Legault v. USA
Filing
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ORDER - the Court GRANTS movant's Motion to Correct Sentence under 28 U.S.C. § 2255 and GRANTS movant's Motion for Order on Motion to Vacate 13 . The Court also GRANTS movant's Motion for Order to Seal Documents 11 . The Court O RDERS that: 1) The Probation Office prepare an updated Presentence Investigation Report; and 2) The Court will set a date for the resentencing hearing upon receipt of the Presentence Investigation Report; and 3) The Clerk's Office is directed to place Documents 1-4 under seal. Signed on 4/29/16 by District Judge Fernando J. Gaitan, Jr.(Enss, Rhonda (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BRIAN LEGAULT,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-00127-CV-W-FJG
Crim No. 10-00185-01-CR-W-FJG
ORDER
Currently pending before the Court is Brian Legault’s Motion to Correct Sentence
under 28 U.S.C. § 2255 (Doc. # 1), Motion for Order to Seal Document (Doc. # 11) and
Motion for Order on Motion to Vacate (Doc. # 13).
I. BACKGROUND
On April 26, 2011, movant pled guilty to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g). On January 27, 2012, this Court
sentenced Legault to a term of 94 months imprisonment following his conviction for
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The PSR
found that Legault had at least three qualifying prior convictions that triggered an
enhancement under the Armed Career Criminal Act (“ACCA”). The PSR determined
that Legault had a total offense level of 31, a criminal history category of VI and a
guideline range of 188 to 235 months. The government moved for a downward
departure based upon substantial assistance which was accepted by the Court.
In reliance on Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 192
L.Ed.2d 569 (2015), where the Supreme Court held that the residual clause of the
ACCA was unconstitutionally vague, Legault seeks relief under 28 U.S.C. § 2255, and
asks this Court to vacate his previous sentence of 94 months and resentence him
without application of the ACCA.
Legault asserts that his prior convictions for Missouri rape, Missouri sexual
assault and Missouri robbery in the second degree are not violent felonies after
Johnson as these convictions do not fall within the enumerated offense clause of the
ACCA nor do they have as an element the use, attempted use, or threatened use of
physical force against the person of another. Because Legault does not have three prior
convictions which qualify as violent felonies under the ACCA, he argues that he is no
longer subject to the enhanced sentence mandated by the statute. Legault received a
sentence of 94 months, which was below the statutory mandatory minimum of 180
months, but this was because the Government filed a motion for downward departure.
Legault argues that because both the guideline range of 188 to 235 months and the
statutory mandatory minimum sentence of 180 months were based on the application of
the residual clause, he is entitled to relief.
The Government opposes Legault’s motion, arguing that he has a “cognizable
Johnson claim because the calculation of his sentence reflected constitutional error in
light of Johnson, however, Legault does not have a meritorious Johnson claim, and is
not entitled to relief, because his current 94-month sentence does not exceed the 120month statutory maximum sentence for his offense of conviction.” (Government’s
Suggestions in Opposition, p. 2). The Government concedes that the reduction in the
statutory maximum from 180 to 120 months would reduce the maximum term of
supervised release from five years to three years. The Government states that this
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reduction of the term of supervised release is the only relief that Legault is entitled to
receive. (Government’s Suggestions in Opposition, p. 3).
The Court disagrees and finds that Legault is entitled to be resentenced pursuant
to Johnson.
II. DISCUSSION
The Court first finds that Legault’s motion for relief under 28 U.S.C. § 2255 is
timely because it is filed within one year of the Supreme Court’s decision in Johnson.
See 28 U.S.C. § 2255(f)(3). Pursuant to Welch v. U.S., 136 S.Ct. 1257 (2016), the Court
further finds that Johnson constitutes a new substantive rule of constitutional law that
should be applied retroactively to defendants who were previously sentenced under the
ACCA.
