Koeller v. USA

Filing 5

MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner David Koeller. For the foregoing reasons, this Court denies Koeller's § 2255 petition, without a hearing, on the basis of the record which shows that there was no error in classifying Koeller as an Armed Career Criminal. Signed by District Judge Stephen N. Limbaugh, Jr on 8/26/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DAVID KOELLER,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:14CV00095 SNLJ

MEMORANDUM AND ORDER
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct
sentence by David Koeller, a person in federal custody. He alleges that his classification
as an Armed Career Criminal was improper. His argument is that the decision issued in
Descamps v. United States, --U.S.--, 133 S.Ct. 2276 (2013), altered the way his felony
convictions for Missouri Second Degree Burglary should be analyzed to determine
whether they are violent felonies pursuant to 18 U.S.C. § 924(e). The motion is fully
briefed and ripe for disposition.
Procedural History.
Koeller was indicted on September 3, 2009, on one count of being a Felon in
Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Koeller was
arrested on the charge and made his initial appearance pursuant to a writ on September
10, 2009. At his arraignment, Koeller pled not guilty to the offense. On February 19,
2010, Koeller entered a guilty plea before this Court. During that plea, Koeller admitted
that he had been convicted of the following three crimes:

(1) On November 29, 2004, in the Circuit Court of Cape Girardeau County,
Missouri, in Case Number 04G9-CR01668, for the felony of Second Degree
Burglary;
(2) On November 29, 2004, in the Circuit Court of Cape Girardeau County,
Missouri, in Case Number 04G9-CR01385, for the felony of Second Degree
Burglary; and
(3) On November 29, 2004, in the Circuit Court of Cape Girardeau County,
Missouri, in Case Number 02CR737312, for the felony of Second Degree
Burglary.
Koeller also admitted that, on July 8, 2009, he was in possession of a handgun that
was manufactured in a location other than the State of Missouri and that the handgun
affected interstate commerce. This court set a sentencing hearing for May 14, 2010.
After Koeller’s guilty plea, a Presentence Investigation Report (P.S.R.) was
prepared by United States Probation Officer Sherry A. Persinger-Miller. That report
recommended that Koeller be classified as an Armed Career Criminal pursuant to
U.S.S.G., § 4B1.4 and 18 U.S.C. 924(e). Koeller’s Total Offense Level was set at 30, due
to this classification. His minimum term of imprisonment was 180 months, again
pursuant to the statute.
The sentencing hearing was held on May 14, 2010. Koeller was sentenced to a
term of imprisonment of 180 months, followed by three years of supervised release.
Koeller was also ordered to pay a special assessment of $100.00.

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On May 26, 2010, the Government filed a motion in Koeller’s case, seeking a
downward departure. That motion was granted on June 9, 2010. Koeller was re-sentenced
to a term of imprisonment of 120 months. Koeller did not appeal his conviction or
sentence.
Need For Evidentiary Hearing And Burden Of Proof.
28 U.S.C. § 2255 provides in pertinent part:
Unless the motion and the files and records of the case conclusively show that the
prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.

28 U.S.C. § 2255.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Court states:
The motion, together with all the files, records, transcripts, and correspondence
relating to the judgment under attack, shall be examined promptly by the judge to
whom it is assigned. If it plainly appears from the face of the motion and any
annexed exhibits in the prior proceedings in the case that the movant is not entitled
to relief in the district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.
When a petition is brought under Section 2255, the petitioner bears the burden of
establishing the need for an evidentiary hearing. In determining whether petitioner is
entitled to an evidentiary hearing the court must take many of petitioner’s factual
averments as true, but the court need not give weight to conclusory allegations, selfinterest and characterizations, discredited inventions, or opprobrious epithets. United
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is unnecessary when a
Section 2255 motion (1) is inadequate on its face, or (2) although facially adequate is
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conclusively refuted as to the alleged facts by the files and the records of the case. Id. at
225-6. See also, United States v. Robinson, 64 F.3d 403 (8th Cir. 1995) and Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995).
When all the information necessary for the court to make a decision with regard to
claims raised in a 2255 motion is included in the record, there is no need for an
evidentiary hearing. Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993). An
evidentiary hearing is unnecessary where the files and records conclusively show
petitioner is not entitled to relief. United States v.Schmitz, 887 F.2d 843, 844 (8th Cir.
1989); Dall v. United States, 957 F.2d 571, 573 (8th Cir. 1992).
Koeller’s Claim and Argument.
Koeller was convicted in three separate cases of the felony of Second Degree
Burglary. Koeller admits his convictions, but claims that new case law dictates that his
burglary convictions are no longer violent felonies.
In order to be properly classified as an Armed Career Criminal for purposes of 18
U.S.C. § 924(e), a defendant must have three prior violent felony convictions. The Armed
Career Criminal Act applies to defendants who are convicted of being a felon in
possession of a firearm after three prior convictions for a violent felony. United States v.
Tucker, 740 F.3d 1177, 1179 (8th Cir. 2014); 18 U.S.C. §924(e). A violent felony is a
felony that “(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another (commonly referred to as the ‘use of force’ clause); or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves

