Darden v. USA

Filing 7

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that movant Dornell Darde's Motion to Vacate, Set Aside, or Correct Sentence is GRANTED. [Doc. 1] IT IS FURTHER ORDERED that the judgment and commitment in United States v. Dornell Darden, No. 4:06-CR-122 CAS, filed August 15, 2006 (Crim. Doc. 26) is VACATED. IT IS FURTHER ORDERED that the United States Probation Office shall promptly prepare an updated presentence investigation report on Mr. Darden. Movant is gra nted a new sentencing hearing, to be set as soon as the presentence investigation report is completed. Until the sentencing hearing, Mr. Darden's detention order (Crim. Doc. 10) remains in full force and effect. IT IS FURTHER ORDERED that the Clerk of Court shall provide a copy of this Memorandum and Order to the United States Probation Office. IT IS FURTHER ORDERED that the Clerk of Court is directed to docket a copy of this Memorandum and Order in the criminal case, No. 4:06-CR-122 CAS. An appropriate judgment will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 1/17/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DORNELL DARDEN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-888 CAS

MEMORANDUM AND ORDER
This matter is before the Court on movant Dornell Darden’s motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255, based on Johnson v. United States, 135 S. Ct. 2551 (2015).
Johnson held that the Armed Career Criminal Act’s (“ACCA”) residual clause is unconstitutional.
The government opposes the motion, arguing that Johnson does not affect movant’s sentence and
he remains an armed career criminal. For the reasons below, the Court will grant movant’s motion.
I.

Background
On February 23, 2006, movant was charged in an indictment with one count of being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Darden, 4:06CR-122 CAS (E.D. Mo.) (Doc. 1). On April 25, 2006, movant pled guilty to the offense.
A presentence investigation report (“PSR”) was prepared after movant’s plea. The PSR
stated that movant met the Armed Career Criminal provisions of United States Sentencing Guideline
(“U.S.S.G.”) § 4B1.4 because he had at least three prior convictions for violent felonies. The PSR
did not specify which of movant’s convictions were for violent felonies. Movant’s prior convictions
included Missouri felony offenses of (1) assault in the second degree,1 (2) armed criminal action,

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The PSR stated that movant had a conviction for assault in the first degree; however, the
case record shows that he was convicted of assault in the second degree. See Mot. at Ex. A (Doc.
1), 12-13.

(3) tampering in the first degree, (4) robbery in the second degree, and (5) attempted robbery in the
second degree. On August 15, 2006, the Court sentenced movant to the mandatory minimum term
of 180 months imprisonment and a three-year period of supervised release.
On June 17, 2016, movant filed a motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, alleging that under Johnson his three predicate violent felony convictions no
longer qualify him as an armed career offender. This is movant’s first § 2255 motion. The
government agrees that movant’s motion is timely if he can demonstrate his sentence was imposed
under the ACCA’s residual clause. (Govt. Resp. at 3.)
II.

Legal Standard
A district court may vacate, set aside, or correct a federal sentence if “the sentence was in

excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). Movant bears the burden to show
he is entitled to relief. Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970). In a case
involving an ACCA conviction such as this one, “the movant carries the burden of showing that the
Government did not prove by a preponderance of the evidence that his conviction fell under the
ACCA.” Hardman v. United States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016); see also Hardman
v. United States, __ F. Supp. 3d __, 2016 WL 3702798, at *2-3 (W.D. Mo. June 3, 2016) (denying
government’s motion for reconsideration on the issue of the burden of proof).
III.

Discussion
In the instant motion, movant asserts that his 1993 Missouri conviction for second-degree

robbery and his 1994 Missouri conviction for attempted second-degree robbery no longer qualify
as predicate offenses now that Johnson has declared the ACCA’s residual clause unconstitutional.2

