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Marks v. United States

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

November 15, 2018

HAROLD MARKS, Movant/Defendant,


         This action is before the court on the motion filed by Harold Marks to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. §2255.[1] Upon consideration of the motion, Marks's supplemental brief, [2] the government's response, [3] and Marks's supplemental reply, [4] this court concludes that Marks's motion is due to be denied.

         Marks was sentenced by this court on February 26, 2007, to imprisonment for a term of 180 months (fifteen years) following his conviction on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).[5] A violation of that statute generally is punishable by a maximum sentence of ten years imprisonment. See 18 U.S.C. § 924(a)(2). Here, however, Marks's sentence was enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), which provides, in pertinent part, that:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.S.C. § 924(e)(1) (emphasis supplied). Marks did not appeal his conviction or sentence.

         At the time of Marks's sentencing, the ACCA defined the term “violent felony” as follows:

“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.”

Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551, 2555-56 (2015) (quoting 18 U.S.C. § 924(e)(2)(B)) (emphasis in Johnson). Subdivision (i) is commonly referred to as the “elements clause, ” and the first part of subdivision (ii) is referred to as the “enumerated offenses clause.” The italicized language in subdivision (ii) is referred to as the “residual clause” of the statute, and it was struck down by the Supreme Court's 2015 Johnson decision as being unconstitutionally vague. See Id. at 2557, 2563.[6]

         The enhancement of Marks's federal sentence was based upon his previous convictions in the State of Alabama for attempted murder, second-degree assault, third-degree robbery, and two counts of third-degree burglary. He does not challenge the sentencing court's reliance upon the attempted murder and assault convictions to enhance the sentence, but he asserts that the robbery and burglary convictions were not proper enhancers because they could only have been considered under the residual clause of the ACCA, which is no longer valid after Johnson.

         The Eleventh Circuit recently clarified the appropriate framework for determining whether a sentence was enhanced under the now-invalid residual clause:

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. In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016). 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.
Critical to our decision on the merits issue in this case is the burden of proof and persuasion. The Government contends that a § 2255 movant bears the burden of proving that his sentencing enhancement was imposed because the sentencing court used the residual clause. Beeman argues that if it is merely possible that the court relied on that clause to enhance the sentence, then he has met his burden. We conclude, and hold, that, like any other § 2255 movant, a Johnson § 2255 claimant must prove his claim. To 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. 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.

Beeman v. United States, 871 F.3d 1215, 1221-22 (11th Cir. 2017) (footnotes omitted, alteration ...

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