In light of Johnson, the court further finds that Legault’s prior Missouri convictions
for rape and sexual assault are not “violent felonies” under the ACCA. In 1991, when
Legault committed the offense of rape, the statute defined the crime as follows: “A
person commits the crime of rape if he has sexual intercourse with another person to
whom he is not married who is less than fourteen years old.” Mo.Rev.Stat. §
566.030(3). There is no element in the statute requiring the use, attempted use or
threatened use of force against the person of another. Additionally, in 1991, Missouri
defined sexual assault in the first degree as follows: “A person commits the crime of
sexual assault in the first degree if he has sexual intercourse with another person to
whom he is not married and who is incapacitated or who is fourteen or fifteen years old
knowing that he does so without that person’s consent.” Mo.Rev.Stat. § 566.040.
There is no element in this statute which requires the use, attempted use or threatened
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use of physical force against the person of another in order to commit the offense of
sexual assault in the first degree. Thus, the Court finds that neither of Legault’s
convictions for Missouri rape or sexual assault qualify as violent felonies under the
ACCA. Legault also argues that his conviction for robbery in the second degree,
defined in Mo.Rev.Stat. § 569.030 is also not a crime of violence. However, because
the Court has determined that the rape and sexual assault convictions do not qualify as
violent felonies under the ACCA, it is not necessary for the Court to reach the question
of whether second degree robbery qualifies as a violent felony under the ACCA.
Therefore, the Court concludes that Legault does not have the necessary three
predicate violent felony convictions to qualify for sentencing under the ACCA.
The Government also argues that Legault is not entitled to relief pursuant to
Johnson because his 94-month sentence did not exceed the 120 month statutory
maximum sentence. The Government argues that the “absence of a sentence in
excess of the applicable statutory maximum precludes this court from granting Legault
relief pursuant to § 2255.” (Government’s Objection to Movant’s 2255 Claim).
However, what the Government is overlooks is that Legault received a sentence below
the 120 month statutory maximum only because the Government filed a motion for
downward departure which the Court accepted. It is incorrect to focus only on the end
result and if the sentence is below 120 months, then conclude that a petitioner would
not be entitled to relief. Rather, Courts should look at what the sentence would have
been without the ACCA designation and then factor in the downward departure. Other
courts have granted relief pursuant to Johnson, when the initial sentence given was
below 120 months. In Moore v. United States, Nos. 3:10-CR-55-TAV-CCS-1, 3:16-CV-
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13-TAV, 2016 WL 482030 (E.D.Tenn. Feb. 5, 2016), the defendant was deemed to be
an armed career criminal and subject to the 180 month mandatory minimum. However,
as a result of his substantial assistance, the government moved for a downward
departure and the defendant was sentenced to 108 months imprisonment. The
defendant then filed a §2255 claim under Johnson arguing that he was entitled to be
resentenced. The Court agreed finding that “[w]ithout ACCA enhancement, the
maximum punishment to which Petitioner can lawfully be subjected to is 120 months’
incarceration, followed by three years supervised release.” Id. at *3. The Court in that
case granted the motion to vacate and resentenced petitioner to time served.
Based on the above findings, the Court concludes that Legault’s currently
imposed sentence is a per se illegal sentence, because he was incorrectly deemed to
be a armed career criminal pursuant to the residual clause of the ACCA. Even though
the sentence which he ultimately received was less than the statutory maximum, due to
his substantial cooperation, the Court finds that Legault is entitled to be re-sentenced
without the ACCA designation being applied.
III. CONCLUSION
Accordingly, the Court hereby GRANTS movant’s Motion to Correct Sentence
under 28 U.S.C. § 2255 (Doc. No. 1) and GRANTS movant’s Motion for Order on
Motion to Vacate (Doc. # 13). The Court also GRANTS movant’s Motion for Order to
Seal Documents (Doc. # 11). The Court hereby ORDERS that:
1) The Probation Office shall prepare an updated Presentence Investigation Report;
and
2) The Court will set a date for the resentencing hearing upon receipt of the
Presentence Investigation Report; and
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3) The Clerk’s Office is hereby directed to place Documents 1-4 under seal due to
the sensitive nature of the information contained within the documents.
Date: April 29, 2016
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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