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Morman v. United States

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

July 24, 2018





         Before the court is Petitioner Melvin Scott Morman's 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence imposed in 2007 under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See United States v. Morman, No. 3:06-CR-175-WKW (M.D. Ala. Mar. 27, 2007) (criminal judgment). Through counsel, Morman filed this § 2255 motion - his first - challenging his designation as an armed career criminal under the ACCA based upon the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Morman argues that, under the Johnson decision, in which the Court held that the residual clause of the “violent felony” definition in the ACCA is unconstitutional, he no longer has three prior convictions that qualify as ACCA predicates. He seeks resentencing without application of the ACCA. The government contends that, notwithstanding the Johnson decision and in light of the Eleventh Circuit's decision in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), Morman cannot show that his ACCA-enhanced sentence turned on the validity of the residual clause. Based upon careful consideration of the briefing and the governing law, Morman's § 2255 motion is due to be denied.


         A. Morman's Criminal Case

         Pursuant to a plea agreement, in August 2016, Morman pleaded guilty to the three charges in the indictment, including one charge of being an armed career criminal in possession of a firearm (count 3), in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). A conviction under § 922(g)(1) normally carries a sentence of not more than ten-years' imprisonment. 18 U.S.C. § 924(a)(2). However, under the ACCA, an individual who violates § 922(g) and has three prior convictions for a violent felony, a serious drug offense, or both, is subject to an enhanced sentence of not less than fifteen years. § 924(e)(1); see also Descamps v. United States, 133 S.Ct. 2276, 2282 (2013) (noting the typical statutory maximum sentence and the ACCA's heightened mandatory minimum for § 922(g) convictions).

         In 2007, when Morman was sentenced, the ACCA defined 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”; (2) “is burglary, arson, or extortion, involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B). These definitions of “violent felony” fall into three respective categories: (1) the elements clause; (2) the enumerated-offenses clause; and (3) and the now-void residual clause. See In re Sams, 830 F.3d 1234, 1236-37 (11th Cir. 2016).

         The sentencing record does not reveal which ACCA definition of “violent felony” undergirds Morman's enhanced sentence. The presentence investigation report (“PSR”) specified that Morman had five predicate convictions - “Four Burglaries and Aggravated Assault” - that subjected him to an ACCA-enhanced sentence.[1] (Doc. # 9-4, ¶ 26 (PSR).) But the PSR did not delineate under which clause of the definitions of “violent felony” each prior conviction fell. In addition, the criminal history section of the PSR contained a plethora of other convictions and arrests, including two convictions for attempted first-degree assault under Alabama law (upon which the government relies in this proceeding). Neither Morman nor the government objected to the PSR's classification of Morman as an armed career criminal under the ACCA.

         Under the PSR, Morman's total offense level was 32, which, at sentencing, was reduced to 30. His criminal history category was VI based on the accumulation of eighteen criminal history points. These calculations yielded an advisory guideline range of 168 to 210 months' imprisonment. The parties had agreed to a sentence of 188 months' imprisonment pursuant to a written plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.

         At the sentencing hearing, with neither party having objected to the PSR, the district court adopted the PSR with no discussion of whether the residual clause or another clause of the ACCA's definitions of “violent felony” supported Morman's enhanced sentence on count 3. The district court then adhered to the plea agreement's agreed-upon sentence and imposed concurrent sentences of 188 months (on count 3) and 120 months (on counts one and two). Morman did not file a direct appeal of the judgment or sentence.

         Eight years after the imposition of Morman's sentence, the U. S. Supreme Court held that the ACCA's residual clause is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Court reasoned: “[T]he indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” Id. at 2557. However, the Court “d[id] not call into question application of the [ACCA] to . . . the remainder of the Act's definition of a violent felony.” Id. at 2563 (alterations added). Subsequently, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the Johnson decision announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review.

         Based upon the Supreme Court's decisions in Johnson and Welch, on June 22, 2016, Morman timely filed this § 2255 motion challenging his ACCA-enhanced sentence on count 3.[2] Morman contends that he is entitled to resentencing under the Johnson decision because at least three of the five predicate convictions listed in paragraph 26 of the PSR - i.e., the “Four Burglaries and Aggravated Assault” (Doc. # 9-4, ¶ 26) - no longer qualify as predicate convictions under the ACCA. (Doc. # 1, at 2.) Without application of the ACCA, Morman's 188-month sentence would exceed the prescribed statutory maximum of 120 months.

