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Creekmore v. United States

United States District Court, N.D. Alabama, Eastern Division

January 27, 2017

UNITED STATES OF AMERICA, Respondent. Crim. No. 1:12-CR-0291-SLB-TMP



         This 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.)[1] 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.


         Pursuant 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 sentence.

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)).[2] 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).


         On June 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);[3] 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 defendant,


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].)

         The 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 § 4B1.4:”[4]

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, 2002);
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 30, 2003).

(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.

         On 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 sentence.[5]

         Creekmore filed his Motion to Vacate, in which he challenges the use of his prior Georgia and Arkansas burglary convictions as ACCA violent felonies:

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[6] 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.)


         The ACCA states:

(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.

         Based 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.


         1. “Principles and Tools

         Recently, 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.

         a. Elements vs. Facts

         The law 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).

         b. Divisible or Indivisible

         Relying 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 2248.
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 ...

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