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Movant’s motion to vacate challenges only the status of his 1993 second-degree robbery and
1994 attempted second-degree robbery convictions as ACCA predicate felonies. Movant states, and
the government does not dispute, that first-degree tampering is not a crime of violence under the
ACCA. (Mot. at 4 (citing United States v. Thornton, 367 F.3d 971, 974 (8th Cir. 2004)). The
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The government responds that despite Johnson, movant is still subject to the armed career criminal
enhancement because his status as an armed career offender does not rest on the ACCA’s residual
clause. The government asserts that movant’s robbery and attempted robbery convictions were
classified as violent felonies under the elements clause of the ACCA, not the residual clause. That
is, movant’s prior convictions have as elements “the use, attempted use, or threatened use of
physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). The government states that
because movant’s prior convictions were violent felonies under the elements clause, and not the
residual clause, Johnson is inapplicable.
Movant replies that the record contains no indication under which clause the Court found the
second-degree robbery and attempted second-degree robbery convictions qualified as ACCA violent
felonies. Regardless, under recent Eighth Circuit precedent in United States v. Bell, 840 F.3d 963
(8th Cir. 2016), movant states neither conviction qualifies as a violent felony under the elements
clause of the ACCA.
A.

The ACCA

Movant’s claim for relief relies upon the Supreme Court’s recent decision in Johnson that
the residual clause of the ACCA is unconstitutional. Ordinarily, the crime of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g) is subject to a maximum punishment of
fifteen years. 18 U.S.C. § 924(a). The ACCA enhances the sentence and requires a fifteen-year
minimum sentence if a person who violates § 922(g) has three previous convictions for a “violent
felony.” The statute defines violent felony as any felony 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,

parties seem to agree that second-degree assault qualifies as a violent felony and armed criminal
action may or may not qualify as a violent felony, depending on the elements of the underlying
offense. Because only the second-degree robbery and attempted second-degree robbery convictions
are asserted as a basis for the motion, the Court will only address these convictions.
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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 added). The
italicized language, commonly known as the “residual clause,” is the portion of the statute
invalidated by Johnson, see 135 S. Ct. at 2556-57. The remaining clauses, § 924(e)(2)(B)(i) (the
“elements clause”), and the first clause of § 924(e)(2)(B)(ii) (the “enumerated offenses clause”), are
still effective. Id. at 2563. Recently, the Supreme Court held that Johnson announced a new
substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 136
S. Ct. 1257, 1268 (2016).
B.

Missouri’s Crimes of Second-Degree Robbery and Attempted Second-Degree
Robbery Do Not Qualify as Violent Felonies Under the Elements Clause of the
ACCA

Movant argues that his Missouri second-degree robbery and attempted second-degree
robbery convictions no longer qualify as violent felonies now that the ACCA’s residual clause has
been invalidated. The government responds that these convictions fall under the elements clause
of the ACCA.3 Movant disagrees, stating Missouri courts have construed the second-degree robbery
statute broadly to apply to conduct that does not constitute violent force within the meaning of the
ACCA. Movant states that because the Missouri statute criminalizes conduct falling short of violent
force, a conviction under the statute cannot qualify as a crime of violence under the ACCA.
In movant’s opening memorandum and in the government’s response, the parties analyzed
Missouri case law to determine whether Missouri’s second-degree robbery statute required the level
of force described in Johnson v. United States, 559 U.S. 133 (2010). On October 28, 2016, however,

