Kemp v. USA

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the supplemental motion of Bobby Joe Kemp to vacate, set aside, or correct sentence [Doc. # 9] is granted in part and denied in part. IT IS FURTHER ORDERED that a copy of this Memorandum and Order shall be filed in the underlying criminal case, United States v. Bobby Joe Kemp, No. 1:13-CR-00022 (CEJ). An order vacating the judgment on Count II will be entered separately. Signed by District Judge Carol E. Jackson on 6/2/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BOBBY JOE KEMP,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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) No. 1:14-CV-135 (CEJ)
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MEMORANDUM AND ORDER
This matter is before the Court on the supplemental motion of Bobby Joe
Kemp to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. ' 2255. The
United States has filed a response.
I. Background
On May 20, 2013, Kemp pled guilty to conspiracy to distribute 500 grams or
more of methamphetamine, in violation of 21 U.S.C. § 846 (Count I) and possessing
a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count II). Because
of the quantity of methamphetamine, the penalties for the offense in Count I
included a mandatory minimum sentence of 10 years’ imprisonment. See 21 U.S.C.
§ 841(b)(1)(A).
degree.

Kemp had three prior Missouri convictions for burglary second

Based on the prior felony convictions, Kemp was found to be a career

offender with respect to Count I (see U.S.S.G. §4B1.1) and an armed career criminal
with respect to Count II (see 18 U.S.C. §924(e)(1) and U.S.S.G. §4B1.4(a)). As a
result of the armed career criminal designation, Kemp faced a mandatory minimum
sentence of 15 years’ imprisonment for the firearm offense. 18 U.S.C. §924(e)(1).

On November 26, 2013, Kemp was sentenced to concurrent terms of 210 months’
imprisonment.1
II. Discussion
In the supplemental motion, Kemp seeks relief based on Mathis v. United
States, ___ U.S. ___, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), in which the
Supreme Court held that a prior conviction does not qualify as the generic form of a
predicate violent felony listed in the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e), when the elements of the statute on which the prior conviction is based are
broader than the elements of the generic form of the offense. Mathis, 136 S,Ct. at
2257.

In in its response, the United States concedes that in light of the Mathis

decision, Kemp’s conviction for second degree burglary of a building or inhabitable
structure does not qualify as generic burglary under the ACCA.

Therefore, Kemp

does not have the requisite number of violent felony convictions to support the
armed career criminal designation with respect to Count II. The mandatory minimum
sentence of 15 years’ imprisonment under § 924(e)(1) no longer applies. Instead,
the maximum sentence of imprisonment for the felon in possession offense is ten
years. 18 U.S.C. § 924(a)(2).

Kemp must be re-sentenced on Count II because the

210-month sentence he received exceeds the statutory maximum for the offense.
Because Mathis involved the ACCA, the decision no application to the 210month sentence of imprisonment Kemp received on Count I.

As discussed above,

Kemp was designated a career offender under U.S.S.G. 4B1.1(a) with respect to the
methamphetamine offense in Count I. Section 4B1.1(a) provides that a defendant is a
career offender if (1) he was at least 18 years old when he committed the offense of
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The imprisonment range under the applicable sentencing guidelines was 324-405 months.

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conviction; (2) the offense of conviction is either a crime of violence or a controlled
substance offense; and (3) he has at least two prior felony convictions for either a crime
of violence or a controlled substance offense.

As relevant here, the term “crime of

violence” in U.S.S.G. §4B1.2(a) is defined as a felony offense that “has as an element the
use, attempted use, or threatened use of physical force against the person of another” or
that is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use or unlawful possession of a firearm as
defined in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).
In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569
(2015), the Supreme Court held that the residual clause of the ACCA, which defined
“violent felony” as an offense that “otherwise involves conduct that presents a serious
potential risk of physical injury to another,” was unconstitutional.

The decision in

Johnson is inapplicable in this case, because the Supreme Court has held that the
Sentencing Guidelines are not subject to a void-for-vagueness challenge under the Due
Process Clause and, more specifically, that the “crime of violence” clause of U.S.S.G.
4B1.2(a) is not void for vagueness. Beckles v. United States, ___ U.S. ___, 137 S. Ct.
886, 895 (2017).

Accordingly, Kemp is not entitled to be re-sentenced on Count I.
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For the reasons set forth above, the judgment entered on Count II will be
vacated, and Kemp will be re-sentenced on that count without application of the
ACCA.
Accordingly,

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IT IS HEREBY ORDERED that the supplemental motion of Bobby Joe Kemp
to vacate, set aside, or correct sentence [Doc. # 9] is granted in part and denied
in part.
IT IS FURTHER ORDERED that a copy of this Memorandum and Order shall
be filed in the underlying criminal case, United States v. Bobby Joe Kemp, No. 1:13CR-00022 (CEJ).
An order vacating the judgment on Count II will be entered separately.

__________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of June, 2017.

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