Niswonger v. USA

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Gary A. Niswonger's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255 (Doc. No. 1 ) is DENIED. IT IS FURTHER ORDERED that because Movant cannot make a su bstantial 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), cert. denied, 525 U.S. 834, 119 S. Ct. 89, 142 L. Ed. 2d 70 (1998). Signed by District Judge Ronnie L. White on 5/15/2019. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GARY A. NISWONGER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:16CV1097 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Gary A. Niswonger's Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. §2255 ("Motion"), filed July 1, 2016.

(ECF

No. 1).
BACKGROUND

On January 21, 1994, Niswonger pleaded guilty to being a felon in possession of a
firearm and possessing a firearm not registered to him in the National Firearms Registration and
Transfer Record. After the guilty plea, a Presentence Investigation Report ("PSR") was prepared
by the United States Probation Office.

The PSR found that Niswonger was an Armed Career

Criminal ("ACC") due to three previous convictions for violent felonies.

(PSR,

~13).

The

violent felony convictions listed in the PSR were:
1) On July 29, 1983, Niswonger was convicted of the felony of Missouri Robbery First
Degree in the Circuit Court of St. Louis County, Missouri, in Case Number 488491.
(PSR, ~24);
2) On August 1, 1983, Niswonger was convicted of the felony of Missouri Robbery First
Degree in the Circuit Court of St. Louis County, Missouri, in Case Number
831-00661.

(PSR, ~28);

3) On Augsut 1, 1983, Niswonger was convicted of the felony of Missouri Robbery First
Degree in the Circuit Court of St. Louis County, Missouri, in Case Number
831-00797.

(PSR,

~28);

As an ACC, Niswonger was assessed 31 Total Offense Levels. (PSR,

~21).

His

Criminal History Category was set at Category VI, with a Sentencing Guideline range of
188-235 months.

(PSR,

~44,

62).

On April 8, 1994, Niswonger was found to be an ACC and

sentenced to a term of imprisonment of 225 months.

Niswonger did not appeal his conviction

or sentence.
On July 1, 2016, Niswonger filed his instant §2255 Motion.

Niswonger's §2255 Motion

purports to rely 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") was unconstitutionally
vague.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the sentence was
imposed in violation of the Constitution or law of the United States, that the court lacked
jurisdiction to impose such a sentence, that "an error of law does not provide a basis
for collateral attack unless the claimed error constituted a fundamental defect which inherently
results in a complete miscarriage of justice." Sun Bear v. United States, 644 F.3d 700, 704 (8th
Cir. 201 l)(intemal citations omitted). To warrant relief under§ 2255, the errors of which the
movant complains must amount to a fundamental miscarriage of justice. Davis v. United States,
417 U.S. 333, 346, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109, 119 (1974); Hill v. United States, 368
U.S. 424, 428-29, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417, 422 (1962).

DISCUSSION

Under Title 18, United States Code, Section §922(g)(l) 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 conviction for violent
felonies and/or serious drug offenses committed on occasions separate from one another must
receive an enhanced punishment of a maximum of life and a minimum term of imprisonment of
fifteen years.

18 U.S.C. §924(e), also known as the ACCA.

Niswonger 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) the term "violent felony" means any crime punishable by imprisonment for a term
exceeding one year, ... , that(i) has as an element the use, attempt 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 ofphysical injury to another.

18 U.S.C. §924(e)(2)(B) (emphasis added).
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 ("ACC"). Johnson, 135 S. Ct. 2551, 2563 (2015) ("We hold
that imposing an increased sentence under the residual clause of the Armed Career Criminal Act

violates 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."). Those remaining sections are subsection (i), commonly referred
to as the "elements" clause, and the portion of subsection (ii) which contains the enumerated
crimes of burglary, arson extortion or involving the use of explosives.
As previously stated, Niswonger's convictions are for Missouri Robbery in the First
Degree. Under Missouri Statute, Robbery in the First Degree is defined as follows:

A person commits the crime of robbery in the first degree when he forcibly steals
property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any
person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or
dangerous instrument.
Mo. Rev. Stat. §569.020.1. A person "forcibly steals" when he "uses or threatens the immediate
use of physical force upon the person of another ... " Mo. Rev. Stat.§ 569.010(1). Bevly v. United
States, No. 4:16CV00965 ERW, 2016 WL 6893815, at *2 (E.D. Mo. Nov. 23, 2016).
Missouri's statute for Robbery in the First Degree fits squarely in the elements clause of the
ACCA. The Missouri First Degree Robbery statute "uses the term 'forcibly steals' and its
definition is almost identical to the language contained in the elements clause of the ACCA."
Bevly v. United States, No. 4:16CV00965 ERW, 2016 WL 6893815, at *3 (E.D. Mo. Nov. 23,
2016). The Court agrees with the Court in Bevly that Robbery in the First Degree constitutes a
violent felony:

The listed elements make clear Robbery in the First Degree is a violent felony. A
person may commit Robbery in the First Degree when a person forcibly steals
property and either causes serious physical injury, is armed with a deadly weapon,
uses or threatens to use a dangerous instrument, or displays or threatens to use what
appears to be a deadly weapon or dangerous instrument. This language satisfies the
requirement of the use or threatened use of physical force or force capable of
causing physical pain or injury to another. ... Therefore, the Court
finds Missouri's statute for Robbery in the First Degree qualifies as
a violent felony under the ACCA. See also United States v. Sprous, 389 Fed.Appx.
826, 828 (10th Cir. 2010) ("There is no question
that Missouri ... first-degree robbery [is a] violent felon[y].").

Bevly v. United States, No. 4:16CV00965 ERW, 2016 WL 6893815, at *3 (E.D. Mo. Nov. 23,
2016). Therefore, the Court holds that Johnson has no impact on Niswonger' s case and he is not
entitled to relief under his §2255 motion.
This claim is denied.
Accordingly,

IT IS HEREBY ORDERED that Petitioner Gary A. Niswonger's Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. §2255 (Doc. No. 1) is DENIED.

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), cert. denied, 525 U.S. 834, 119 S. Ct. 89, 142
L. Ed. 2d 70 (1998).
Dated this 15th day of May, 2019.