Reeves v. USA
ORDER: The Motion to Correct Sentence under 28 U.S.C. § 2255 (doc. 1 ) is GRANTED. The judgment and commitment in United States v. Lloyd Reeves, Case No. 13-03084-01-CR-S-RK is VACATED and a resentencing hearing will be set. Signed on 4/27/2017 by District Judge Roseann Ketchmark. (DO)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Civ. No. 16-03078-CV-W-RK1
Crim. No. 13-03084-01-CR-S-RK2
Before the Court is Movant Lloyd Reeves’s (“Movant”)’s motion to vacate, set aside, or
correct his sentence as an armed career criminal 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
(“ACCA”)’s 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 serious drug offenses or violent felonies under the
enumerated offenses clause, not under the residual clause. The Government also argues that
Movant’s motion is not timely because Movant seeks relief based on statutory interpretation
principles set forth in Mathis v. United States, 136 S. Ct. 2243 (2016), and does not rely on the
new rule of law announced in Johnson. For the reasons stated below, Movant’s motion is
GRANTED, Movant’s sentence is VACATED, and a resentencing hearing is ORDERED.
On February 3, 2014, Movant pleaded guilty (doc. 23) pursuant to a plea agreement
(doc. 31) to Count One of the indictment, which charged him with being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (doc. 1). In his plea agreement,
Movant’s civil case was originally assigned to District Judge Gary A. Fenner with Case No. 1603078-CV-W-GAF. On March 4, 2016, Movant’s civil case was reassigned and transferred to District
Judge Roseann Ketchmark and was assigned this new Case No.
Movant’s criminal case was originally assigned to District Judge Gary A. Fenner with Case No.
13-03084-01-CR-S-GAF. On June 28, 2016, Movant’s criminal case was reassigned and transferred to
District Judge Roseann Ketchmark and was assigned this new Case No.
Movant acknowledged that “the minimum penalty the Court may impose is fifteen (15) years
imprisonment[.]” (Doc. 31 at 3.)
A presentence investigation report (“PSR”) was prepared on April 24, 2014. (Doc. 25.)
The PSR stated that Movant had “at least three prior convictions for a violent felony or serious
drug offense” under the ACCA. (Id. at 6.) It then listed four of Movant’s convictions in
Missouri: (1) a 1989 second-degree burglary of an “inhabitable structure,” (2) a 1995 seconddegree burglary of a “residence,” (3) a 1999 second-degree burglary of an “inhabitable
structure,” and (4) a 2005 unlawful use of a weapon. (Id. at 6, 7-10.) The PSR also stated that
Movant was “an armed career criminal and subject to an enhanced sentence under the provisions
of 18 U.S.C. § 924(e).” (Id. at 6.) Movant did not object to the PSR. (Doc. 25 at 15.)
18 U.S.C. § 924(e) of the ACCA carries a minimum penalty of fifteen years’
imprisonment, which, as stated previously, Movant acknowledged he was subject to when he
pleaded guilty. (Doc. 31 at 3.) Accordingly, on September 29, 2014, Movant was sentenced to
fifteen years’ imprisonment, and a three-year period of supervised release. (Doc. 28.) Movant
did not directly appeal his conviction or sentence.
Movant then filed this motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 on February 25, 2016, arguing that the Supreme Court’s decision in Johnson
renders his sentence illegal. (Doc. 1.)
Standard of Review
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, 191 F.Supp.3d 989, 992–93 (W.D. Mo. 2016) (denying
Government’s motion for reconsideration on the issue of the burden of proof).
Timeliness of Movant’s Motion
There is a one-year statute of limitation period for a movant to file a § 2255 habeas
action. 28 U.S.C. § 2255(f). This one-year period runs from the latest of the following four
(1) the date on which the judgment of conviction becomes final;
(2) the date on which an applicable impediment made by the government is removed;
(3) the date on which a new rule of law was handed down if deemed retroactively
applicable to cases on collateral review; or
(4) the date newly discovered applicable facts were discovered.
Movant’s conviction became final in October of 2014. Movant did not file the instant
motion until February of 2016 – nearly five months past the one-year limitation period.
Movant’s motion is still timely, however, if the case he relies on triggers 28 U.S.C.
§ 2255(f)(3)’s tolling provision.
