Givens v. USA
MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that movant Harold Givens' 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. Harold Gi vens, No. 4:03-CR-764 CAS, filed June 21, 2005 (Crim. Doc. 52) is VACATED. IT IS FURTHER ORDERED that the United States Probation Office shall promptly prepare an updated presentence investigation report on Mr. Givens. Movant is granted a new sentencing hearing, to be set as soon as the presentence investigation report is completed. Until the sentencing hearing, Mr. Givens' detention order (Crim. Doc. 30) remains in full force and effect. IT IS FURTHER ORDERED that the Clerk of the Court shall provide a copy of this Memorandum and Order to the United States Probation Office. IT IS FURTHER ORDERED that the Clerk of the Court is directed to docket a copy of this Memorandum and Order in the criminal case, No. 4:03-CR-764 CAS. An appropriate judgment will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 12/15/2016. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:16-CV-1143 CAS
MEMORANDUM AND ORDER
This matter is before the Court on movant Harold Givens’ 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’s1 (“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 because his ACCA predicate offenses were force/elements and
enumerated clause convictions, not residual clause violent felonies. The government also argues
that movant’s motion is not cognizable in a successive habeas action because it actually seeks relief
based on statutory interpretation principles set forth in Mathis v. United States, 136 S. Ct. 2243
(2016), and does not rely on a new rule of constitutional law, as required by 28 U.S.C. § 2255(h)(2).
For the reasons stated below, the Court will grant movant’s motion.
On December 18, 2003, movant was charged in an indictment with being a: felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count I); felon in
18 U.S.C. § 924(e).
possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count II); and felon
in possession of a firearm with a removed, obliterated, or altered serial number, in violation of 18
U.S.C. § 922(k) (Count III). See United States v. Givens, 4:03-CR-764 CAS (E.D. Mo.) (Doc. 1).
Following a mental competency examination, movant entered into a plea agreement with the
government on March 17, 2005, under which he agreed to plead guilty to Count II in exchange for
the government’s agreement to dismiss Counts I and III.
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
Guidelines (“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) second-degree burglary committed in 1988, (2)
second-degree robbery committed in 1988, and (3) second-degree burglary committed in 1994. On
June 21, 2005, the Court sentenced movant to the mandatory minimum term of 180 months and a
three-year period of supervised release.
Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 on August 18, 2008. The Court denied the motion as both time barred and without merit,
and denied a certificate of appealability. Givens v. United States, No. 4:08-CV-1207 CAS (E.D.
Mo.) (Order of Oct. 21, 2008).
After the Supreme Court decided Johnson, movant filed a successive motion to vacate, set
aside or correct sentence which this Court denied without prejudice because movant had not
obtained permission from the Eighth Circuit Court of Appeals, as required by 28 U.S.C. § 2255(h).
The Court transferred the motion to the Eighth Circuit, which granted movant’s petition for
authorization to file a successive habeas application. Givens v. United States, No. 15-2973 (8th Cir.
June 24, 2016). This Court then directed the Clerk of the Court to open movant’s successive motion
to vacate as a new civil case bearing the instant case number.
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).
In the instant motion, movant asserts that his 1994 Missouri second-degree conviction for
burglary of an inhabitable structure no longer qualifies as a predicate offense now that Johnson has
declared the ACCA’s residual clause unconstitutional.2 The government responds that despite
Johnson, movant is still subject to the armed career criminal enhancement because his status does
Movant’s motion to vacate challenges only the status of his 1994 second-degree burglary
conviction as an ACCA predicate felony. In a footnote of his motion, movant states “it is highly
questionable that [his] prior Missouri conviction for Robbery 2nd Degree (PSR ¶ 39) is a ‘crime of
violence’ under the Federal Sentencing Guidelines for purposes of calculating his otherwise
applicable advisory Guidelines Offense level” because the statute’s elements are overly broad
compared to the elements of generic robbery in U.S.S.G. § 2K2.1. Movant asserts that as a result,
“it is likely” his total offense level under the applicable Guidelines is 23. Mot. at 5, n.2. The
government’s Response addresses the robbery conviction, presumably because of this footnote.