         Responding, the government asserts that Morman still has three qualifying convictions under the ACCA's other definitions of “violent felony” and that, therefore, “his Johnson claim should be rejected on the merits.” (Doc. # 9, at 8.) It argues, first, that two of the burglary convictions in paragraph 26 of the PSR arise under Georgia law and qualified as violent felonies under the enumerated-offenses clause. It argues, second, that this court is not limited to considering the convictions in paragraph 26 of the PSR and that Morman's two 1990 Alabama convictions for attempted assault also qualify as violent felonies under the ACCA's elements clause. The government acknowledges, however, that the PSR does not contain information about the offense conduct underlying the attempted-assault convictions. (See Doc. # 9-4, at ¶¶ 38, 42 (PSR) (noting for each of the two attempted first-degree assault convictions that “[n]o further details [are] available”).) To supply the missing facts and citing Shepard v. United States, 544 U.S. 13, 25 (2005), the government has submitted state-court documents pertaining to these offenses. (See Doc. # 9-7.)

         Morman replies that the government's reliance on alleged Shepard documents to fill the factual gap in the PSR comes too late. He contends that this court cannot consider these documents because they were not before the sentencing court and because the two attempted assault convictions were “not identified [as qualifying ACCA predicate felonies] in Mr. Morman's PSR.” (Doc. # 15, at ¶ 5.) He also argues that the government should not be afforded an evidentiary hearing in order to cure the “defects in those convictions.” (Doc. # 15, at ¶ 5.)

         B. The Eleventh Circuit's Intervening Decision in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017)

         After the parties filed their briefing in this case, the Eleventh Circuit decided Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017). The divided panel in Beeman resolved an intra-circuit conflict on a Johnson movant's burden in a § 2255 proceeding. See Id. at 1222 n.3 (noting the divergent positions of two panel published decisions but categorizing the conflicting discussions as dicta). The conflict arose in the wake of a wave of applications from inmates seeking authorization to file second or successive § 2255 motions after the U.S. Supreme Court decided Johnson and Welch. See In re Clayton, 829 F.3d 1254, 1274 (11th Cir. 2016) (Jill Pryor, J., concurring in result) (“We have received over 1, 800 requests for authorization to file a second or successive § 2255 motion since Welch was decided.” (citing Welch, 136 S.Ct. at 1257)).

         In Beeman, which, as here, was decided in the first-§ 2255 motion context, the Eleventh Circuit held that a § 2255 movant bears the burden of proving a Johnson claim:

To prove a Johnson claim, a movant must establish that his sentence enhancement “turn[ed] on the validity of the residual clause.” In other words, he must show that the clause actually adversely affected the sentence he received. Only if the movant would not have been sentenced as an armed career criminal absent the existence of the residual clause is there a Johnson violation. That will be the case only (1) if the sentencing court relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause (neither of which were called into question by Johnson) to qualify a prior conviction as a violent felony, and (2) if there were not at least three other prior convictions that could have qualified under either of those two clauses as a violent felony, or as a serious drug offense.

871 F.3d at 1221 (internal footnote and citation omitted). Because the “burden of proof and persuasion” was “critical” to its decision, the Eleventh Circuit elaborated that, “[t]o prove a Johnson claim, the movant must show that - more likely than not - it was use of the residual clause that led to the sentencing court's enhancement of his sentence.” Id. at 1221-22. “If it is just as likely that the sentencing court relied on the elements or enumerated offenses clause, solely or as an alternative basis for the enhancement, then the movant has failed to show that his enhancement was due to use of the residual clause.” Id. at 1222. The Eleventh Circuit also emphasized that the movant must prove a “historical fact” - namely, that at the time of sentencing, the defendant was “sentenced solely per the residual clause.” Id. at 1224 n.5. “[A] sentencing court's decision today” that a prior offense no longer qualifies as a violent felony under the elements cause or enumerated-offenses clause “would be a decision that casts very little light, if any, on the key question of historical fact.” Id. However, “if the law was clear at the time of sentencing that only the residual clause would authorize a finding ...

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