Wright v. USA
Filing
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ORDER AND OPINION GRANTING PETITIONER'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255. Signed on 8/30/16 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea) Order mailed to Joseph Wright, 306630-31, Yazoo City Low, FCI, PO Box 5000, Yazoo City, MS 39194 on 8/30/2016 (Martin, Jan).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JOSEPH J. WRIGHT,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 15-0858-CV-W-ODS
Crim. No. 11-CR-00060-ODS-1
ORDER AND OPINION GRANTING PETITIONER’S MOTION TO VACATE
SENTENCE UNDER 28 U.S.C. § 2255
Pending is pro se Petitioner Joseph Wright’s (Petitioner) Motion to Vacate
Judgment and Sentence in Accordance to 28 U.S.C. § 2255. Doc. #1. Petitioner seeks
to be resentenced pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), which
held that the Armed Career Criminal Act’s (“ACCA”) residual clause is unconstitutional.
The Government contends Petitioner’s sentence is still proper under other provisions of
the ACCA. Doc. #12. For the reasons set forth below, the Court grants Petitioner’s
motion.
I. BACKGROUND
On May 11, 2011, Petitioner pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Ordinarily, that offense
carries a maximum punishment of ten years’ imprisonment. 18 U.S.C. § 924(a)(2).
However, the ACCA requires a minimum sentence of fifteen years if a person violating
18 U.S.C. § 922(g) has at least three prior convictions for a “serious drug offense” or a
“violent felony.” 18 U.S.C. § 922(e)(1). A “violent felony” is defined as a felony that “(i)
has as an element the use, attempted use, or threatened use of physical force against
the person of another; or (ii) 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)(2)(B) (emphasis added). The italicized portion of the
definition constitutes the “residual clause” held unconstitutional in Johnson.
A presentence investigation report (“PSR”) was prepared after Petitioner pled
guilty. The PSR found Petitioner had four convictions qualifying him for an ACCA
enhanced sentence. Specifically, Petitioner had convictions for distribution of crack
cocaine,1 attempted burglary, and two convictions for Missouri second-degree burglary.
Petitioner’s first conviction for second-degree burglary occurred in 1978 while a different
version of the Missouri second-degree burglary statute was in effect, but his second
conviction occurred in 1979 under the current version of the Missouri statute. Because
Petitioner had at least three qualifying ACCA predicate offenses, he was sentenced to
180 months’ imprisonment on August 12, 2011.
Petitioner asserts his two second-degree burglary convictions do not qualify as
predicate offenses and he is not subject to the ACCA’s enhanced sentencing
provisions. The Government concedes Petitioner’s conviction for attempted burglary no
longer qualifies as a predicate offense. See Doc. #12, at 5; United States v. Reid, 769
F.3d 990, 995 (8th Cir. 2014) (stating “[Defendant’s] conviction for attempted second
degree burglary in Missouri does not constitute a “violent felony” under § 924(e).”).
Therefore, because his conviction for distribution of crack cocaine remains an ACCA
qualifying offense, Petitioner remains an armed career criminal if both of his prior
second-degree burglary convictions qualify as “violent felon[ies]” under the ACCA, but
does not if these second-degree burglary convictions no longer qualify under the
Supreme Court’s decision in Johnson.
II. DISCUSSION
“A prisoner…claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States…or that the
sentence was in excess of the maximum authorized by law…may move the court which
imposed the sentence to vacate, set aside or correct the sentence.” 18 U.S.C. §
1
Petitioner’s conviction for distribution of crack cocaine is a “serious drug offense”
unaffected by the Johnson decision and remains a qualifying offense under ACCA. See
18 U.S.C. § 924(e)(2)(A).
2
2255(a). The Court first finds Petitioner’s motion to vacate was timely because it was
filed within one year of the Supreme Court’s decision in Johnson. See 28 U.S.C. §
2255(f)(3). The Court also finds, based upon Welch v. United States, 136 S. Ct. 1257
(2016), that Johnson applies retroactively.
(A)
The ACCA 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
crime qualifies as an ACCA predicate “if, but only if, its elements are the same as, or
narrower than, those of the generic offense.” Mathis v. United States, 136 S. Ct. 2243,
2247 (2015). “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 v. U.S., 495 U.S. 575, 598 (1990)). “[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.
“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 of the crime of conviction sufficiently match the elements of
generic burglary, while ignoring the particular facts of the case.” Id. at 2248. The Court
must distinguish between elements and facts. Id. Elements are “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). Facts, on the other hand, are “extraneous to the crime’s legal requirements”
and “have[] no legal effect [or] consequence.” Id. (citations omitted).
In Mathis, the Supreme Court examined Iowa’s burglary statute, which lists
multiple, alternative means of satisfying one of its elements – to wit, the place where a
burglary can occur. Id. at 2248, 2250. Generic offense of burglary requires unlawful
entry into a “building or other structure.” Id. Iowa’s statute, however, reaches a broader
range of places where a burglary can occur: “any building, structure [or] land, water, or
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air vehicle.” Id. at 2250 (quoting Iowa Code § 702.12 (2013)). These listed locations
are not “alternative elements,” but are “alternative ways of satisfying a single locational
element.” Id. (citations omitted). The Supreme Court found the Iowa burglary statute
was overbroad for the purposes of an ACCA enhancement because the elements of
Iowa’s burglary law were broader than those of generic burglary. Id. at 2251, 2257.