Because the robbery conviction is not asserted as a basis for the motion, the Court does not address
not rest on the ACCA’s residual clause. The government asserts that movant’s burglary conviction
was classified as a violent felony under the enumerated clause of the ACCA, not the residual clause.
The government relatedly asserts that movant fails to establish his sentence was infected by
constitutional – i.e., residual-clause – error, because he points to nothing in the record indicating that
the Court decided his prior convictions were ACCA predicate felonies based on the residual clause
rather than the enumerated clause.
The government also asserts that movant’s claims are not cognizable in a successive § 2255
habeas action, as his motion fails to meet 28 U.S.C. § 2255(h)(2)’s requirement that a successive
motion be based on a new rule of constitutional law. The government argues that movant relies on
the “statutory interpretation principles espoused in Mathis, . . . not the constitutional holding in
Johnson.” Response at 6-7.
Movant replies that his motion meets the requirements of § 2255(h)(2) as it is based on
Johnson’s new rule of constitutional law that is retroactive to cases on collateral review, Welch v.
United States, 135 S. Ct. 2551 (2015), and which was previously unavailable to him. Movant states
that because the definition of inhabitable structure used in Missouri’s burglary statute is broader than
generic burglary as defined in Taylor v. United States, 495 U.S. 575 (1990), his burglary conviction
does not qualify as an ACCA enumerated predicate offense, but at the time of sentencing it qualified
under the ACCA’s residual clause based on Eighth Circuit precedent such as Bell v. United States,
445 F.3d 1086, 1090 (8th Cir. 2006). Movant notes that at sentencing, the Court did not specify why
the second-degree burglary convictions qualified as ACCA violent felonies.
A. The Armed Career Criminal Act
Movant’s claim for relief relies on the interaction of recent Supreme Court cases interpreting
the ACCA. Ordinarily, the crime of being a felon in possession of firearms and ammunition 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, 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, 136 S. Ct. at 1268.
B. Movant Meets the Requirements of 28 U.S.C. §§ 2244 and 2255(h)(2)
Section 2244(b)(4) of Title 28 states that a “district court shall dismiss any claim presented
in a second or successive application that the court of appeal has authorized to be filed unless the
applicant shows that the claim satisfies the requirements of this section.” Separately, Section
2255(h)(2) requires that a second or successive habeas motion must contain “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
The government argues that movant’s motion does not present a cognizable claim because
it is not based on a new rule of constitutional law as required by 28 U.S.C. § 2255(h)(2). The
government contends that movant “attacks his second degree burglary convictions based on
Missouri’s definition of “inhabitable structure,” which “demonstrates reliance on the statutory
interpretation principles espoused in Mathis, . . . not the constitutional holding in Johnson.”
In Mathis, the Supreme Court held that in determining whether a prior conviction qualifies
as an ACCA predicate, the modified categorical approach of analysis cannot be used if the statute
itemizes various factual means of committing a single element of a crime, instead of listing multiple
elements disjunctively. Mathis, 136 S. Ct. at 2248-53. Specifically, the Court held that because the
elements of Iowa’s burglary statute – which applies to “any building, structure, [or] land, water, or
air vehicle” – are broader than those of generic “burglary” – which requires unlawful entry into a
“building or other structure” – prior convictions under the Iowa burglary law cannot give rise to a
sentence enhancement under the ACCA. Id. at 2256, 2257.
As this Court and other courts have recognized, it is Johnson, and not earlier Supreme Court
decisions such as Mathis, that may offer persons such as movant relief from his status as an armed
career criminal. See Taylor v. United States, 2016 WL 6995872, at *3-5 (E.D. Mo. Nov. 30, 2016);
Hayes v. United States, 2016 WL 4206028, at *2 (E.D. Mo. Aug. 10, 2016); see also United States
v. Winston, __ F.Supp.3d __, 2016 WL 4940211, at *2 (W.D. Va. Sept. 16, 2016); United States v.
Ladwig, __ F.Supp.3d __, 2016 WL 3619640, at *4 (E.D. Wash. June 28, 2016); United States v.
