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Levert v. United States

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

February 1, 2018

ANDREW LEVERT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE

         Andrew Levert (“Levert”), through counsel, the Office of the Federal Public Defender, has filed with the Clerk of this Court a motion to vacate, set aside, or otherwise correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The United States has opposed the motion, and Levert has filed a reply in support. For the following reasons, the motion is due to be denied.

         I. Background

         In 2002, Levert was convicted by a jury of a felon-in-possession-of-a-firearm count under 18 U.S.C. § 922(g). His Presentence Investigation Report (“PSR”) indicates that following report of an assault to police, police apprehended Levert in possession of a semiautomatic weapon with one live round in the chamber.

         Levert was sentenced under the mandatory-minimum provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), which provides enhanced penalties for defendants previously convicted of three or more “violent felonies, ” defined as offenses that either: (1) have as an element “the use, attempted use, or threatened use of physical force against the person of another, ” 18 U.S.C. § 924(e)(2)(B)(i) (known as the “elements clause”); (2) constitute “burglary, arson, or extortion, or involve[ ] the use of explosives, ” id. § 924(e)(2)(B)(ii) (known as the “enumerated offenses clause”); or (3) “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another, ” id. (known as the “residual clause”).

         Levert qualified for the ACCA enhancement on the basis of three California violent felony convictions: two for robbery with use of a firearm and one for assault with a deadly weapon. Specifically, according to the PSR, the above three convictions arose based on the following conduct by Levert. On September 25, 1980, Levert approached a cashier at Daisy's restaurant and, producing a sawed-off shotgun, demanded money; the cashier complied. Less than 15 minutes later, Levert entered a Baskin Robbins ice cream parlor and, again producing a sawed-off shotgun from a shopping bag, demanded money from everyone present. One of the patrons complied, and Levert's accomplice removed money from the cash register. Finally, later on the same evening, Levert robbed Falcone's Pizza. Again, taking a sawed-off shotgun from a bag, Levert pointed it at Marcelino Aguilar and when Aguilar started to walk away, Levert shot him in the stomach. Levert's accomplice then took money from the cash register.

         For the two robbery convictions, Levert's PSR specified that they constituted violent felonies under the ACCA because they each had “as an element the use, attempted use, or threatened use of physical force against the person of another, or [] otherwise involves conduct that presents a seriously potential risk of physical injury to another.” In other words, the PSR referenced both the “elements clause” and the “residual clause” of the ACCA for each of these offenses. For the assault with a deadly weapon conviction, the PSR stated that this conviction qualified as a violent felony under the “elements clause” of the ACCA.

         Without the ACCA enhancement, the maximum sentence Levert could have received was ten years (120 months). See 18 U.S.C. § 924(a)(2). However, as an armed career criminal, he faced a mandatory minimum sentence of 15 years (180 months) and a maximum sentence of life. 18 U.S.C. § 924(e)(1). This Court sentenced Levert to 236 months' imprisonment. The sentencing transcript indicates no discussion concerning the applicability of the ACCA enhancement.

         Levert appealed, and the Eleventh Circuit affirmed his sentence. United States v. Levert, 87 F. App'x 712 (11th Cir. 2003). Levert has previously filed a § 2255 motion that was denied on the merits, but on June 29, 2016, the Eleventh Circuit authorized Levert to file a second-or-successive motion under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A) with respect to his claim that his sentence is invalid under Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016).

         II. Discussion

         In Johnson, the Supreme Court held that the residual clause of the violent felony definition of the ACCA is unconstitutionally vague and thus imposition of an enhanced sentence under that provision violates the Fifth Amendment's guarantee of due process. 135 S.Ct. at 2557. The Supreme Court made clear that its ruling on the residual clause did not call into question the validity of the elements clause or the enumerated crimes clause of the ACCA's definition of a violent felony. Id. at 2563. Subsequently in Welch, 136 S.Ct. at 1264-65, the Supreme Court held that Johnson applies retroactively to cases on collateral review.

         Levert's argument that he is entitled to be resentenced without the ACCA enhancement is twofold: first, after Johnson, his California convictions for robbery no longer qualify as violent felonies under the residual clause of the ACCA, and second, without the residual clause, the classification of those two convictions under the remaining ACCA definitions of violent felony is also incorrect because in 2015, the Ninth Circuit held that California Penal Code § 211 does not satisfy the elements clause of the ACCA because the statute can be violated with the use of accidental force, United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015).

         The Court first notes that the Eleventh Circuit's grant of permission to file this § 2255 motion is a “threshold determination” that “does not conclusively resolve” the question whether Levert has actually satisfied the requirements of § 2255(h). In re Moore, 830 F.3d 1268, 1270-71 (11th Cir. 2016). Rather, this Court “must[] determine for itself whether [the § 2244(b)(2)] requirements are met. Jordan v. Sec'y, Dep't of Corrs., 485 F.3d 1351, 1357 (11th Cir. 2007);[1] see also In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013) (reiterating that the court of appeals' threshold conclusion in granting a successive application that a prima facie showing has been made is necessarily a “limited determination, ” as the district court then must also decide “fresh” the issue of whether § 2255(h)'s[2] criteria are met, and, if so, proceed to considering the merits of the § 2255 motion).

         Thus, it is clear that this Court must first decide whether Levert has met the requirements for filing a second or successive petition under 28 U.S.C. §§ 2255(h) and 2244(b)(2), giving no deference to the Eleventh Circuit's initial prima facie decision, and only if the Court finds that he has, the Court may then proceed to consider the merits of Levert's motion. See Faust v. United States, 572 F. App'x 941, 943 (11th Cir. 2014) (unpublished) (“Only if the district court . . . concludes that the movant ‘has established the statutory requirements for filing a second or successive motion' should it ...


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