Johnson was decided on June 26, 2015. Movant filed this
instant motion on June 22, 2016. Mathis was decided on June 23, 2016.
§ 2255(f)(3) is triggered if Movant relies on a “new rule of law” that was made
retroactively applicable to cases on collateral review. Movant argues that his claims are based on
Johnson, and since Johnson announced a new rule of law that applies retroactively to his 2014
sentence, his motion is timely under 28 U.S.C. § 2255(f)(3). The Government argues that
Movant’s claims are not based on Johnson, but are rather based on statutory interpretation
principles set forth in the Mathis line of cases; therefore, Movant’s motion is untimely because
§ 2255(f)(3) is not triggered by Mathis.
As discussed below, Movant’s claims are based on Johnson. The deadline for filing a
motion based on Johnson was June 26, 2016; Movant filed this motion on June 22, 2016, which
was four days before the deadline. His motion is therefore timely.
2. Application of Johnson and Mathis
Johnson invalidated the residual clause of the ACCA, which was the announcement of a
“new” rule that is retroactively applicable on collateral review. Welch v. United States, 136 S.
Ct. 1257 (2016). Mathis, on the other hand, did not announce a “new” rule. United States v.
Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016). It merely clarified when
a court can use the modified categorical approach to determine whether a prior conviction falls
under the enumerated offenses clause of the ACCA. Mathis, 136 S. Ct. at 2257. Therefore,
Johnson – a “new rule” – triggers § 2255(f)(3)’s timeliness requirement, while Mathis – an
“old rule” – does not.
Key to determining whether Movant’s motion is timely, then, is
determining which case – Johnson or Mathis – entitles him to relief.
At issue in Johnson was whether the residual clause of the ACCA, 18 U.S.C. §
924(e)(2)(B)(ii), was unconstitutionally vague. The ACCA requires the enhanced statutory
range of punishment for anyone convicted of violating § 922(g) if the person has three previous
convictions that qualify as either a “violent felony” or as a “serious drug offense.” 18 U.S.C. §
924(e)(1). A “violent felony” is defined under the ACCA as a crime that “has as an element the
use, attempted use, or threatened use of physical force against the person of another” (the “force
clause”); “is burglary, arson, or extortion, [or] involves use of explosives” (the “enumerated
clause”); or “otherwise involves conduct that presents a serious potential risk of physical injury
to another” (the “residual clause”). Id. § 924(e)(2)(B)(i), (ii). The Johnson Court held that a
sentence that was enhanced under the residual clause of the ACCA violates the Constitution’s
guarantee of due process because it is unconstitutionally vague. Johnson, 135 S. Ct. at 2563.
The United States Supreme Court then held that the rule articulated in Johnson applies
retroactively to cases on collateral review. Welch, 136 S. Ct. at 1258.
In Mathis, the Supreme Court addressed the enumerated offenses clause of the ACCA.
Mathis, 136 S. Ct. at 2248–53. In determining whether a prior conviction qualifies as an ACCA
predicate conviction under the enumerated clause, the Court utilizes four steps. In step one, the
focus is solely on comparing the underlying elements of the criminal statute involved in the prior
conviction with the elements involved in the enumerated offense.
The elements of the
underlying criminal statute must categorically (or completely) match the elements of the generic
definition of the enumerated offense for a conviction under that statute to always qualify as an
ACCA enumerated offense. This step one approach is called the “categorical approach.” If the
criminal statute contains all of the elements but also includes additional aspects of how the crime
can be committed, it is “overly-broad,” and the analysis then proceeds to step two. In step two, a
determination is then made as to whether the additional or over-inclusive aspects of the criminal
statute set forth alternate means or set forth alternate elements. If the over-inclusive aspects are
determined to be alternate means, then the analysis stops and the criminal statute cannot ever
qualify as a predicate offense under the enumerated clause. If the over-inclusive aspects are
determined to be alternative elements, then the analysis proceeds to step three. Step three
involves the determination of whether the criminal statute is divisible or not. An over-inclusive
criminal statute has a divisible structure when the statute defines multiple crimes by listing one
or more elements in the alternative. United States v. Lamb, 847 F.3d 928, 931 (8th Cir. 2017).