Winston, 2016 WL 2757451, at *2-3 (W.D. Va. May 11, 2016). Without Johnson’s invalidation of
the residual clause, movant would not have a claim under Mathis that he is not an armed career
criminal. After Mathis, movant’s Missouri second-degree burglary conviction could no longer be
a predicate ACCA violent felony as an enumerated offense, see United States v. Bess, 2016 WL
6476539, at *4 (E.D. Mo. Nov. 2, 2016), but the conviction would still have qualified as a predicate
felony under the residual clause. See United States v. Cantrell, 530 F.3d 684, 695-96 (8th Cir. 2008)
(holding that Missouri’s second-degree burglary offense was categorically a “crime of violence”
despite the statute’s broad definition of “inhabitable structure.”). “Only with Johnson’s invalidation
of the residual clause could [movant] reasonably argue that he is no longer eligible for the ACCA
enhancement.” Ladwig, 2016 WL 3619640, at *4; see also Taylor, 2016 WL 6995872, at *3;
Winston, 2016 WL 4940211, at *2; Hayes, 2016 WL 4206028, at *2.
Because Johnson provides movant with an avenue of relief that was not previously available
to him, his petition utilizes that decision and therefore relies on “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2). The Court therefore rejects the government’s argument.
C. Movant Need Not Affirmatively Prove He Was Sentenced Under the Residual Clause
The government’s remaining, interrelated arguments are that (1) movant was sentenced
under the ACCA’s enumerated clause and therefore Johnson’s invalidation of the residual clause
does not affect his status as an armed career criminal, and (2) movant fails to establish that his
sentence was infected by constitutional error because he cannot show that the Court decided his
prior conviction was an ACCA predicate felony based on the residual clause rather than the
As noted above, the Court only addresses the argument set forth in movant’s motion: that
his 1994 Missouri burglary second-degree conviction is no longer an ACCA predicate felony.
Accordingly, the Court does not address the government’s argument that movant’s robbery seconddegree conviction remains an ACCA felony under the statute’s elements/use of force language. But
see United States v. Bell, 840 F.3d 963, 966-67 (8th Cir. 2016) (Missouri conviction for second7
The government points to nothing in the record to support its bare assertion that movant was
sentenced as an armed career criminal under the enumerated clause rather than the residual clause.
The Court has reviewed the indictment, the presentence report, and the sentencing transcript in the
underlying criminal case. There is no mention in any of these documents as to the specific basis for
movant’s sentence under the ACCA. This is not surprising, as “[n]othing in the law requires a judge
to specify which clause of § 924(c) . . . it relied upon in imposing a sentence,” In re Chance, 831
F.3d 1335, 1340 (11th Cir. 2016). At the time of movant’s sentencing there was no need to
distinguish between the enumerated and residual clauses, and no need to invoke any specific clause
when the Court found that movant qualified as an armed career criminal. See United States v.
Gabourel, __ F.Supp.3d __, 2016 WL 3453479, at *3 (W.D. Va. June 17, 2016). The Court
therefore rejects the government’s unsupported argument that movant was sentenced under the
ACCA’s enumerated clause.
As for the argument that movant must establish he was sentenced under the residual clause,
this Court has previously held that “[i]n a situation where the Court cannot determine under what
clause the prior offenses were determined to be predicate offenses, the better approach is for the
Court to find relief is available, because the Court may have relied on the unconstitutional residual
clause.” Bevly v. United States, 2016 WL 6893815, at *1, No. 4:15-CV-965 ERW (E.D. Mo. Nov.
23, 2016) (citing Johnson v. United States, 2016 WL 6542860, at *2 (W.D. Mo. Nov. 3, 2016)); see
also Ladwig, 2016 WL 3619640, at *3. The Court will follow its precedent and proceed to the
merits of movant’s motion.
degree robbery does not constitute a “crime of violence” under the United States Sentencing
Guidelines “because it does not necessarily require the use of violent force as one of its elements.”
Id. at 967).
