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Buffar v. United States

United States District Court, M.D. Tennessee, Nashville Division

July 3, 2019




         Before the court is Robert Buffar's Amended Motion to Vacate, Set Aside, or Correct Sentence in Accordance with 28 U.S.C. § 2255. (Doc. No. 3.) Buffar seeks to vacate the sentence entered upon his 2005 criminal conviction in United States v. Buffar, No. 3:05-cr-00086 (M.D. Tenn. Sept. 23, 2005) (Am. Judgment, Doc. No. 25), [1] under Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). (Doc. No. 1.) For the reasons set forth herein, the motion will be denied.


         In September 2005, Judge Todd Campbell (retired), accepted Buffar's guilty plea to the charges in the Indictment of (1) being a previously convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and (2) possession of a firearm with an altered or obliterated serial number, in violation of 18 U.S.C. § 922(k). (Crim. Doc. Nos. 20, 21.) Based on his having at least three prior violent felony convictions, Buffar was sentenced to the ACCA's mandatory minimum of 180 months on Count 1, to run concurrently with a 60-month sentence on Count 2. (Crim. Doc. No. 21.) There is no indication in the record that Buffar objected to sentencing under the ACCA. No. appeal was filed.

         The ACCA predicate felonies identified in the Presentence Report included Tennessee convictions for (1) aggravated assault (2000); (2) voluntary manslaughter (1991); and (3) assault with intent to commit murder with bodily injury (1986). Following the filing of Buffar's Motion to Vacate, the Probation Office issued a Supplement to the Presentence Report, in which it purported to agree with Buffar that, in light of Johnson, the Voluntary Manslaughter conviction no longer qualified as a predicate ACCA offense. However, the Supplement identified additional potentially qualifying convictions, including Tennessee assault with intent to commit first degree murder (1970) and two convictions for third degree burglary (1970). (See Doc. No. 4. at 2.)

         Buffar filed his Motion to Vacate, through counsel, on June 7, 2016, citing Johnson. He filed an Amended Motion on June 16, 2016 and a Supplemental Brief on August 15, 2016 (Doc. Nos. 3, 4), arguing that none of his prior convictions qualifies as a predicate offense under the now-invalidated residual clause of the ACCA. (Doc. No. 1.) The government responded (Doc. No. 11), arguing that Johnson did not affect Buffar's sentencing under the ACCA, because at least three of the previous convictions qualify as crimes of violence under the ACCA's use-of-force clause. The movant, through counsel, filed a Reply. (Doc. No. 12.)

         As set forth below, the court finds that Buffar's Tennessee convictions for (1) aggravated assault (2000), (2) voluntary manslaughter (1991), (3) assault with intent to commit first-degree murder (1970), and (4) assault with intent to commit murder with bodily injury (1986) all qualify as violent felonies under the ACCA.


         A. 28 U.S.C. § 2255

         The movant brings this action under 28 U.S.C. § 2255. Section 2255 provides a statutory mechanism for challenging the imposition of a federal sentence:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). In order to obtain relief under § 2255, a petitioner “‘must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). A motion under § 2255 is ordinarily subject to a one-year statute of limitations, running from the date the underlying conviction became final. 28 U.S.C. § 2255.

         B. The ACCA and Johnson v. United States

         Buffar pleaded guilty to a violation of 18 U.S.C. § 922(g)(1), which makes it unlawful for a previously convicted felon to possess any firearm or ammunition that has been transported in interstate commerce. The ACCA, 18 U.S.C. § 924(e), mandates a minimum sentence of fifteen years for any person convicted under § 922(g)(1) who has “three previous convictions . . . for a violent felony or a serious drug offense.” The predicate offenses at issue here clearly do not constitute drug offenses. The question is whether they qualify as violent felonies.

Section 924(e)(2)(B) 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 . .

         The first prong of that definition, § 924(e)(2)(B)(i), is known as the “use-of-force” or “elements” clause. Davis v. United States, 900 F.3d 733, 735 (6th Cir. 2018), cert. denied, 139 S.Ct. 1374 (2019); United States v. Patterson, 853 F.3d 298, 302 (6th Cir. 2017), cert. denied, 138 S.Ct. 273 (2017). The second prong, § 924(e)(2)(B)(ii), is itself split into two clauses. The first part is known as the “enumerated-offense clause”; the second part (“conduct that presents a serious potential risk of physical injury to another”) is known as the “residual clause.” Id.

         In Johnson, the Supreme Court invalidated the residual clause as unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Johnson, 135 S.Ct. at 2563. The Supreme Court subsequently recognized that Johnson had announced a new substantive rule that has retroactive effect in cases on collateral review, Welch v. United States, 136 S.Ct. 1257, 1265 (2016), thus authorizing this otherwise untimely § 2255 motion.

         Despite invalidation of the residual clause, the other parts of the ACCA remain valid and enforceable. Thus, if a defendant was previously found to have the requisite number of predicate offenses under the ACCA, but the prior offenses were deemed to qualify only under the residual clause-or the court and the parties merely assumed that the offenses qualified without analyzing under which clause of the ACCA-courts faced with a Johnson motion are called upon to consider whether the underlying offenses qualify under the use-of-force or enumerated-offense clause instead. Although these provisions remain valid, the courts have continued to struggle with the definitions contained there as well.

         Courts apply a “categorical approach” to determine whether a prior conviction qualifies as a “violent felony” under the use-of-force clause See, e.g., United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014). That means that the courts “look only to the fact of conviction and the statutory definition of the prior offense and not the particular facts underlying that conviction.” Id. (citing James v. United States, 550 U.S. 192, 202 (2007)). “This approach avoid[s] the practical difficulties and potential unfairness of permitting a sentencing court to relitigate facts and delve into the details of a prior conviction.” Id. (internal quotation marks and citation omitted). If the state law offense categorically ...

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