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The government filed its response to movant’s § 2255 motion prior to the Eighth Circuit’s
decision in United States v. Bell, but noted that Bell was pending before the Eighth Circuit. See
Govt. Resp. at 6 n.1. The government stated that the Bell decision would be applicable to
determining whether Missouri’s crime of robbery in the second degree was interpreted as a “violent
felony” under the elements clause of the ACCA. Id.
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the Eighth Circuit Court of Appeals resolved this issue in movant’s favor in United States v. Bell,
840 F.3d 963 (8th Cir. 2016). The Eighth Circuit held that Missouri’s crime of robbery in the
second degree is not a “crime of violence” under the Sentencing Guidelines, U.S.S.G. § 4B1.2.
In Bell, the Eighth Circuit identified Missouri’s second-degree robbery statute as setting
forth a single indivisible crime, and applied the categorical approach to determine whether a
conviction under the statute qualified as a violent felony. Bell, 840 F.3d at 964-65; see also Bevly
v. United States, 2016 WL 6893815, *2 (E.D. Mo. Nov. 23, 2016). Under the categorical approach,
courts focus solely on the generic elements of the offense and not on the specific facts underlying
the defendant’s conviction. Bell, 840 F.3d at 964-65. The Eighth Circuit analyzed whether the
amount of physical force required under Missouri’s second-degree robbery statute rose to the level
of physical force required for a crime of violence under the Guidelines, and determined it did not.
Id. at 965-68; see also United States v. Dace, 842 F.3d 1067, 1069 (8th Cir. 2016). The Court relied
on Missouri state court decisions that held a defendant could be convicted of second-degree robbery
when he has physical contact with a victim but does not cause physical pain or injury. The Eighth
Circuit concluded that Missouri’s second-degree robbery statute criminalized conduct falling short
of “violent force” described by the Supreme Court in Johnson. Bell, 840 F.3d at 967. Thus, Bell’s
prior conviction of second-degree robbery in Missouri did not qualify as a crime of violence.
The Eighth Circuit treats authority interpreting the term “crime of violence” under the
Sentencing Guidelines as applicable in interpreting the term “violent felony” under the ACCA. See
United States v. Olsson, 742 F.3d 855, 855 n.1 (8th Cir. 2014) (citing United States v. Vinton, 631
F.3d 476, 484 (8th Cir. 2011) (“To determine whether a previous conviction is a crime of violence
under [the Sentencing Guidelines], we often have looked to the case law interpreting 18 U.S.C.
§ 924(e)(2)(B), a provision of the [ACCA] that defines the term ‘violent felony’ using similar
language.”)). So while Bell held a Missouri second-degree robbery conviction did not qualify as
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a crime of violence under the Sentencing Guidelines, this Court can apply Bell to its interpretation
of violent felony under the ACCA. Id. Under Bell, the Court finds movant’s prior conviction for
second-degree robbery does not qualify as a crime of violence and a predicate prior conviction for
purposes of the ACCA.
Because Missouri’s completed crime of second-degree robbery cannot categorically qualify
as a violent felony under the ACCA, attempted second-degree robbery also cannot qualify. A person
attempts a crime in Missouri when they take a “substantial step” toward committing the crime. See
Mo. Rev. Stat. § 562.012(1). Taking a substantial step toward committing a crime that does not
qualify as a violent felony cannot, itself, be a violent felony. See United States v. Reid, 769 F.3d
990, 994 (8th Cir. 2014) (finding prior conviction for Missouri offense of attempted burglary was
not a violent felony under ACCA). As a result, movant’s Missouri attempted second-degree robbery
conviction is not an ACCA predicate offense under the elements clause. Because movant does not
have the requisite three prior convictions for violent felonies, he is not subject to sentencing under
the ACCA.
IV.

Conclusion
Movant’s 1993 Missouri conviction for second-degree robbery and his 1994 Missouri

conviction for attempted second-degree robbery do not qualify as violent felonies under the elements
clause of the ACCA. Under the Supreme Court’s holding in Johnson, these convictions no longer
qualify as violent felonies based on the unconstitutional residual clause of the ACCA. As a result,
movant has established that his sentence is “in excess of the maximum authorized by law,” see 28
U.S.C. § 2255(a), because he does not have three ACCA predicate offenses to qualify for the
statutory enhancement. Movant is therefore entitled to be resentenced.

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Accordingly,
IT IS HEREBY ORDERED that movant Dornell Darden’s Motion to Vacate, Set Aside,
or Correct Sentence is GRANTED. [Doc. 1]
IT IS FURTHER ORDERED that the judgment and commitment in United States v.
Dornell Darden, No. 4:06-CR-122 CAS, filed August 15, 2006 (Crim. Doc. 26) is VACATED.
IT IS FURTHER ORDERED that the United States Probation Office shall promptly
prepare an updated presentence investigation report on Mr. Darden. Movant is granted a new
sentencing hearing, to be set as soon as the presentence investigation report is completed. Until the
sentencing hearing, Mr. Darden’s detention order (Crim. Doc. 10) remains in full force and effect.
IT IS FURTHER ORDERED that the Clerk of Court shall provide a copy of this
Memorandum and Order to the United States Probation Office.
IT IS FURTHER ORDERED that the Clerk of Court is directed to docket a copy of this
Memorandum and Order in the criminal case, No. 4:06-CR-122 CAS.
An appropriate judgment will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 17th day of January, 2017.

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