D. Movant’s Prior Conviction No Longer Qualifies as a Violent Felony
Movant argues that his 1994 Missouri second-degree burglary conviction no longer qualifies
as a violent felony now that the ACCA’s residual clause has been invalidated. The government’s
Response does not address the merits of this argument, but rather only argues that movant’s motion
cannot succeed for the threshold reasons addressed above. The Court agrees with movant.
With the invalidation of the residual clause, movant’s second-degree burglary conviction
could only be a violent crime under the ACCA’s enumerated clause, which defines the term “violent
felony” to include any felony, whether state or federal, that “is burglary, arson, or extortion.” 18
U.S.C. § 924(e)(2)(B)(ii). A prior conviction will qualify as an ACCA predicate offense “if, but
only if, its elements are the same as, or narrower than, those of the generic offense.” Mathis, 136
S. Ct. at 2247. “That means as to burglary—the offense relevant in this case—that Congress meant
a crime ‘contain[ing] the following elements: an unlawful or unprivileged entry into . . . a building
or other structure, with intent to commit a crime.’” Id. at 2248 (quoting Taylor, 495 U.S. at 598).
“[I]f the crime of conviction covers any more conduct than the generic offense, then it is not an
ACCA ‘burglary’—even if the defendant’s actual conduct (i.e., the facts of the crime) fits within the
generic offense’s boundaries.” Id.4
“To determine whether a prior conviction is for generic burglary (or other listed crime)
courts apply what is known as the categorical approach: They focus solely on whether the elements
The Supreme Court’s opinion in Mathis makes clear that the divisibility rule it announced
is not a “new” rule. The Court stated that its conclusion was compelled by its precedents going back
twenty-five years. See Mathis, 136 S. Ct. at 2247, 2251. Because Mathis did not announce a new
rule, courts may apply the decision on collateral review. See Whorton v. Bockting, 549 U.S. 406,
414-416 (2007) (decision that clarifies existing law (and thereby reaffirms an “old rule”) “applies
. . . on collateral review”); Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (“[W]hen we
apply a settled rule . . . a person [may] avail herself of the decision on collateral review.”).
of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the
particular facts of the case.” Id. at 2248 (citing Taylor, 495 U.S. at 600-01). The elements of a
crime are “the things the prosecution must prove to sustain a conviction” and are “what the jury must
find beyond a reasonable doubt to convict the defendant[.]” Id. (citations and internal quotations
omitted). In contrast, the facts of a crime are “extraneous to the crime’s legal requirements” and
have “no legal effect [or] consequence[.]” Id. (citations omitted).
At issue in Mathis was Iowa’s burglary statute, which lists multiple, alternative means of
satisfying one of its elements—the place where a burglary can occur. Id. at 2248, 2250. The generic
offense of burglary requires unlawful entry into a “building or other structure.” Id. at 2250 (citing
Taylor, 495 U.S. at 598). In contrast, the Iowa statute describes a broader range of places where a
burglary can be committed: “any building, structure [or] land, water, or air vehicle.” Id. at 2250
(emphasis in original) (quoting Iowa Code § 702.12 (2013)). The Supreme Court concluded the
statute’s listed locations are not “alternative elements, going toward the creation of separate crimes”
but rather are “alternative ways of satisfying a single locational element[.]” Id. (citations omitted).
The Court held that Iowa’s burglary statute was overbroad for the purposes of an ACCA
enhancement because the statute’s elements were broader than those of generic burglary. Id. at
Under Missouri law, “a person commits the crime of burglary in the second degree when he
knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure
for the purpose of committing a crime therein.’” Mo. Rev. Stat. § 569.170.1 (2000). The statute
does not define the term “building.” Another statute defines the term “inhabitable structure” to
include a “ship, trailer, sleeping car, airplane, or other vehicle or structure” where a person lives or
carries on business; where people assemble for purposes of business, education, religion,
government, entertainment, or public transportation; or is used for overnight accommodation. Mo.
Rev. Stat. § 569.010(2) (2000). Under the statute, a vehicle or structure is inhabitable regardless of
whether a person is present. Id. Missouri’s burglary statute, similar to Iowa’s, lists a number of
locations that can satisfy an element of the crime.
