Robinson v. USA

Filing 14

MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Michael G. Robinson. For the foregoing reasons, this Court denies Robsinson's § 2255 petition, without a hearing. IT IS FURTHER ORDERED this Court will not issue a certificate of appealability because Robinson has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 8/29/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MICHAEL G. ROBINSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:16CV00072 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence by Michael G. Robinson, a person in federal custody. On June
9, 2015, Robinson pled guilty before this Court to the offense of felon in possession of a
firearm and, on September 22, 2015, this Court sentenced Robinson to the Bureau of
Prisons for a term of 120 months. Robinson’s § 2255 motion is fully briefed and ripe for
disposition.
For the reasons set forth below, this Court will deny Robinson’s Petition.
Robinson’s conviction for Unlawful Use of a Weapon by Exhibiting is an “elements”
clause violent felony and did not fall under the Armed Career Criminal Act’s “residual
clause” definition of a violent felony; therefore, the holding in Johnson does not apply.
The holding of Johnson, invalidating the residual clause, has no bearing on Robinson’s
status as an Armed Career Criminal.
Furthermore, Robinson was originally sentenced on November 10, 2015, well
after the decision in Johnson was announced in June, 2015. The holding in Johnson was

well known to this Court and all the attorneys before Robinson was originally sentenced.
Johnson did not benefit Robinson at his original sentencing and does not benefit him
now.
To the extent Robinson raises other challenges to the classification of his assault
conviction as a violent felony, those claims are not based on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable, and therefore Robinson failed to make the requisite showing
under 28 U.S.C. § 2255 that he is entitled to relief under this habeas petition.
PROCEDURAL HISTORY
A. Underlying Conviction
On April 9, 2015, a Grand Jury in the Eastern District of Missouri, Southeastern
Division, returned a one-count indictment against Michael G. Robinson, charging him
with Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). (DCD 1,
Case Number 1:15 CR 00050 SNLJ) On June 9, 2015, Robinson appeared with his
attorney and pled guilty to the charge made in the Indictment pursuant to a written plea
agreement. (DCD 29)
Following the plea, a Presentence Investigation Report (“P.S.R.”) was prepared
which recommended that Robinson be classified as an Armed Career Criminal (“ACC”)
under 18 U.S.C. § 924(e), otherwise known as the Armed Career Criminal Act
(“ACCA”). The P.S.R. recognized four convictions of Robinson’s that were qualified as
violent felonies or serious drug offenses that were predicate convictions requiring
Robinson to be sentenced as an Armed Career Criminal. (P.S.R. ¶ 26) (“. . . the defendant
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has at least three prior convictions for a violent felony or serious drug offense, or both,
which were committed on different occasions. (Unlawful Use of a Weapon – Exhibiting,
Docket No.: 04F2-CR01034-01, Possession of a Controlled Substance With Intent to
Deliver, Docket No.: 05F2-CR00119-01, and two counts of Distribution of Cocaine Base,
Docket No.: 1:07CR00065JCH) Therefore, the defendant is an armed career criminal and
subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).”) The PSR
concluded that the Total Offense Level was 30. (P.S.R. ¶ 26-29) Robinson’s Criminal
History Category was IV and the resulting sentencing range was 180 months. (P.S.R. ¶
41, 72)
Robinson was determined to be an ACC based on the following four felony
convictions:
(1) Robinson was convicted on January 4, 2005, of the felony of Missouri
Unlawful Use of a Weapon by Exhibiting in the Circuit Court of Pemiscot County,
Missouri, in Case Number 04F2-CR01034-01. (P.S.R. ¶ 32)
(2) Robinson was convicted on March 18, 2005, of the felony of Missouri
Possession of a Controlled Substance With the Intent to Deliver in the Circuit Court of
Pemiscot County, Missouri, in Case Number 05F2-CR00119-01. (P.S.R. ¶ 33)
(3) Robinson was convicted on November 26, 2007, of the felony of Distribution
of Cocaine Base in the United States District Court for the Eastern District of Missouri,
Southeastern Division, in Case Number 1:07 CR 00065 JCH. (P.S.R. ¶ 36)
Robinson had other felony convictions, but those convictions are not relevant to
any discussion of whether he is an Armed Career Criminal.
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On November 10, 2015, the Government filed a Motion for a Downward
Departure on the basis that Robinson had provided substantial assistance to the
Government pursuant to U.S.S.G. § 5K1.1. (DCD 40) On November 10, 2015, this Court
granted the Government’s Motion for a Downward Departure, found Robinson to be an
