Shores v. United States of America

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the amended motion of Mark Edwin Shores to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. ' 2255 [Doc. # 24 ] is denied. Signed by District Judge Carol E. Jackson on 5/16/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK EDWIN SHORES,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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) No. 4:14-CV-1019 (CEJ)
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MEMORANDUM AND ORDER
This matter is before the Court on the amended motion of Mark Edwin Shores
to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. ' 2255.
After a jury found Shores guilty of multiple controlled substances and firearms
offenses, he was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. §

924(e), to an aggregate 322-month term of imprisonment.

The judgment was

affirmed on appeal. United States v. Shores, 700 F.3d 366 (8th Cir. 2012), cert. denied,
133 S.Ct. 2780 (2013). Shores’ status as an armed career criminal was premised on

his two prior Michigan felony convictions for possession with intent to deliver cocaine
and a Michigan felony conviction for assault with a dangerous weapon. In the instant
amended motion, Shores argues that in light of the decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), assault with a dangerous weapon is no longer a
predicate offense that may be used to enhance a sentence under the ACCA.
In Johnson, the Supreme Court held that the “residual clause” of the ACCA,
18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. The ACCA enhances the
punishment for firearms offenses under 18 U.S.C. § 922(g) when the defendant has
at least three prior convictions for a serious drug offense or a “violent felony.” The

term “violent felony” is defined in the ACCA as felony offense that “(1) 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 the 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 added).

The

“otherwise involves” language of the ACCA is the residual clause that the Supreme
Court found unconstitutional. Johnson, 135 S.Ct. at 2563.
Shores requested and was granted additional time to file a supplemental brief
in support of his amended motion.

However, no supplemental brief was filed.

Shores has not cited the Michigan statute on which his assault conviction was based
nor has he submitted any documents pertaining to the court proceedings.
Consequently, the Court cannot determine whether the offense of conviction “has as
an element the use, attempted use, or threatened use of physical force against the
person of another” and is therefore a violent felony under § 924(e)(2)(B)(i). Because
Shores has failed to demonstrate that he should no long be classified as an armed
career criminal, he is not entitled to relief under Johnson.
Accordingly,
IT IS HEREBY ORDERED that the amended motion of Mark Edwin Shores to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. ' 2255 [Doc. # 24] is
denied.

__________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 16th day of May, 2017.

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