Alexander v. USA

Filing 9

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that the motion of Nathaniel Alexander to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed separately. Signed by District Judge Catherine D. Perry on 9/20/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NATHANIEL ALEXANDER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

)
)
)
)
)
)
)
)
)

No. 4:16-CV-1109 CDP

MEMORANDUM AND ORDER
This matter is before the Court on the amended motion of Nathaniel
Alexander to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The
motion is denied.
Movant argues that he is entitled to relief under Johnson v. United States,
135 S.Ct. 2551 (2015), in which the Court held that the “residual clause” of the
Armed Career Criminal Act (“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)(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. The clause beginning with “has an
element” is known as the “elements clause.” Until recently, U.S.S.G. § 4B1.2(a)’s
definition of “crime of violence” was nearly identical to the ACCA.
Movant also argues that his sentence was affected by the recent Supreme
Court cases Mathis v. United States, 136 S.Ct. 2243 (2016), and Beckles v. United
States, No. 15-8544. In Mathis, the Court held that a prior conviction does not
qualify as the generic form of a predicate violent felony offense listed in the
ACCA if an element of the crime of conviction is broader than an element of the
generic offense because the crime of conviction enumerates various alternative
factual means of satisfying a single element.

In Beckles, the Court granted

certiorari on the issue of whether Johnson applies to the Sentencing Guidelines.
Mathis and Beckles can only apply to movant’s sentence if Johnson applies.
In this case, movant pled guilty to felon in possession of a firearm. United
States v. Alexander, No. 4:15-CR-528 CDP (E.D. Mo.). His sentence was not
enhanced under the ACCA or Chapter Four of the United States Sentencing
Guidelines. However, his base offense level under U.S.S.G. § 2K2.1 was 24
because he had “at least two felony convictions of either a crime of violence or a
2

controlled substance offense.” Specifically, he had a Missouri conviction for firstdegree assault from an incident arising in 1996 and a Missouri conviction for
possession with intent to distribute cocaine. Therefore, movant could arguably be
entitled to relief if his first-degree assault conviction was affected by Johnson.
At the time he committed the assault, Missouri defined first-degree assault
as follows: “A person commits the crime of assault in the first degree if he attempts
to kill or knowingly causes or attempts to cause serious physical injury to another
person.” E.g., State v. Lauer, 955 S.W.2d 23, 25 (Mo. Ct. App. 1997). This
definition fits squarely within the “elements clause” in U.S.S.G. § 4B1.2(a)(1),
which defines “crime of violence” for purposes of § 2K2.1. As a result, movant’s
sentence is unaffected by Johnson, and the motion must be denied.
Finally, the Court finds that movant has not met the burden for issuing a
certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the motion of Nathaniel Alexander to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this
action is DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.

3

An Order of Dismissal will be filed separately.
Dated this 20th day of September, 2016.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

4