Armed Career Criminal and sentenced him to a term of imprisonment of 120 months.
Robinson did not appeal his conviction or sentence.
B. Previous Post-Conviction Motion.
Robinson has not filed any previous petitions under 28 U.S.C. § 2255; therefore,
this Petition is considered a “first” habeas petition.
CURRENT CLAIM
In his current Application for Leave to File a Second Petition under 28 U.S.C. §
2255, and his amended Applications, Robinson attacks the classification of one of his
convictions as a predicate violent felony under the ACCA. He claims that his conviction
for Unlawful Use of a Weapon by Exhibiting is no longer a violent felony after Johnson.
Robinson does not contest that his three serious drug offenses were ACCA predicate
convictions, but this Court will discuss those in this Response. Robinson asserts that he
has the right to collateral review of his ACCA sentence pursuant to the holdings of
Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v. United States, 136 S.Ct.
1257 (2016).
The problem with Robinson’s request is that the holding of Johnson only
permitted attacks on ACCA sentences that were imposed due to the application of the
residual clause definition of a violent felony. All other grounds for the classification of a
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prior conviction as a violent felony, such as convictions under the “elements” clause
crimes or enumerated crimes, are still violent felony predicate convictions for ACCA
purposes, even after the holding of Johnson. Likewise, serious drug offenses that were
classified as ACCA predicate convictions, of which Robinson has three, are unaffected
by the holding of Johnson. Robinson has enough serious drug offense convictions that
they alone require his classification as an Armed Career Criminal. None of Robinson’s
predicate ACCA convictions were so classified due to the residual clause that was
invalidated by Johnson.
DISCUSSION
A. Required Threshold Showing for Relief.
A habeas petition filed by a federal prisoner must follow the requirements of 28
U.S.C. § 2255 in order to be considered. § 2255(a) permits a federal prisoner to file a
habeas petition on the grounds that their sentence was “imposed in violation of the
Constitution or laws of the United States, or that the Court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” Normally, the filing of such petitions is
limited to a one-year period after the defendant was originally sentenced. 28 U.S.C. §
2255(f)(1). The Government agrees that prisoners sentenced as Armed Career Criminals
under 18 U.S.C. § 924(e) may file habeas petitions under § 2255 beyond the one-year
limitation period if they can demonstrate that their sentences were imposed due to the
now-invalidated residual clause definition of a violent felony, pursuant to Johnson and
Welch. However, as argued below, since Robinson’s predicate ACCA convictions were
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not so classified because of the residual clause, he cannot establish that his sentence was
improperly imposed.
B. Johnson Does Not Apply.
Robinson’s Application relies on the Supreme Court’s June 2015 decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause in
the definition of a “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C.
§ 924(e)(2)(B) (“ACCA”), is unconstitutionally vague. The Supreme Court held in
United States v. Welch, 2016 WL 1551144 (U.S. Apr. 18, 2016) that the rule in Johnson
was a substantive new rule that is retroactive on collateral review. However, Robinson’s
classification as an ACC does not rest on the residual clause of the ACCA. Robinson’s
Unlawful Use of a Weapon by Exhibiting conviction is a violent felony under the
“elements” clause, a classification which is unaffected by Johnson. Robinson’s three
felony convictions for serious drug offenses that were used as ACCA predicate
convictions are unaffected by Johnson.
Title 18, United States Code, Section § 922(g)(1) provides that a person who has
been previously convicted of a felony is prohibited from possessing a firearm or
ammunition that has affected interstate commerce. Any person who unlawfully possesses
a firearm in violation of this section is subject to a term of imprisonment of up to ten
years. 18 U.S.C. § 924(d). However, the ACCA provides that any defendant convicted in
federal court of being a felon in possession of firearms and/or ammunition and who has
three prior felony convictions for violent felonies and/or serious drug offenses must
receive an enhanced punishment of a maximum of life and a minimum term of
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imprisonment of fifteen years. 18 U.S.C. § 924(e). Robinson was sentenced under 18
U.S.C. § 924(e) after this Court determined that he had at least three prior felony
convictions for violent felonies. A “violent felony” is defined as:
(B)
(i)
(ii)

