Morris v. USA

Filing 12

ORDER GRANTING PETITIONER'S AMENDED MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255. Signed on 8/29/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CHRISTOPHER J. MORRIS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 16-CV-1171-ODS
Crim. Case No. 04-0414-01-ODS

ORDER GRANTING PETITIONER’S AMENDED MOTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
Pending is Petitioner Christopher J. Morris’s Amended Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. #10. Petitioner seeks to be
resentenced pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), which held
the Armed Career Criminal Act’s (“ACCA”) residual clause is unconstitutional. The
parties have stipulated Petitioner is entitled to post-conviction relief, and the parties
agree Petitioner, who was sentenced to 180 months’ imprisonment and five years of
supervised release, should be resentenced to 120 months’ imprisonment and three
years of supervised release. Doc. #11. For the following reasons, the Court accepts
the parties’ stipulation, grants Petitioner’s amended motion, vacates Petitioner’s
sentence, and resentences Petitioner to 120 months’ imprisonment and three years of
supervised release.

I. BACKGROUND
On January 25, 2007, this Court resentenced Petitioner to a term of 155 months
and 23 days’ imprisonment1 following his conviction of being a felon in possession of a
firearm, 18 U.S.C. § 922(g), and after finding he had three qualifying prior convictions
that supported imposition of a sentence under the ACCA, 18 U.S.C. § 924(e), based on
multiple convictions for burglary. At that time, the Court found each burglary conviction
1

Petitioner was originally sentenced to 188 months’ imprisonment, and the resentence
occurred after remand from the Eighth Circuit.

was a “violent felony” under the ACCA’s residual clause, which defines “violent felony”
to include any offense that “otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
In reliance on Johnson v. United States, 135 S. Ct. 2551 (2015), where the
Supreme Court held the ACCA’s residual clause was unconstitutionally vague,
Petitioner seeks relief under 28 U.S.C. § 2255. He asks the Court to vacate his
sentence, and resentence him without application of the ACCA’s residual clause.

II. DISCUSSION
The parties filed a stipulation, establishing Petitioner is entitled to relief under
Johnson. Doc. #11. The Government, through the stipulation, has waived any
procedural defenses to the motion, including timeliness. The parties request this Court
grant Petitioner’s amended motion, and resentence Petitioner to 120 months’
imprisonment, the statutory maximum sentence after applying Johnson and eliminating
the ACCA enhancement.
The Court finds, without objection from the parties, Johnson constitutes a new
substantive rule of constitutional law that should be applied retroactively to defendants
previously sentenced under the ACCA. In light of Johnson, the Court further finds,
without objection from the parties, that Petitioner’s prior Missouri convictions for burglary
no longer qualify as “violent felonies” under the ACCA’s residual clause. The Court
concludes that without those prior convictions, Petitioner does not have three necessary
predicate convictions to qualify him for sentencing under the ACCA.
Based on the these findings, the Court concludes Petitioner’s currently imposed
sentence of 155 months and 23 days is now a per se illegal sentence, not only in
violation of the laws of the United States, but also in excess of the ten-year statutory
maximum for the federal offense of being a felon in possession of a firearm. Allowing
this sentence to remain intact would violate due process, and result in a fundamental
miscarriage of justice.
The Court further finds Petitioner’s written waiver of his right to personally appear
for resentencing (Doc. #11, at 3) was executed knowingly and voluntarily. Fed. R. Crim.
P. 43(c)(1)(B) (permitting a defendant to waive his right to be present at sentencing in a
2

noncapital case by). Thus, the Court is authorized to resentence Petitioner without
further delay and without his personal appearance.
The Court finds, without objection from the parties and pursuant to Petitioner’s
waiver, Petitioner should be resentenced to a term of 120 months. The Court directs an
amended judgment be entered in Case No. 04-00414-01-CR-W-ODS, substituting 120
months as the term of imprisonment to replace the previously imposed 155 months and
23 days’ imprisonment term, and substituting three years of supervised release to
replace the previously imposed five years of supervised release. All previously imposed
conditions of release shall remain unchanged. Additionally, the following condition shall
be added to Petitioner’s supervised release: if a viable home plan has not been
approved by the date of release from custody, Petitioner shall reside in and satisfactorily
participate in a residential reentry center program until an acceptable home plan is
approved, but not to exceed a period of 60 days.
Finally, the Court finds that because Morris has already been in custody for more
than 120 months by reason of his conviction under 18 U.S.C. § 922(g), he should be
released from imprisonment and placed on supervised release without delay.

III. CONCLUSION
For the reasons set forth above, the Court grants Petitioner’s Amended Motion to
Correct Sentence under 28 U.S.C. § 2255, vacates Petitioner’s previous sentence, and
orders Petitioner be sentenced to 120 months’ imprisonment and three years of
supervised release to follow.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: August 29, 2017

3