Payne v. USA

Filing 29

MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Ricky Lynn Payne. IT IS HEREBY ORDERED that Movant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in F ederal Custody (ECF 1) is DENIED, and his claim is DISMISSED, with prejudice and that a separate Order of Dismissal with accompany this Memorandum and Order; and IT IS FURTHER ORDERED that, because Movant cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Signed by District Judge Jean C. Hamilton on 11/14/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

RICKY LYNN PAYNE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:15CV157JCH

MEMORANDUM AND ORDER
This matter is before the Court on Movant Ricky Lynn Payne’s Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody, based on Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF
1). Movant has also filed a Supplement to his Motion. (ECF 21). The government
has filed a Response. (ECF 22). Movant has not filed a timely Reply. As such
Movant’s Motion is ready for disposition. For the reasons set forth below, the
Court will deny the Motion.
BACKGROUND
On December 13, 2005, Movant was charged, by Indictment, with being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
The Indictment charged that, on or about July 23, 2005, in Dunklin County, within

the Eastern District of Missouri, Movant possessed a “.38 Special caliber
derringer”; that Movant had been previously convicted, in Missouri, on August 26,
1981, and on January 13, 1993, of the felonies of Burglary and Stealing; that
Movant had also been previously convicted, in Arkansas, on January 26, 1987, of
the felony of Breaking and Entering; and that each of these prior three felonies was
punishable by a term of imprisonment exceeding one year. United States v. Payne,
Case No. 1:05CR182-1-JCH (E.D. Mo.) (ECF 1).
On February 27, 2006, Movant entered into a written plea agreement, in
which he agreed that he had previously been convicted of the felonies as alleged in
the Indictment. In exchange for Movant’s agreeing to plead guilty, as charged in
the Indictment, the Government agreed that no further federal prosecution would
be brought in the Eastern District of Missouri in connection with the offense
conduct. Payne, Case No. 1:05CR182-1-JCH (ECF 25 at 2, 8).
The Probation Office thereafter prepared a Presentence Investigation Report
(PSR). (ECF 1.1 at 16-34). The PSR stated that Movant had at least three prior
violent felony convictions and was subject to an enhanced sentence under the
provisions of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (a
person who violates § 922(g) and has 3 prior violent felony convictions shall be
sentenced for not less than fifteen years); it recommended that Movant be
sentenced as an armed career criminal (ACC); and it did not specify which of
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Movant’s prior convictions constituted violent felonies for purposes of the ACCA.
(ECF 1.1 at 20). On May 22, 2006, the Court sentenced Movant to 188 months in
prison. Payne, Case No. 1:05CR182-1-JCH (ECF 33).
On September 8, 2015, following the Supreme Court’s decision in Johnson,
135 S.Ct. 2551, Movant filed his § 2255 Motion in which he argues that his
Arkansas Breaking and Entering felony conviction is no longer a valid qualifying
prior felony conviction under the ACCA, 18 U.S.C. § 924(e), and that, as such, he
is being unlawfully detained because of “a wrongful imposition of sentence
enhancement under the [ACCA].” (ECF 1 at 9). In the Supplement to his § 2255
Motion, Movant also argues that Mathis v. United States, 136 S. Ct. 2243 (2016),
supports his claim. (ECF 21). Movant does not contest that the two Missouri
second degree burglary convictions specified in the Indictment and the Plea
Agreement qualify as predicate violent felony offenses under the ACCA. The
Government argues, in its Response, that, even excluding Movant’s Arkansas
Breaking and Entering felony conviction, he still qualified as an ACC because he
had three Missouri second degree burglary convictions which remain qualifying
predicate offenses under the ACCA. For the reasons discussed below, the Court
agrees with the Government, and will, therefore, deny Movant’s Motion.
DISCUSSION
As explained in Welch v. United States, 136 S.Ct. 1257, 1261 (2016):
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Federal law prohibits any felon—meaning a person who has been
convicted of a crime punishable by more than a year in prison—from
possessing a firearm. 18 U.S.C. § 922(g). A person who violates that
restriction can be sentenced to prison for up to 10 years. § 924(a)(2).
For some felons, however, the Armed Career Criminal Act imposes a
much more severe penalty. Under the Act, a person who possesses a
firearm after three or more convictions for a “serious drug offense” or
a “violent felony” is subject to a minimum sentence of 15 years and a
maximum sentence of life in prison. § 924(e)(1). Because the
ordinary maximum sentence for a felon in possession of a firearm is
10 years, while the minimum sentence under the Armed Career
Criminal Act is 15 years, a person sentenced under the Act will
receive a prison term at least five years longer than the law otherwise
would allow.
In particular, the ACCA, 18 U.S.C. § 924(e)(1) provides:
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).
The ACCA, 18 U.S.C. § 924(e)(2) further provides:
(B) the term “violent felony” means 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.
The italicized portion of § 9249(e)(2)(B(ii) is known as the “residual
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clause.”
In Descamps v. United States, 133 S.Ct. 2276, 2281 (2013), the Supreme
Court endorsed the “categorical approach” for determining whether a past
conviction is “for a violent felony,” under the ACCA, 18 U.S.C. § 924(e). The
Court further noted that the categorical approach “compare[s] the elements of the
statute forming the basis of the defendant’s conviction with the elements of the
‘generic’ crime - i.e., the offense as commonly understood,” and held that a “prior
conviction qualifies as an ACCA predicate only if the statute's elements are the
same as, or narrower than, those of the generic offense.” Id.
In Johnson, 135 S.Ct. at 2557, the Court reaffirmed that the categorical
approach should be used to determine whether an offense qualifies as a violent
felony under the ACCA.

