Hennings v. USA
MEMORANDUM: The Court concludes that the motions to vacate and the files and records of this case conclusively show that Hennings is not entitled to relief under 28 U.S.C. § 2255. Therefore, the motion and amended motions will be denied witho ut a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the Court finds that Hennings has not made a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability. See 28 U.S.C. 2253. An Order consistent with this Memorandum will be filed separately. Signed by District Judge Carol E. Jackson on 6/26/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
) No. 4:16-CV-47 (CEJ)
This matter is before the Court on the motion of Robert Hennings to vacate,
set aside, or correct sentence, pursuant to 28 U.S.C. ' 2255. The United States has
filed a response in opposition.
Hennings pleaded guilty to possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the Court found that Hennings had
the following prior felony convictions: (1) burglary second degree of a building, (2)
assault second degree by means of a dangerous instrument, (3) burglary first
degree, and (4) burglary second degree of a building. The Court found that Hennings
was an armed career criminal and sentenced him pursuant to 18 U.S.C. § 924(e) to a
180-month term of imprisonment.
In his motions, Hennings asserts that he can no longer be deemed an armed
career criminal because his prior burglary convictions no longer qualify as violent
felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Thus, he
argues, he does not have the requisite number of predicate felony convictions to
justify the enhanced sentence under the ACCA.
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, 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.”
“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. Further, the Court made clear that its
decision did not implicate the enumerated offenses of burglary, arson, extortion, and
use of explosives. Id. (“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
The following year, in Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243,
195 L.Ed.2d 604 (2016), the Court addressed the issue of determining whether a
defendant’s prior conviction qualifies as one of the enumerated offenses under the
The Court ruled that a prior conviction does not qualify as the generic form of
an enumerated offense 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.
Thus, the Court held that Mathis’s Iowa burglary
conviction was not a predicate offense under the ACCA, because the elements of the
state’s burglary statute were broader than the elements of the enumerated offense of
generic burglary. Id.
In light of Mathis, a conviction for burglary second degree of an inhabitable
structure can no longer be deemed a predicate offense for purposes of the ACCA.
However, Hennings’s two convictions for burglary second degree of a building remain
In the wake of the Johnson and Mathis decisions, the Eighth Circuit has
addressed whether the Missouri offense of burglary second degree of a building
qualifies as a violent felony for purposes of the ACCA. In United States v Sykes, 844
F.3d 712 (8th Cir. 2016), the court of appeals determined that the Missouri statute
“contains at least two alternative elements: burglary ‘of a building’ and burglary of
‘an inhabitable structure,’ separated in the text by the disjunctive ‘or’.” Id. at 715
[quoting Mo. Rev. Stat. § 569.170]. Because the statute listed the elements in the
alternative, the court applied the modified categorical approach approved in Mathis
and determined that Sykes’ prior conviction was for burglary of a building. Id. [citing
Mathis, 136 S. Ct. at 2249 (when elements of offense are listed in the alternative,
courts may look to documents, such as indictment, plea agreement, or jury
instructions “to determine what crime, with what elements, a defendant was
convicted of.”)]. The court determined that second-degree burglary of a building is
an offense that “conforms to the elements of a generic burglary as promulgated in
Taylor [v. United States, 495 U.S. 602 (1990)]: (i) unlawful entry or remaining in (ii)
a building or structure (iii) with the intent to commit a crime.” Id. [citing Taylor, 495
U.S. at 598]. The court further ruled that “because burglary of ‘a building’ describes
an element of second-degree burglary rather than a means, our decision does not
run afoul of Mathis.” Id. Thus, the court held that the Missouri offense of burglary
second degree of a building constitutes a violent felony under the ACCA. Id. at 716.
The Eighth Circuit reaffirmed this holding in United States v. Naylor, 2017 WL
1163645 at *1 (8th Cir. 2017).
In the instant case, Hennings’s convictions for second degree burglary of a
building clearly qualify as generic burglary—an enumerated offense in the ACCA. In
addition, his conviction for assault second degree with a dangerous instrument is an
offense that has as an element the use of physical force against another person and
is therefore a violent felony under the ACCA. See United States v. Alexander, 809
F.3d 1029, 1032 (8th Cir. 2016) (Missouri crime of assault second degree by means
of a dangerous instrument is a violent felony under the ACCA). The residual clause
invalidated by Johnson is inapplicable and Rollins is not entitled to relief based on
The Court concludes that the motions to vacate and the files and records of
this case conclusively show that Hennings is not entitled to relief under 28 U.S.C. §
Therefore, the motion and amended motions will be denied without a
hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).
Additionally, the Court finds that Hennings has not made a substantial showing of
the denial of a constitutional right. Therefore, the Court will not issue a certificate of
appealability. See 28 U.S.C. 2253.
An Order consistent with this Memorandum will be filed separately.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of June, 2017.
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