The Supreme Court noted the threshold inquiry – elements or means – may be
resolved easily by the statute on its face or when a state court definitely answers the
question. Id. at 2256. If state law does not provide a clear answer, a court may look to
a limited number of documents, such as the indictment, jury instructions, or plea
agreement and colloquy to determine what crime – and the elements of the crime – of
which the defendant was convicted. Id. at 2249. In Mathis, the Court’s analysis was
straightforward because the Iowa Supreme Court found the listed premises in Iowa’s
burglary law provided alternative methods of committing the offense. Id. at 2256 (citing
State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)). Unfortunately, neither the parties
nor the Court has located a Missouri case finding Missouri’s burglary statute’s listed
premises are elements or means. Thus, the Court must examine the burglary statute at
issue.
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 (2007). “Building” is not statutorily defined. “Inhabitable
structure” includes 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) (2007). A vehicle or
structure is inhabitable regardless of whether a person is present. Id. Missouri’s
burglary statute, much like Iowa’s burglary statute, lists a range of locations satisfying
an element of the crime. Based upon the face of the statute, these listed locations
appear to be alternative ways of satisfying the location element of the crime of burglary
in Missouri.
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Whether the alternative locations are elements or means is further evinced by the
Missouri approved charge and model jury instructions, which are approved by the
Missouri Supreme Court and are mandatory. The Missouri Approved Charge for
second-degree burglary directs the charging officer to choose either “building” or
“inhabitable structure” and “briefly describe the location” of the building or inhabitable
structure.
23.54 BURGLARY IN THE SECOND DEGREE
The (Grand Jurors) (Circuit Attorney) (Prosecuting Attorney) of the
(City) (County) of ___________, State of Missouri, charge(s) that the
defendant, in violation of Section 569.170, RSMo, committed the class C
felony of burglary in the second degree, punishable upon conviction under
Sections 558.011 and 560.011, RSMo, in that (on) (on or about) [date], in
the (City) (County) of ___________, State of Missouri, the defendant
knowingly (entered) (remained) unlawfully in (a building) (an inhabitable
structure), located at [Briefly describe location.] and (owned) (possessed)
by [name of owner or possessor], for the purpose of committing [name of
crime] therein.
Mo. Approved Charge 23.54 (1998).
Similarly, the Missouri Approved Instruction for second degree burglary requires
the submission of either “building” or “inhabitable structure” in the verdict director:
323.54 BURGLARY IN THE SECOND DEGREE
(As to Count _____, if) (If) you find and believe from the evidence
beyond a reasonable doubt:
First, that (on) (on or about) [date], in the (City) (County) of
_____________, State of Missouri, the defendant knowingly
(entered) (remained) unlawfully (in) (a building) (an
inhabitable structure) located at [Briefly describe the location.]
and (owned) (possessed) by [name of owner or possessor],
and
Second, that defendant did so for the purpose of committing the
crime of [name of crime] therein,
then you will find the defendant guilty (under Count _____) of burglary in
the second degree.
However, unless you find and believe from the evidence beyond a
reasonable doubt each and all of these propositions, you must find the
defendant not guilty of that offense.
[Insert a definition of the crime that defendant intended.]
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M.A.I.-CR 323.54 (1998). The “Notes on Use” following this jury instruction states that
terms, including inhabitable structure, may be defined by the Court on its own motion or
if requested by a party. Id., Notes on Use, 2(b). The jury instruction defining inhabitable
structure tracks the statutory language. That is, an inhabitable structure includes a ship,
trailer, sleeping car, airplane, or other vehicle or structure where people live, conduct
business, assemble, or spend the night. Mo. Rev. Stat. § 569.010(2); M.A.I.-CR 333.00
(2000).
Similar to the Iowa burglary statute in Mathis, the Missouri burglary statute
“itemize[s] the various places that crime could occur as disjunctive factual scenarios
rather than separate elements, so that a jury need not make any specific findings (or a
defendant admissions) on that score.” 136 S. Ct. at 2249. Similar to the Iowa burglary
statute, the Missouri burglary statute defines inhabitable structure to include a ship,
trailer, sleeping car, airplane, or other vehicle or structure where people live, conduct
business, assemble, or spend the night.” Mo. Rev. Stat. § 569.010(2). Similar to the
Iowa burglary statute, Missouri statute provides alternative means for committing
second-degree burglary that are broader than simply “a building or structure” required
for generic burglary. Also, as set forth above, the prosecution need not allege or prove
the type of structure involved in an individual’s offense. Missouri’s burglary statute
could be violated by entry into an airplane, vehicle, sleeping car, and other nonbuildings. For these reasons, the Court finds the means included in the Missouri statute
are substantially similar to the means in the Iowa statute, which the Supreme Court
found to be overbroad and did not qualify as an enumerated offense under the ACCA.
Because the means of committing second-degree burglary under Missouri’s
statute are broader than the means establishing generic burglary, Petitioner’s 1979
conviction under the Missouri second-degree burglary statute does not qualify as
generic burglary and cannot be used to enhance his sentence under the ACCA.2
2
Petitioner’s first conviction for second-degree burglary occurred in 1978. Doc. #13, at
4. The Missouri second-degree burglary statute, in effect at that time, read: “Every
person who is convicted of breaking into a dwelling house, with intent to commit a felony
or to steal, but under such circumstances as do not constitute the offense of burglary in
the first degree, shall be deemed guilty of burglary in the second degree.” Mo. Rev.
Stat. § 560.045 (1959) (emphasis added). Because the Court finds Petitioner’s 1979
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Therefore, the Court finds Petitioner does not have at least three qualifying ACCA
offenses and is entitled to relief under 28 U.S.C. § 2255.
III. CONCLUSION
Petitioner’s Motion is granted. Consistent with this Order, the Court will schedule
a hearing for resentencing.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: August 30, 2016
conviction does not qualify as generic burglary, it is not necessary for the Court to
examine his earlier second-degree burglary conviction.
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