United States District Court, N.D. Alabama, Eastern Division
LOVELACE BLACKBURN SENIOR UNITED STATES DISTRICT JUDGE.
case is presently pending before the court on petitioner
Bryan Allen Creekmore's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody, as amended [hereinafter Motion to Vacate].
(Doc. 1; Crim. Doc. 20; Doc. 11.) Citing Mathis v. United
States, 136 S.Ct. 2243');">136 S.Ct. 2243 (2016), Johnson v. United
States, 135 S.Ct. 2551 (2015), Descamps v. United
States, 133 S.Ct. 2276');">133 S.Ct. 2276 (2013), and United States v.
Howard, 742 F.3d 1334 (11th Cir. 2014), Creekmore
contends he was improperly sentenced under the Armed Career
Criminal Act [ACCA], 18 U.S.C. § 924(e), because his
prior convictions do not qualify as violent felonies.
(See doc. 1 at 4, doc. 11 at 1-2, doc. 18 at 1.) For
the reasons set forth below, the court finds that
Creekmore's Motion to Vacate is due to be granted in part
and denied in part.
STANDARD OF REVIEW
to § 2255 -
A prisoner in custody under sentence of a [district] court .
. . 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 . . . may move the court which
imposed the sentence to vacate, set aside or correct the
28 U.S.C. § 2255(a). “Relief under 28 U.S.C.
§ 2255 is reserved for transgressions of constitutional
rights and for that narrow compass of other injury that could
not have been raised [on] direct appeal and would, if
condoned, result in a complete miscarriage of justice.”
Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004)(quoting Richards v. United
States, 837 F.2d 965, 966 (11th Cir.1988)(quoting
United States v. Capua, 656 F.2d 1033, 1037 (5th
Cir. Unit A Sep.1981)))(internal quotations omitted).
Creekmore has the burden of showing he is entitled to relief
from his sentence. Barnes v. United States, 579 F.2d
364, 366 (5th Cir. 1978)(citing Coon v. United
States, 441 F.2d 279 (5th Cir.), cert. denied,
404 U.S. 860 (1971)). He must prove “not merely that the
errors [in the proceeding] created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting [the entire proceeding] with error of
constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982).
27, 2012, the Government filed a one count Indictment against
Bryan Allen Creekmore. (Crim. Doc. 1.) The Indictment charged
Creekmore with possession of a firearm in violation of 18
U.S.C. § 922(g)(1); it stated:
The Grand Jury charges that:
On or about the 8th day of November, 2010, in Talladega
County, within the Northern District of Alabama, the
after having been convicted on May 23, 2002, in the Circuit
Court of Franklin County, Arkansas, of the offense of
Commercial Burglary (Count 1) and Theft of Property (Count
2), in case number CR 2002-44; and having been convicted on
October 16, 2007, in the Circuit Court of Leon County,
Florida, of the offense of Burglary of a Dwelling (Count 1)
and Grand Theft of a Motor Vehicle (Count 2) in case number
2003-CF-02241A, each of the said offenses being a crime
punishable by a term of imprisonment exceeding one year, did
knowingly possess in and affecting commerce a firearm, that
is, a Tanfoglio .22 caliber pistol, in violation of Title 18,
United States Code, Section 922(g)(1).
(Id.) Creekmore entered a plea of guilty to the
charge. (Crim. Doc., Minute Entry [Sept. 18, 2012].)
Probation Office prepared a Presentence Investigation Report
[the Report] for the court's use in sentencing. As part
of the “Defendant's Criminal History, ” the
Report listed four prior convictions as “predicate
violent felon[ies] for application of the enhanced penalties
at 18 U.S.C. § 924(e)(1) and USSG §
1. “Burglary/Pickens County Superior Court; Jasper, GA;
Case No.: 2001SUCR450” (November 14, 2001);
2. “Burglary - Commercial . . . Franklin County Circuit
Court; Ozark, AR; Case No.: CR 2002-44” (February 27,
3. “Attempted Home Invasion Robbery/Leon County Circuit
Court; Tallahassee, FL; Case No.: 2003CF002233A” (June
30, 2003); and
4. “Burglary of Dwelling . . . Leon County Circuit
Court; Tallahassee, FL; Case No.: 2003CF002241A” (June
(Crim. Doc. 16 at 6-8, 11-14.) Prior to sentencing, Creekmore
objected to the use of the burglary convictions from Georgia
and Arkansas to enhance his sentence under the ACCA. (Crim.
Doc. 13.) These objections were overruled.
April 18, 2013, the court entered its Judgment in a Criminal
Case, which imposed a custodial sentence of 180 months (15
years) in accordance with § 924(e)(1). (Crim. Doc. 18 at
2.) Creekmore did not appeal his conviction and/or
filed his Motion to Vacate, in which he challenges the use of
his prior Georgia and Arkansas burglary convictions as ACCA
The district court [erroneously] found that Mr. Creekmore had
valid predicates for the ACCA.
The district court counted Mr. Creekmore's state of
Arkansas conviction for commercial burglary, Arkansas
Criminal Code § 3-39-201(b)(1), his state of Georgia
conviction for burglary, GA Code 5 16-7-1, and his Florida
conviction for second-degree burglary, FL Code 5.