If the criminal statute is divisible, then you proceed to step four. In step four the “modified
categorical approach” is utilized to allow a court to review certain case documents from the prior
state proceedings to determine if the elements proven for the conviction (rather than the facts that
led to the conviction) categorically match the elements of the generic offense. If there is a
complete match, then under this “modified categorical approach” the prior conviction would
qualify as a predicate offense under the enumerated clause. Mathis, 136 S. Ct. at 2248-53.
The underlying criminal convictions in Mathis involved the Iowa burglary statute. 136 S.
Ct. at 2250. Specifically, the Court held that the elements of Iowa’s burglary statute—which
apply 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.” Id. The
Court then found the additional aspects of the statute allowing for a burglary of “land, water, or
air vehicle” were alternate “means” of committing the offense rather than alternate “elements” of
committing the offense. Id. Therefore, the Iowa burglary statute was found to not be divisible,
and the prior convictions under the Iowa burglary law could not give rise to a sentence
enhancement under the ACCA. Id. at 2256, 2257.
Although any relief Movant may be entitled to would involve both a Johnson and Mathis
analysis, “[a]s 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.” Redd v. United States, 2017 WL 633850, at *3 (E.D. Mo. Feb. 16,
2017) (citing Taylor v. United States, 2016 WL 6995872, at *3–5 (E.D. Mo. Nov. 30, 2016))
(other citations omitted); see also United States v. Ladwig, 192 F.Supp.3d 1153, 1159-61 (E.D.
Wash. 2016). This is because without Johnson’s invalidation of the residual clause, Movant
would not have a claim under Mathis that he is not an armed career criminal. It is clear after
Mathis that Movant's second-degree burglaries of inhabitable structures may possibly no longer
automatically qualify as predicate ACCA violent felonies under the enumerated clause. But
these convictions would still have qualified, at the time of Movant’s sentencing, as predicate
felonies 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.”).
Johnson’s invalidation of the residual clause [can Movant] reasonably argue that he is no longer
eligible for the ACCA enhancement.” Ladwig, 192 F.Supp.3d at 1160-61; see also Taylor, 2016
WL 6995872, at *3.
Because Johnson provides Movant with an avenue of relief that was not previously
available to him, his motion utilizes the Johnson decision and therefore relies on a “right [that]
has been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review[.]” 28 U.S.C. § 2255(f)(3).
3. Movant’s status as an Armed Career Criminal
The Court now addresses the merits of the instant motion. Movant’s conviction for being
a felon unlawfully in possession of a firearm would normally carry a maximum sentence of ten
years’ imprisonment. 18 U.S.C. § 924(a)(2). The sentencing court determined, however, that
Movant had at least three predicate convictions, which increased his potential sentence from a
maximum of ten years’ imprisonment to a minimum of fifteen years’ imprisonment. 18 U.S.C. §
As such, if a retroactively applicable change in the law – such as Johnson –
establishes that Movant may not have three predicate convictions, then his fifteen-year sentence
could be illegal.
Movant had four potential ACCA predicate convictions at his sentencing in 2014: two for
burgling an “inhabitable structure,” one for burgling a “residence,” and one for the unlawful use
of a weapon. Movant contends that, after the announcement of Johnson in June of 2015, his
burglaries of an inhabitable structure no longer count under the residual clause of the ACCA. He
additionally contends that neither conviction ever counted under the enumerated clause of the
ACCA. If that is so, then Movant has only two potential ACCA predicate convictions, and his
current sentence is illegal.
Because Johnson invalidated the residual clause, Movant’s convictions for burgling an
inhabitable structure count as ACCA predicate convictions only if they qualify under the
enumerated clause.3 Stated simply, if a crime’s “elements are the same as, or narrower than,
Movant’s burglaries do not appear to count under the “force” clause of the ACCA, and the
Government has not briefed nor advanced that argument.
those of the generic offense [of burglary,]” then that conviction may count under the enumerated
clause; if the elements are broader, then that conviction may not. Mathis, 136 S. Ct. at 2249.
The Eighth Circuit recently held that Missouri’s second-degree burglary statute, Mo. Rev.
Stat. § 569.170(1), enumerates “at least two alternative elements: burglary ‘of a building’ and
burglary of ‘an inhabitable structure,’ separated in the text by the disjunctive ‘or.’” United
States v. Sykes, 844 F.3d 712, 715 (8th Cir. 2016) (citing Mathis, 136 S.Ct. at 2256). Therefore,
§ 569.170(1) is divisible, and courts should apply the modified categorical approach to determine
whether a conviction pursuant to § 569.170(1) matches the generic description of burglary.