The Court explained that the categorical approach

requires that a court “assess[] whether a crime qualifies as a violent felony in terms
of how the law defines the offense and not in terms of how an individual offender
might have committed it on a particular occasion.” Id. at 2257. (internal quotation
marks and citation omitted). Because deciding whether a crime is covered by the
residual clause requires a court to go beyond whether the creation of risk is an
element of the crime and to go beyond whether the the physical acts that make up
the crime will injure someone, the Court held that imposing an increased sentence
under the residual clause of the ACCA is unconstitutionally vague. Id.
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As further explained by the Court in Welch, 136 S. Ct. at 1262:
The vagueness of the residual clause rests in large part on its operation
under the categorical approach. The categorical approach is the
framework the Court has applied in deciding whether an offense
qualifies as a violent felony under the Armed Career Criminal Act.
See id., at ––––, 135 S.Ct., at 2556–2557. Under the categorical
approach, “a court assesses whether a crime qualifies as a violent
felony ‘in terms of how the law defines the offense and not in terms of
how an individual offender might have committed it on a particular
occasion.’” Ibid. (quoting Begay, supra, at 141, 128 S.Ct. 1581). For
purposes of the residual clause, then, courts were to determine
whether a crime involved a “serious potential risk of physical injury”
by considering not the defendant's actual conduct but an “idealized
ordinary case of the crime.” 576 U.S., at ––––, 135 S.Ct., at 2561.
The Court's analysis in Johnson thus cast no doubt on the many laws
that “require gauging the riskiness of conduct in which an individual
defendant engages on a particular occasion.” Ibid. The residual
clause failed not because it adopted a “serious potential risk” standard
but because applying that standard under the categorical approach
required courts to assess the hypothetical risk posed by an abstract
generic version of the offense. In the Johnson Court's view, the
“indeterminacy of the wide-ranging inquiry” made the residual clause
more unpredictable and arbitrary in its application than the
Constitution allows. Id., at ––––, 135 S.Ct., at 2557. “Invoking so
shapeless a provision to condemn someone to prison for 15 years to
life,” the Court held, “does not comport with the Constitution's
guarantee of due process.” Id., at ––––, 135 S.Ct., at 2560.
In Welch, 136 U.S. at 1165, the Court also held that Johnson announced a
new substantive rule of law that has retroactive effect in cases on collateral review.
The Arkansas “Breaking or Entering” statute, Ark. Code Ann. § 5-39-202
(previously Ark. Code Ann. § 41-3003), which was one of the three predicate
felonies specified in Movant’s Indictment and Plea Agreement provides:
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(a). A person commits the offense of breaking and entering if for the
purpose of committing a theft or felony he enters or breaks into any
building, structure vehicle, vault, safe, cash register, money vending
machine, product dispenser, money depository, safety deposit box,
coin telephone, coin box, or other similar container, apparatus, or
equipment.
(b) Breaking or entering is a Class D felony.
The Government does not dispute Movant’s assertion that, pursuant to
Johnson, 135 S.Ct. at 2556, Movant’s conviction under the Arkansas Breaking or
Entering Statute falls within the ACCA’s residual clause and that, therefore, it
cannot serve as a predicate offense to Movant’s being found an ACC under 18
U.S.C. § 924(e)(2)(B). Rather, the Government contends that Petitioner had two
additional qualifying violent felonies which were not specified in the Indictment or
Plea Agreement and, therefore, he was properly sentenced as an ACC. Notably,
Movant has not taken issue with the Government’s contention that he has two
convictions, in addition to those specified in the Indictment and Plea Agreement,
which qualify as predicate violent felony convictions for his being found an ACC
pursuant to 18 U.S.C. § 924(e)(2)(B).
Movant’s additional felonies are both for Second Degree Burglary, in
violation of Mo. Rev. Stat. § 569.170, the first of which Movant was allegedly
found guilty on February 13, 1980, and the second of which he was found guilty
and for which he was sentenced, on August 24, 2005. (ECF 22 at 6-7). Although
the Government has submitted evidence that Movant was charged, in January
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1980, with violating Mo. Rev. Stat. § 569.1701 for “knowingly enter[ing]
unlawfully a building . . . for the purpose of committing stealing therein,” the
Government has not documented nor substantiated its assertion regarding
Movant’s alleged February 13, 1980 conviction. (ECF 22.1 at 1).
The Government, however, has provided documentation to substantiate
Movant’s August 24, 2005 conviction, for which he was sentenced, on that same
date, to six years’ imprisonment. (ECF 22.3). The charged offense for the August
24, 2005 conviction, states that, “on or about July 16, 2005,” Movant “knowingly
entered unlawfully a building . . . for the purpose of committing stealing therein,”
in violation of Mo. Rev. Stat. § 569.170. (ECF 22.3 at 6) (emphasis added).
Notably, Movant’s PSR considered Movant’s August 24, 2005 conviction as part