810.02(3)(b), as valid predicates under the Armed Career
Criminal Act (ACCA), 18 U.S C. § 924(e) and imposed a
sentence of 180 months, which was within a guidelines range
enhanced by the ACCA. In light of Descamps v. United
States, __ U.S. __, 133 S.Ct. 2276');">133 S.Ct. 2276 (2013), and United
States v. Howard, 742 F.3d 1334 (11th Cir. 2014), Mr.
Creekmore's Arkansas and Georgia burglary convictions are
not a valid predicates under the ACCA because the statutes
are nongeneric and indivisible. Under Descamps, the modified
categorial approach cannot be applied, and these convictions
cannot qualify as ACCA predicates regardless of what any
Shepard documents may show. Without inclusion of the these
burglary convictions, Mr. Creekmore would not have been
subject to an enhanced guidelines range under the ACCA.
(Doc. 1 at 4 [footnote added].) He subsequently amended his
Motion to Vacate to add a claim that, after Johnson,
his Florida convictions for attempted home-invasion robbery
and burglary could no longer be considered violent felonies
under the ACCA. (Doc. 11 at 1-2, 8-9, and n.5.)
(e)(1) In the case of a person who violates section 922(g) of
this title and has three previous convictions by any court .
. . for a violent felony . . . committed on occasions
different from one another, such person shall be fined under
this title and imprisoned not less than fifteen years . . . .
(2) As used in this subsection -
(B) the term “violent felony” means 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). “The first prong of [the]
definition [of a ‘violent felony' under the ACCA]
is sometimes referred to as the ‘elements clause, '
while the second prong contains the ‘enumerated
crimes' and, finally, what is commonly called the
‘residual clause.'” United
States v. Gundy, 842 F.3d 1156, 1160-61 (11th Cir.
2016)(citing United States v. Owens, 672 F.3d 966,
968 (11th Cir. 2012))(footnote omitted). The Supreme Court
declared the residual clause to be unconstitutionally vague
in Johnson v. United States, 576 U.S. ___, 135 S.Ct.
2551, 2557-58, 2563 (2015). However, it held that its
“decision [did] not call into question application of
the [ACCA] to the four enumerated offenses, or the remainder
of the Act's definition of a violent felony.”
Id., 135 S.Ct. at 2563. Therefore, the issue before
this court is whether Creekmore's prior convictions are
convictions for violent felonies, as defined by the elements
clause or the enumerated-crimes clause.
on the Report, this court found that Creekmore had four
qualifying, state-court convictions for purposes of enhancing
his sentence under the ACCA: three burglary convictions -
violent felonies under the enumerated-crimes clause - and one
conviction for attempted home-invasion robbery - a violent
felony under the elements clause.
ENUMERATED CRIMES CLAUSE
“Principles and Tools”
the Eleventh Circuit set forth the following
“principles and tools” for determining whether a
prior conviction is a violent felony conviction under the
enumerated-crimes clause of the ACCA. Gundy, 842
F.3d at 1161-64.
Elements vs. Facts
is well settled “that ‘[a]ll that counts under
the [ACCA] . . . are the elements of the statute of
conviction.'” Id. at 1161 (quoting
Mathis, 136 S.Ct. at 2251). “For more than 25
years, [the Supreme Court has] repeatedly made clear that
application of ACCA involves, and involves only, comparing
elements.” Id. (quoting Mathis, 136
S.Ct. at 2257). “‘That simple point became a
mantra' in the Supreme Court's subsequent ACCA
decisions. [Mathis, 136 S.Ct. at 2251.] Indeed, the
Supreme Court in Mathis pointed out that this
‘essential rule' has governed all of its ACCA
decisions since Taylor [v. United States,
495 U.S. 575 (1990)].” Id. (quoting
Mathis, 136 S.Ct. at 2251-52).
Divisible or Indivisible
on Mathis, the Eleventh Circuit held:
Mathis also instructs that “[t]he comparison
of elements . . . is straightforward when a statute sets out
a single (or ‘indivisible') set of elements to
define a single crime.” [Mathis, 136 S.Ct.] at
2248. In such cases, the court simply “lines up that
crime's elements alongside those of the generic offense
and sees if they match.” Id. This is known as
the “categorical approach.” See Id. at
Mathis notes, however, that some criminal statutes
do not set out a single crime but “have a more
complicated (sometimes called ‘divisible')
structure.” Id. In fact, “[a] single
statute may list elements in the alternative, and thereby
define multiple crimes.” Id. at 2249. If the
statute sets out multiple crimes, it is
“divisible.” See id. Faced with a
“divisible” statute, courts must identify which
crime in the statute formed the basis of the defendant's
conviction. See id. The Mathis Court
stressed that “[t]o address that need, this Court
approved the ‘modified categorical approach' for
use with statutes having multiple alternative
elements.” Id. Under the modified categorical
approach, “a sentencing court looks to a limited class
of documents (for example, the indictment, jury instructions,
or plea agreement ...