United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER I. INTRODUCTION
ANDREW
L. BRASHER UNITED STATES DISTRICT JUDGE
Before
the court is Petitioner Jonathan Ellis Brown’s 28
U.S.C. § 2255 motion to vacate, set aside, or correct
his sentence imposed in 2004 under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e). (Doc.
1).[1]
See United States v. Brown, Case No. 2:03cr243-MEF
(M.D. Ala. Sep. 14, 2004) (criminal judgment). Through
counsel, [2] Brown 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). Brown argues that, under the
Johnson decision, in which the Supreme 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. For the
reasons that follow, Brown’s § 2255 motion is due
to be denied.
II.
BACKGROUND
A.
Brown’s Criminal Case
In June
2004, Brown pleaded guilty under a plea agreement to being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). 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
or more prior convictions for a “violent felony,
” a “serious drug offense, ” or both, is
subject to an enhanced sentence of not less than fifteen
years. 18 U.S.C. § 924(e)(1); see also Descamps v.
United States, 570 U.S. 254, 258 (2013) (noting the
typical statutory maximum sentence and the ACCA’s
heightened mandatory minimum for § 922(g) convictions).
In
2004, when Brown 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.” 18 U.S.C. §
924(e)(2)(B)(i) & (ii). 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).
In
Brown’s case, the U.S. Probation Officer indicated in
the presentence investigation report (“PSI”) that
Brown was subject to an ACCA-enhanced sentence. See
Doc. 9-4 at 7, ¶ 21; id. at 17, ¶ 66. The
PSI reflected that Brown had numerous prior felony
convictions. However, the PSI did not specify which of these
prior felony convictions qualified as predicate convictions
subjecting Brown to the ACCA enhancement. Nor did the PSI
specify which clause of the ACCA definition of “violent
felony” any of the prior convictions fell under.
The
court held Brown’s sentencing hearing on August 31,
2004.[3] The district court sentenced Brown under
the ACCA to 180 months in prison.[4] A transcript of
Brown’s sentencing hearing is not in the record, and
the record does not contain findings by the sentencing court
designating which of Brown’s prior felony convictions
qualified as predicate convictions subjecting him to the ACCA
enhancement. The record does not include findings by the
sentencing court specifying which clause of the ACCA
definition of “violent felony” was applicable to
any of Brown’s prior convictions.
B.
Supreme Court Johnson Decision
Ten
years after Brown was sentenced, the 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. 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.
C.
Brown’s Johnson Claim
On June
21, 2016, Brown filed this motion pursuant to § 2255
arguing that under Johnson he is entitled to be
resentenced without the ACCA enhancement. (Doc. 1). Brown
maintains that the sentencing court relied on the now-void
residual clause to classify some of his prior felony
convictions as “violent felonies” under the ACCA.
He contends that when those convictions are removed from
consideration, he no longer has the requisite three prior
convictions for violent felonies to qualify for sentencing
under the ACCA.[5]
The
Government argues that six of the prior convictions
referenced by Brown in his § 2255 motion-and set forth
in the PSI-qualified as violent felonies under the
ACCA’s elements clause and were therefore unaffected by
Johnson’s holding voiding the ACCA’s
residual clause. (Doc. 9). The Government argues that each of
the following of Brown’s prior convictions was a
violent felony under the elements clause:
• a 1992 conviction for first-degree sexual abuse in the
Circuit Court of Autauga County, Alabama (Case No. CC
92-176);
• a 1995 conviction for second-degree assault in the
Circuit Court of Autauga County, Alabama (Case No. CC 95-76);
• a 1995 conviction for second-degree assault in the
Circuit Court of Autauga County, Alabama (Case No. CC 95-77);
• a 1995 conviction for second-degree assault in the
Circuit Court of Autauga County, Alabama (Case No. CC 95-78);
• a 1995 conviction for second-degree assault in the
Circuit Court of Autauga County, Alabama (Case No. CC
95-146); and
• a 2000 conviction for second-degree assault in the
Circuit Court of Monroe County, New York (Case No. CC
2000-336).
See Doc. 9 at 2-3; Doc. 9-4 at 8-12, ¶¶
28, 30, 31, 32, 34 & 37.
D.
Eleventh Circuit’s Intervening ...