the term “violent felony” means 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; or
is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis furnished).
The italicized section set out above, known as the “residual clause,” was
invalidated by the recent holding in Johnson v. United States, 135 S.Ct. 2551, 2556
(2015). However, the remaining definitions of a violent felony remain viable for
determining whether a defendant is an Armed Career Criminal. Those remaining sections
are subsection (i), commonly referred to as the “elements” or “use-of-force” clause, and
the un-italicized subsection (ii), which contains the enumerated crimes of burglary, arson
extortion or involving use of explosives.
Robinson was sentenced as an Armed Career Criminal, partially because the
district court found that he had a Missouri Unlawful Use of a Weapon by Exhibiting
conviction that qualified as a § 924(e) predicate conviction under the still-valid elements
clause, not the residual clause. Johnson, 135 S.Ct. at 2563. Because Robinson’s contested
conviction was an elements clause felony, and not a residual clause violent felony, he
may not use Johnson to attain a second sentencing hearing. (“We hold that imposing an
increased sentence under the residual clause of the Armed Career Criminal Act violates
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the Constitution’s guarantee of due process… Today’s decision does not call into
question application of the Act to the four enumerated offenses, or the remainder of the
Act’s definition of a violent felony.”) (Emphasis furnished).
The holding of Johnson did not invalidate Armed Career Criminal sentences that
were based on the elements clause or the enumerated crimes section. The fact that the
residual clause is unconstitutionally vague does not affect the validity of the classification
of Robinson’s unlawful use of a weapon conviction as a violent felony.
Robinson appears to contend that the holding of Johnson provides successive
collateral review of all Armed Career Criminal sentences and a review of their underlying
conviction documents, which is not the case. Only those cases where defendants can
demonstrate that one of their three predicate violent felony convictions was found to be a
violent felony under the residual clause have a proper claim under Johnson. Such is not
the case here.
C.

Robinson’s Conviction for Unlawful Use of a Weapon is Still a Violent
Felony.

In 2005, Robinson was convicted of the felony of Unlawful Use of a Weapon by
Exhibiting. The P.S.R. describes Robinson’s offense conduct as follows: “According to
court records, on or about September 29, 2004, the defendant exhibited a Sterling 22,
long rifle, semi-automatic weapon in the presence of one or more persons in an angry or
threatening manner.” (P.S.R. ¶ 32) That crime has specifically been held to be an
elements clause violent felony in a prior decision in this Circuit. See United States v.
Pulliam, 566 F.3d 784 (8th Cir. 2009).
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Under Missouri law a person commits the crime of unlawful use of
a weapon if he knowingly exhibits, in the presence of one or more
persons, any weapon readily capable of lethal use in an angry or
threatening manner. Mo.Rev.Stat. § 571.030.1(4).
...
Missouri’s crime of unlawful use of a weapon meets the statutory
definition of violent felony in § 924(e)(2)(B)(i), because it involves
the “use, attempted use, or threatened use of physical force against
the person of another.” United States v. McDile, 914 F.2d 1059,
1061-62 (8th Cir. 1990) (per curiam). Pulliam’s reliance on Begay
v. United States is misplaced because Begay analyzes the
the circumstances under which a previous crime falls under
§ 924(e)(2)(B)(ii).
Pulliam, 566 F.3d at 788.
The Court in Pulliam recognized that Missouri Unlawful Use of a Weapon is an
elements violent felony (§ 924(e)(2)(B)(i)) rather than a residual clause violent felony (§
924(e)(2)(B)(ii).
Citing Pulliam, which was decided before Johnson, the Eighth Circuit recently
held that Missouri Unlawful Use of a Weapon is a crime of violence for Guidelines
purposes. See United States v. Long, 2016 WL 3160948, * 1 (8th Cir. June 7, 2016).
We have reviewed the record, and we conclude that the court did not
err in determining that the section 571.030.1(4) offense was a “crime of
violence” under the Guidelines. See U.S. Sentencing Guidelines Manual §
4B1.2(a)(1) (defining “crime of violence”); United States v. Pulliam, 566
F.3d 784, 788 (8th Cir.) (holding that § 571.030.1(4) “meets the statutory
definition of violent felony in [18 U.S.C.] § 924(e)(2)(B)(i), because it
involves the ‘use, attempted use, or threatened use of physical force against
the person of another’ ”), cert. denied, 558 U.S. 1035 (2009); United States
v. Vincent, 575 F.3d 820, 826 (8th Cir. 2009) (“The statutory definition of
‘violent felony’ is viewed as interchangeable with the guidelines definition
of ‘crime of violence.’” (citations to quoted cases omitted)), cert. denied,
560 U.S. 927 (2010).
Long, 2016 WL 3160948, at * 1.
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The decision in Long was announced after the holding of Johnson and still decided
that Robinson’s statute of conviction described a violent felony and a crime of violence.
The charge on which Robinson’s conviction was based states as follows:
The Prosecuting Attorney of the County of Pemiscot, State of
Missouri, upon information and belief, charges that the defendant,
in violation of Section 571.030 RSMo., committed the class D
felony of unlawful use of a weapon, punishable upon conviction
under Sections 558.011 and 560.011, RSMo., in that on or about
September 29, 2004, in the County of Pemiscot, State of Missouri,
the defendant knowingly exhibited, in the presence of one or more
persons a Sterling 22 long rifle semi-automatic, a weapon readily
capable of lethal use, in an angry or threatening manner.
This charge is clearly the same charge as was found to be an elements clause
violent felony in Pulliam and an elements clause crime of violence in Long. Robinson
does not state any reasons why this Circuit’s decisions in Pulliam and/or Long are not
still valid today.
This Circuit has already held that Missouri Unlawful Use of a Weapon by
Exhibiting in an Angry or Threatening Manner is both a violent felony (for § 924(e)
purposes) and a crime of violence (as defined by U.S.S.G. § 4B1.1(a)). Significantly, this
crime is not a residual clause violent felony. Because it is not a residual clause violent
felony, the holding of Johnson is simply not applicable to determine whether the
conviction was misclassified.
Furthermore, Robinson was sentenced on November 10, 2015, long after the
holding of Johnson was announced in June, 2015. This Court and Robinson’s attorney
actually considered the holding of Johnson before Robinson was sentenced the first time.
This is not a case where there was an intervening case after the defendant’s sentence.
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Robinson is making the argument that a case that was decided before he was sentenced
should be re-considered to affect his sentence. The holding of Johnson was considered at
Robinson’s original sentencing hearing, but it did not result in a benefit to Robinson, the
same result as would happen if Robinson were to be resentenced today.
D.

