Sargent v. USA
Filing
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MEMORANDUM OPINION & ORDER: 1. Sargent's Second or Successive Motion to Vacate under 28 U.S.C. § 2255 is DENIED. 2. A Certificate of Appealability shall not issue. 3. A judgment in favor of the United States shall issue this date. Signed by Judge Danny C. Reeves on 11/14/2016.(CBD)cc: COR, Sargent via US Mail. Modified on 11/14/2016 (CBD).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Frankfort)
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UNITED STATES OF AMERICA,
Plaintiff,
V.
JERRY LEE SARGENT,
Defendant.
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Criminal Action No. 3: 09-07-DCR
and
Civil Action No. 3: 16-71-DCR
MEMORANDUM OPINION
AND ORDER
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Defendant Jerry Sargent pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) and was sentenced to a term of 327 months’ imprisonment.
[Record Nos. 74, 76] The United States Court of Appeals for the Sixth Circuit affirmed
Sargent’s sentence on January 9, 2012. [Record No. 95] Thereafter, Sargent filed an untimely
pro se motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. [Record No.
106] Sargent appealed the denial of his § 2255 motion to the Sixth Circuit, but was
unsuccessful. [Record No. 115] On September 14, 2016, the Sixth Circuit granted Sargent
permission to file a second or successive petition under § 2255 to determine whether he is
entitled to relief under the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015). [Record No. 118] Sargent’s § 2255 motion [Record No. 120] has been briefed
and is ripe for decision.
Under the Armed Career Criminal Act (hereafter, “the ACCA” or “the Act”), 18 U.S.C.
§ 924(e), any person who violates 18 U.S.C. § 922(g) and has three previous convictions for
violent felonies or serious drug offenses, faces a mandatory minimum sentence of fifteen years
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of imprisonment. § 924(e)(1). The Act defines “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year . . . that has as an element the use, attempted use,
or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). This is
known as the “force clause.” The Act further defines “violent felony” as a felony that
“otherwise involves conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii). This is the ACCA’s “residual clause.” In Johnson, the Supreme Court
determined that the residual clause was unconstitutionally vague.
135 S. Ct. at 2557.
Accordingly, crimes falling under the residual clause no longer count as predicate convictions
under the ACCA.
Sargent’s sentence was enhanced under the ACCA based on the following prior
convictions: arson; first-degree wanton endangerment;1 trafficking more than five pounds of
marijuana; and first-degree rape. Sargent’s conviction for trafficking more than five pounds
of marijuana qualifies as a serious drug offense and is not impacted by the holding in Johnson.
See § 924(e)(2)(A)(ii). Likewise, arson is an enumerated violent felony within the ACCA and
does not fall within the residual clause that was invalidated by Johnson.2
In 1987, Sargent was convicted of first-degree rape in Kentucky. The first-degree rape
statute can be violated in two ways: (1) by engaging in sexual intercourse with another person
by forcible compulsion or (2) by engaging in sexual intercourse with a person who is incapable
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The United States concedes that Sargent’s 1977 and 1988 convictions in Kentucky for wanton
endangerment are no longer valid predicate offenses under the ACCA, as wanton
endangerment qualified as a “violent felony” under the ACCA’s residual clause prior to
Johnson. See United States v. Meeks, 664 F.3d 1067, 1069–70 (6th Cir. 2012).
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Sargent contends that the arson conviction cannot be counted as an ACCA predicate because
the conviction was reversed. The Court need not analyze the argument, however, because
Sargent has provided no evidence that his arson conviction was reversed.
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of consent because of physical helplessness or age. K.R.S. § 510.040(1). Because first-degree
rape may or may not be accomplished through the use of force, the Court may apply the
modified-categorical approach and consult Sargent’s indictment to determine which portion of
the statute was violated. See Descamps v. United States, 133 S. Ct. 2276, 2284–85 (2013).
Here, Sargent was indicted for and convicted of multiple counts of “engaging in sexual
intercourse . . . through the use of forcible compulsion.” [Record Nos. 124–1, 124–2] In this
context, forcible compulsion is defined as sexual intercourse that was the result of an act or
threat of physical force. See Yates v. Com., 430 S.W.3d 883, 890 (Ky. 2014). Accordingly,
the conviction for first-degree rape falls under the ACCA’s “use of force” clause and is not
affected by the holding in Johnson. This conviction, along with Sargent’s previous convictions
for arson and marijuana trafficking, constitute the requisite three predicates for his
enhancement under the ACCA.
The Court notes that Sargent was also convicted of armed robbery in Clark County,
Indiana in 1988. This Indiana conviction was included in Sargent’s Presentence Investigation
Report and alluded to during the sentencing hearing, although not explicitly relied upon in
forming the basis for Sargent’s ACCA enhancement. While Sargent filed objections regarding
his previous convictions for arson and wanton endangerment, there was no objection regarding
the armed robbery conviction.
Indiana’s robbery statute can be violated by “using or threatening the use of force on
any person” or “by putting any person in fear.” I.C. § 35-42-5-1. The Seventh Circuit has
determined that, regardless of how the statute is violated, it is categorically a violent felony
under the ACCA’s “use of force clause.” United States v. Duncan, 833 F.3d 751, 752 (7th Cir.
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2016). Accordingly, Sargent’s 1988 Indiana conviction for armed robbery constitutes an
additional predicate conviction under the ACCA.
A Certificate of Appealability issues “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). When the district court has denied the constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists could differ with respect to the district
court’s resolution. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds that Sargent
has not raised a meritorious argument regarding a constitutional right. Reasonable jurists
would not conclude that the Court’s assessment is debatable and, therefore, a Certificate of
Appealability will not be issued.
Based on the foregoing analysis, it is hereby ORDERED as follows:
1.
Sargent’s Second or Successive Motion to Vacate under 28 U.S.C. § 2255 is
DENIED.
2.
A Certificate of Appealability shall not issue.
3.
A judgment in favor of the United States shall issue this date.
This 14th day of November, 2016.
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