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conduct that presents a serious potential risk of physical injury to another (commonly
referred to as the ‘otherwise’ clause). Tucker, 740 F.3d at 1179; 18 U.S.C. §924(e)(2)(B).
To determine whether a past conviction qualifies as a violent felony, courts apply
the “categorical approach” under which they look only to the fact of conviction and the
statutory definition of the prior offense. Tucker, 740 F.3d at 1179, citing Taylor v. United
States, 495 U.S. 575, 602, 110 S.Ct. 2143 (1990). However, where a statute of conviction
sets out one or more elements of the offense in the alternative, the statute is considered
“divisible” for Armed Criminal Career Act purposes. Tucker, 740 F.3d at 1179, citing
Descamps v. United States, 570 U.S. --, 133 S.Ct. 2276, 2281 (2013). If one alternative in
a divisible statute qualifies as a violent felony, but another does not, courts apply the
“modified categorical approach” to determine under which portion of the statute the
defendant was convicted. Tucker, 740 F.3d at 1179-80. The modified categorical
approach permits sentencing courts to consult a limited class of documents, such as
indictments and jury instructions, to determine which alternative formed the basis of the
defendant’s prior conviction. Tucker, 740 F.3d at 1180.
Sentencing courts may not apply the modified categorical approach when the
crime of which the defendant was convicted has a single, indivisible set of elements.
United States v. Bankhead, No. 12-4009, 2014 WL 539754, *2 (8th Cir. Feb. 12, 2014),
citing Descamps, 133 S.Ct. at 2282. In the case of indivisible statutes, the district court
may not use the modified categorical approach or consider the relevant documents
(indictments, plea agreements, jury instructions, etc.) under Shepard v. United States, 544
U.S. 13, 125 S.Ct. 1254 (2005).
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The initial question to resolve, after Descamps, is whether the defendant’s statute
of conviction for his prior conviction is divisible or nondivisible. Koeller’s argument is
that Missouri’s statutes defining Second Degree Burglary are nondivisible, and therefore,
under Descamps, may not be considered as violent felony predicates. Koeller’s argument
is without merit.
The Eighth Circuit Court of Appeals has resolved this issue in United States v.
Olsson, 742 F.3d 855 (8th Cir. 2014). In that case, Olsson raised exactly the same issue
as Koeller, that his former Missouri felony conviction for Second Degree Burglary
should not be classified as a violent felony as that term is defined in 18 U.S.C. § 924(e)
after the decision in Descamps. The Olsson court rejected that claim, finding that the
basic elements of Missouri Second Degree Burglary are the same as those of generic
burglary, which is the unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime. Ollson, 742 F.3d at 856. Olsson was found to
have been validly classified as an Armed Career Criminal based on his felony conviction
for Missouri Second Degree Burglary.
Koeller’s argument fails for the same reasons that Olsson’s appeal failed. Missouri
Second Degree Burglary is a violent felony. Olsson stands for the proposition that a
felony conviction for Missouri Second Degree Burglary is still a violent felony, even
after Descamps. Koeller was properly sentenced as an Armed Career Criminal.
Koeller Cannot Collaterally Attack the Basis for His Former Convictions.

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Koeller claims, in his Petition, that his third conviction for Second Degree
Burglary was actually an entry into a building where he was a custodian. He argues that
his crime was some kind of breach of trust and should not be a violent felony.
Koeller’s argument as to the nature of his prior conviction may not be considered
by this Court. Defendants may not collaterally attack their prior convictions used for
sentencing enhancements, except for the narrow situation where the defendant is claiming
that his conviction was obtained in violation of his right to counsel. See United States v.
Levering, 431 F.3d 289, 294 (8th Cir. 2005); Custis v. United States, 114 S.Ct. 1732,
1738-39 (1994). Koeller has not raised any issue as to whether he was represented by
counsel at any of his former convictions and they may all be presumed to be valid for
sentencing purposes.
CONCLUSION
For the foregoing reasons, this Court denies Koeller’s § 2255 petition, without a
hearing, on the basis of the record which shows that there was no error in classifying
Koeller as an Armed Career Criminal.
SO ORDERED this 26th day of August, 2014.

_____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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