Robinson’s Three Serious Drug Offenses Would Make Robinson an
Armed Career Criminal Even if He Had No Other Convictions.

In addition to his violent felony conviction for Unlawful Use of a Weapon by
Exhibiting, Robinson has three serious drug offense convictions that, by themselves,
would make him an Armed Career Criminal. As noted earlier, a serious drug offense is a
category of crimes that are also classified as ACCA predicate offenses. A serious drug
offense is defined as:
(i)

(ii)

an offense under the Controlled Substances Act (21 U.S.C.
801 et seq.), the Controlled Substances Import and Export Act
(21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a
maximum term of imprisonment of ten years or more is
prescribed by law; or
an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)), for which a
maximum term of imprisonment of ten years or more is
prescribed by law.

18 U.S.C. § 924(e)(2)(A).
Robinson has convictions under both subsections in that he has a qualifying state
conviction and a qualifying federal conviction. Robinson’s state conviction was set out in
the P.S.R., ¶ 33. That charge was that Robinson was in Possession of a Controlled
Substance With the Intent to Deliver. A copy of his conviction documents for that charge
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is attached to this Response as Exhibit 2. Those documents reflect that Robinson’s charge
was for Possession of Marijuana With the Intent to Distribute, a class B felony, a felony
that has a range of punishment of five to fifteen years in prison. RSMo. § 558.011.1(2).
Marijuana is a substance that is a controlled substance under the federal Controlled
Substances Act:
Schedule I controlled substances:
(10) Marijuana.
21 U.S.C. § 812(c)(Schedule I).
Since the maximum range of punishment for that charge exceeds ten years, and
because it was a conviction for possession of a federally controlled substance with the
intent to deliver, this conviction was a “serious drug offense” and is an ACCA predicate
conviction.
Robinson also has two convictions for federal controlled substance offenses. The
P.S.R. reflects that, on November 26, 2007, Robinson was convicted of two counts of
Distribution of Cocaine Base. The P.S.R. shows that Count I of that charge occurred on
August 4, 2006, and that the offense conduct for Count II occurred on August 9, 2006.
Each of those convictions involved conduct occurring on “occasions separate from one
another” in that the offense conduct for each occurred on a different day. Each count of
the conviction counts separately as a conviction for ACCA purposes. See United States v.
Ross, 569 F.3d 821, 823 (8th Cir. 2009) (finding that defendant’s two drug sale
convictions that occurred on different days counted as two separate ACCA convictions
even though both were charged as different counts in the same information.)
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Robinson has a total of three serious drug offenses. Just those convictions by
themselves would require the classification of Robinson as an Armed Career Criminal,
even without considering whether his conviction for Unlawful Use of a Weapon by
Exhibiting was a violent felony. Robinson was, and still is, an Armed Career Criminal.
CONCLUSION
For the foregoing reasons, this Court denies Robsinson’s § 2255 petition, without
a hearing.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Robinson has not made a substantial showing of the denial of a
federal constitutional right.
Dated this 29th day of August, 2016.

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

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