Under the modified categorical approach, “a sentencing court looks to a limited class of
documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was convicted of.” Mathis, 136 S. Ct. at
2249 (citing Taylor v. United States, 495 U.S. 575, 602 (1990)).
Here, the only issue is the locational element: “The generic offense [of burglary] requires
unlawful entry into a ‘building or other structure.’” Mathis, 136 S. Ct. at 2250 (citing Taylor,
495 U.S. at 598). Movant’s burglary convictions that are currently at issue were for burgling an
“inhabitable structure” in Missouri. That locational element, at first glance, seems to match the
generic offense. Under Missouri law, however, an “inhabitable structure . . . includes a ship,
trailer, sleeping car, airplane, or other vehicle or structure . . . .” Mo. Rev. Stat. § 569.010(2). A
conviction for burgling an “inhabitable structure,” then, seems to cover a broader swath of
conduct than that of the generic offense. As such, on the record before the Court,4 Movant’s
The Court is not convinced that an indictment using “inhabitable structure” as the locational
element is per se broader than the generic offense after Mathis. But see Bess, 655 Fed. App’x. at 519.
Mathis announced three purposes for its “elements vs. means” distinction: 1) the text of the ACCA favors
that approach; 2) the potential conflict with Apprendi v. New Jersey, 530 U.S. 466 (2000); and 3) the
defendant may not have a reason to contest a “non-elemental fact” in the record of prior conviction.
Mathis, 136 S. Ct. 2243, 2252-53. But there are situations where none of those concerns are present.
First, the modified categorical approach under the ACCA has always allowed the court to look at
some facts, especially in the context of guilty pleas. Shepard v. United States, 544 U.S. 13, 26 (2005)
(“We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a
nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial
record of this information.”)
Second, defendants that plead guilty and consent to judicial fact-finding, as Movant did, waive
their Apprendi rights. Blakely v. Washington, 542 U.S. 296, 310 (2004) (“[N]othing prevents a defendant
from waiving his Apprendi rights.”) And where a defendant concedes in his factual basis that he should
be sentenced under Section 924(e), as Movant did, (crim. doc. 15 at 3), there is not a concern that “there
convictions for burgling an “inhabitable structure” do not appear to count as “violent felonies”
under the enumerated clause of the ACCA.
Because both of Movant’s burglary convictions of “inhabitable structures” cannot count
under the residual clause, and – on the current record before the Court – do not appear to count
under the enumerated clause, those convictions may possibly not count as ACCA predicate
convictions. As such, the record indicates that Movant has only two predicate convictions:
burgling a residence and unlawful use of a weapon. Consequently, the Court is not certain that
Movant has at least three ACCA predicate convictions that count as “violent felonies” or
“serious drug offenses” under the ACCA, and he may be serving a sentence that is not permitted
by the laws of the United States. Movant is therefore entitled to a resentencing hearing to
determine whether he has three ACCA predicate convictions.
IT IS HEREBY ORDERED that movant Lloyd Reeve’s Motion to Vacate, Set Aside,
or Correct Sentence (doc. 1) is GRANTED.
IT IS FURTHER ORDERED that the judgment and commitment in United States v.
Lloyd Reeves, Case No. 13-03084-01-CR-S-RK is VACATED.
IT IS FURTHER ORDERED that the United States Probation Office shall prepare an
updated presentence investigation report on Mr. Reeves. Movant is GRANTED a new
sentencing hearing. Until the sentencing hearing, Mr. Reeves’ detention order 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.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: April 27, 2017
may be [ ] doubt as to the judgment which should be given, if the defendant [pleads guilty.]” Alleyne v.
United States, 133 S. Ct. 2151, 2160 (2013). Stated another way, the defendant knew and agreed that he
was subject to the statutory-mandated fifteen-year minimum sentence prior to pleading guilty.
Third, there are certain situations where a defendant would have a pressing reason to contest the
way in which he committed the crime. Therefore, at resentencing, the Court asks the Government to
produce all Shepard documents from the predicate convictions so the Court can determine, consistent
with its understanding of the spirit of Mathis, whether Movant’s burglary convictions may count as
ACCA predicate convictions.
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