Brown v. United States

          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 ...