In United States v. Bess, the Eighth Circuit stated that Missouri’s second-degree burglary
statute covers a broader range of conduct than generic burglary, and therefore a conviction under
the statute cannot qualify as a predicate violent felony under the categorical approach for ACCA
sentencing. Bess, 655 F. App’x 518, 519 (8th Cir. 2016) (unpublished per curiam). The Eighth
Circuit remanded Bess to this Court to determine in the first instance whether a Missouri seconddegree burglary conviction may qualify as a predicate offense under the modified categorical
approach. The Eighth Circuit stated that if the alternative phrases in the burglary statute –
“building” and “inhabitable structure” – are means of committing the crime, rather than elements,
then the statute is not divisible, the modified categorical approach is not available, and convictions
under the statute do not qualify as ACCA predicate offenses. Id. at 520.
On remand, the Honorable E. Richard Webber examined the Missouri second-degree
burglary statute and concluded that it includes alternative means, not elements, and therefore is
indivisible. Bess, 2016 WL 6476539, at *4. As a result, Judge Webber held the modified
categorical approach is not available and Missouri second-degree burglary convictions are not
ACCA predicate offenses. Id. at *5. Judge Webber also noted that two other district courts have
held that Missouri’s second-degree burglary statute is indivisible and that convictions under it
cannot be predicate violent felonies under the ACCA. Id. (citing Henderson v. United States, __
F.Supp.3d __, 2016 WL 4967898, at *5 (W.D. Mo. Sept. 16, 2016), and United States v. Rockwell,
__ F.Supp.3d __, 2016 WL 4939115, at *3 (W.D. Ark. Sept. 14, 2016)).5 See also Johnson, 2016
WL 6542860, at *3 (same); Taylor, 2016 WL 6995872, at *6.
Because Missouri’s second-degree burglary statute includes alternative means and is
indivisible, the modified categorical approach is not available. Bess, 2016 WL 6476539, at *4;
Taylor, 2016 WL 6995872, at *6. As a result, movant’s Missouri second-degree burglary conviction
is not an ACCA predicate offense, and movant has met his burden to show that his sentence is illegal
because the 1994 burglary conviction could not have qualified as the necessary third ACCA
Under the Supreme Court’s holding in Johnson, movant’s 1994 Missouri conviction for
second-degree burglary no longer qualifies as a violent felony under 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.
Judge Webber also stated that burglary “statutes similar to Missouri’s have uniformly been
declared to be indivisible and convictions under those statutes have been found not to qualify as
predicate offenses.” Bess, 2016 WL 6476539, at *5 (citing Wojcieszak v. United States, __
F.Supp.3d __, 2016 WL 3637274 (S.D. Fl. Jul. 1, 2016) (Florida statute); United States v. Edwards,
836 F.3d 831 (7th Cir. 2016) (Wisconsin statute); United States v. Ladwig, __ F.Supp.3d__, 2016
WL 3619640 (E.D. Wash. Jun. 28, 2016) (Washington statute); Sanchez v. United States, 2016 WL
4921029 (E.D. Tenn. Sept. 14, 2016) (New Jersey statute); and United States v. Ritchey, 840 F.3d
310 (6th Cir. 2016) (Michigan statute)).
IT IS HEREBY ORDERED that movant Harold Givens’ 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.
Harold Givens, No. 4:03-CR-764 CAS, filed June 21, 2005 (Crim. Doc. 52) is VACATED.
IT IS FURTHER ORDERED that the United States Probation Office shall promptly
prepare an updated presentence investigation report on Mr. Givens. Movant is granted a new
sentencing hearing, to be set as soon as the presentence investigation report is completed. Until the
sentencing hearing, Mr. Givens’ detention order (Crim. Doc. 30) remains in full force and effect.
IT IS FURTHER ORDERED that the Clerk of the Court shall provide a copy of this
Memorandum and Order to the United States Probation Office.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to docket a copy of this
Memorandum and Order in the criminal case, No. 4:03-CR-764 CAS.
An appropriate judgment will accompany this Memorandum and Order.
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 15th
day of December, 2016.
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