. This
Court sentenced Petitioner to 200 months' imprisonment on
January 15, 2008 [Doc. 31]. Petitioner did not file a direct
appeal of his conviction or sentence.
December 15, 2008, Petitioner filed a § 2255 motion
seeking to vacate, set aside, or correct his sentence [Doc.
35]. This Court denied that petition on the merits in a
Memorandum Opinion and Judgment Order entered January 19,
2012 [Docs. 44, 45]. The Supreme Court issued the
Johnson decision on June 26, 2015. The Sixth Circuit
authorized this Court to consider the instant successive
petition on October 27, 2016 [Docs. 54, 56]. The United
States supports relief.
STANDARD OF REVIEW AND ANALYSIS
relief authorized by 28 U.S.C. § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442
U.S. 178, 185 (1979). Rather, a petitioner must demonstrate
“(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
who possesses a firearm normally faces a maximum penalty of
ten years' imprisonment, 18 U.S.C. § 924(a)(2), and
three years' supervised release, 18 U.S.C. §
3583(b)(2). If the felon possesses the firearm after having
sustained three prior convictions “for a violent felony
or serious drug offense, or both, ” the ACCA requires a
fifteen year minimum sentence, 18 U.S.C. § 924(e)(1),
and increases the maximum supervised release term to five
years, 18 U.S.C. § 3583(b)(1). The ACCA defines a
“violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that (1)
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another” (the “use-of-physical-force
clause”); (2) “is burglary, arson, or extortion,
involves use of explosives” (the
“enumerated-offense clause”); or (3)
“otherwise involves conduct that presents a serious
potential risk of physical injury to another” (the
“residual clause”). 18 U.S.C. §
Johnson decision, the Supreme Court held “that
imposing an increased sentence under the residual clause of
the [ACCA] violates the Constitution's guarantee of due
process.” 135 S.Ct. at 2563. The Supreme Court did not
automatically invalidate all ACCA sentences, however,
emphasizing that its holding “d[id] 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.” Id.; see also United
States v. Kemmerling, 612 F. App'x 373, 375 (6th
Cir. 2015) (explicitly finding that Johnson did not
affect the ACCAs use-of-physical-force clause). Thus, under
the Johnson decision, an ACCA sentence only raises
due process concerns-and is invalid-if it was necessarily
based on predicate violent felonies that only qualified as
such under the residual clause. Compare United States v.
Ozier, 796 F.3d 597, 603 (6th Cir. 2015) (finding
district court did not err by categorizing defendant as an
armed career criminal where all three predicate offenses
qualified under the enumerated-offense and
use-of-physical-force clauses of the ACCA), overturned on
other grounds by Mathis v. United States, 136 S.Ct.
2246, 2251 n.1 (2016), with United States v. Bell,
612 F. App'x 378, 379-380 (6th Cir. 2015) (finding that
the Johnson decision precluded armed career criminal
designation where one of three predicate offenses, aggravated
assault, failed to qualify under either the
enumerated-offense or use-of-physical force clauses).
three of the five convictions used to designate Petitioner an
armed career criminal-the escape offense, the second-degree
burglary offense, and the 1985 aggravated assault offense, no
longer qualify as violent felonies after the Johnson
decision because they neither have as an element the use,
attempted use, or threatened use of violent force against
another, see Untied States v. Barnett, 540 F.
App'x 532, 536-37 (6th Cir. 2013) (citing
Descamps and explaining a statute only meets the
first subcategory of violent felony under the ACCA where
violations categorically require the use or attempted use of
violent physical force), nor fall within one of the
enumerated categories of violent felony listed in §
924(e)(2)(B)(ii). Because all three of the convictions only
qualified as violent felonies by way of the now-defunct
residual clause, none can be used to designate for purposes
of ACCA designation. As a result, Petitioner's 200 month
term of imprisonment and five years' supervised release
[Doc. 31] exceed his maximum authorized sentence as a
non-ACCA offender under § 922(g)(1) by 80 months'
incarceration and two years' supervised release.
See 18 U.S.C. § 924(a)(2) (“Whoever
knowingly violates subsection . . . (g) . . . of section 922
shall be . . . imprisoned not more than 10 years.”).
The Court finds that Petitioner has demonstrated a clear
entitlement to the requested collateral relief.
§ 2255 claim has merit, district courts have the
discretion to choose between discharging the petitioner,
resentencing the petitioner, correcting the petitioner's
sentence, or granting the petitioner a new trial. 28 U.S.C.
§ 2255(b). Here, the Court finds correction of sentence
to be the most appropriate form of relief. United States
v. Torres-Otero, 232 F.3d 24, 30 (1st Cir. 2000)
(“[I]n cases were the sentence (but not the conviction)
is infirm, only the ‘resentenc[ing]' or
‘correct[ing] the sentence' options are open to the
district court, since a prisoner should never be
‘discharge[d]' or ‘grant[ed] a new trial'
based solely on a defective sentence.”).