of his criminal history (ECF 1.1 at 28), and Movant did not object to its doing so
upon his accepting the PSR (ECF 1.1 at 35). The Court will, therefore, consider
whether Petitioner’s August 24, 2005 conviction may properly be considered a
predicate offense for purposes of his being found an ACC.
Prior to Johnson, in Taylor v. United States, 495 U.S. 575, 599 (1990), the
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Mo. Rev. Stat. § 569.170, Burglary in the second degree, provides:
1. A person commits the offense of burglary in the second degree
when he or she knowingly enters unlawfully or knowingly remains
unlawfully in a building or inhabitable structure for the purpose of
committing a crime therein.
2. The offense of burglary in the second degree is a class D felony.
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Supreme Court held that for a previous burglary to qualify as a enumerated violent
crime under the ACCA, 18 U.S.C. § 924(e)(2)(B), it must be for the “unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” In Taylor, 459 U.S. at 599, the Court made it clear that only the
“unlawful or unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime” could qualify as an enumerated violent crime.
Also prior to Johnson, in United States v. Olsson, 742 F.3d 855, 856 (8th Cir.
2014), upon remand by the Supreme Court for consideration pursuant to
Descamps, the Eighth Circuit held because the basic elements of “generic
burglary” are “unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime,” the basic elements of second-degree
burglary under Missouri’s second degree burglary statute, Mo. Rev. Stat. §
569.170, “are the same as those of the generic burglary offense.” As such, the
Eighth Circuit held that a prior conviction under Mo. Rev. Stat. § 569.170
“qualifies as a ‘crime of violence’ under the categorical approach.” Olsson, 742
F.3d at 856. The court held, therefore, that a conviction under Mo. Rev. Stat. §
569.170 properly serves as the basis for the sentencing enhancement. Id. See also
United States v. Phillips, 817 F.3d 567, 569-70 (8th Cir. 2016) (holding that the
district court properly found the defendant’s Missouri second-degree burglary
conviction was a predicate felony under § 924(e) and properly found him to be an
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ACC).
Although Movant argues that Mathis v. United States, 136 S. Ct. 2243
(2016), supports his position regarding his Arkansas conviction, the Court will
nonetheless consider whether Mathis is relevant to whether Movant’s convictions
pursuant to Mo. Rev. Stat. § 569.170 qualify as prior violent felonies under the
ACC. In Mathis, the Court considered whether the defendant’s conviction under
the Iowa burglary statute qualified as a violent felony for purposes of §
924(e)(2)(B)(ii). Unlike Missouri’s second-degree burglary statute, under the Iowa
statute, the elements of burglary were broader than those of generic burglary.
While “[t]he generic offense [of burglary] requires unlawful entry into a “building
or other structure,” “Iowa's statute, by contrast, reache[d] a broader range of
places: ‘any building, structure, [or] land, water, or air vehicle.’” Id. at 2250
(quoting Taylor, 495 U.S. at 598). “The Iowa statute define[d] one crime, with one
set of elements, broader than generic burglary – while specifying multiple means
of fulfilling its locational element, some but not all of which (i.e. buildings and
other structures, but not vehicles) satisfied the generic definition.” Mathis, 138
S.Ct. at 2251. Because the elements of Iowa’s burglary statute were broader then
generic burglary, the Court concluded that the defendant’s Iowa “conviction under
that law could not give rise to an ACCA sentence.” Id. at 2257. Because seconddegree burglary under Mo. Rev. Stat. § 569.170 is not broader than generic
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burglary, the Court’s decision in Mathis is relevant to the outcome Movant’s
Motion.
The Court finds, therefore, that, at the time he plead guilty, was convicted,
and was sentenced, Movant had three Missouri convictions for second-degree
burglary under Mo. Rev. Stat. § 569.170; that these offenses qualified as crimes of
violence under 18 U.S.C. § 924(e)(2)(B); and that Movant was properly sentenced
as an ACC under the sentencing enhancement of 18 U.S.C. § 924(e)(1). As such,
the Court further finds that the claim made by Movant in his Motion is without
merit and that he should be denied the relief he seeks.
CONCLUSION
For the reasons discussed above, the Court finds that Movant was properly
sentenced as an ACC in that his three previous convictions for second-degree
burglary under Mo. Rev. Stat. § 569.170 qualified as enumerated violent crimes
under the ACCA, 18 U.S.C. § 924(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that Movant’s Motion under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF 1)
is DENIED, and his claim is DISMISSED, with prejudice and that a separate
Order of Dismissal with accompany this Memorandum and Order; and
IT IS FURTHER ORDERED that, because Movant cannot make a
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substantial showing of the denial of a constitutional right, the Court will not issue a
certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Dated this 14th Day of November 2017.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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