Smith v. USA

Filing 10

ORDER DIRECTING SUPPLEMENTAL BRIEFING. The Government's brief is due on or before June 12, 2017. Movant's brief is due on or before July 3, 2017. Signed on May 1, 2017, by Chief District Judge Greg Kays. (Law clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
MICHAEL SMITH,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:16-CV-05064-DGK
(Crim. No. 3:09-05031-CR-DGK)

ORDER DIRECTING SUPPLEMENTAL BRIEFING
On November 17, 2009, Movant Michael Smith pled guilty to one count of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g). Although the offense generally
carries a maximum term of imprisonment of ten years, see 18 U.S.C. §§ 922(g), 924(a)(2), the
Court was required to sentence Movant to a mandatory minimum fifteen-year sentence under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. §§ 924(e)(1), once it found Movant’s three
prior Missouri burglary convictions qualified as violent felonies.
In the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), the Eighth Circuit
granted Movant permission to file a second motion 1 to litigate whether his prior burglary
convictions do, in fact, qualify as violent felonies under the ACCA. After the parties submitted
their initial round of briefs, several relevant decisions have been released.
In light of the Eighth Circuit Court of Appeal’s recent decisions in United States v. Sykes,
844 F.3d 712 (8th Cir. 2016), and United States v. Phillips, — F.3d —, 2017 WL 1228563 (8th
Cir. 2017), the Court directs the parties to submit additional briefing on the question of whether
Movant’s two prior second-degree burglary convictions of “an inhabitable structure” were “of a
building” and thus qualify as violent felonies under the ACCA. The Court specifically directs
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Movant previously filed a § 2255 motion which the Court denied.

the parties to discuss whether it can be shown via Shepard documents, 2 or otherwise, that
Movant’s second-degree burglary convictions were for burglarizing “a building.” See Phillips,
2017 WL 1228563, at *3 (noting the Government argued that reference to a physical street
address, together with the description of it as inhabitable, demonstrates from the face of the
charging document that the defendant was charged with unlawfully entering a building). The
parties should not brief whether Movant has procedurally defaulted his claim.
The Court recognizes it may take some time to gather the relevant Shepard documents.
Accordingly, the Government’s brief shall be filed on or before June 12, 2017. Movant’s brief
shall be filed on or before July 3, 2017. Neither brief shall exceed ten pages, exclusive of
exhibits such as Shepard documents.
IT IS SO ORDERED.
Date: May 1, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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By Shepard documents, the Court means that limited class of documents, including the charging document, plea
agreement, or the plea colloquy, which the Court may use to determine whether Movant burglarized a building. See
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); Shepard v. United States, 544 U.S. 13, 26 (2005).

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