Brown v. USA
ORDER DENYING PETITIONER'S MOTION TO ALTER OR AMEND. Signed on 2/22/17 by District Judge Ortrie D. Smith. (Related Case 05-03166-CR-S-ODS) (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
JERRY N. BROWN,
UNITED STATES OF AMERICA,
Civil No. 16-03187-CV-S-ODS
Crim. No. 05-3166-CR-S-ODS
ORDER DENYING PETITIONER’S MOTION TO ALTER OR AMEND,
Pursuant to the parties’ supplemental briefing related to Petitioner’s Motion to
Alter or Amend (Doc. #12), the Court finds Petitioner is not entitled to relief under
Johnson v. United States, 135 S. Ct. 2551 (2015).
A. Criminal Proceeding
In August 2007, Petitioner entered a plea of guilty to being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g). Ordinarily, the offense of being a felon in
possession of a firearm carries a maximum punishment of ten years’ imprisonment. 18
U.S.C. § 924(a)(2). However, the Armed Career Criminal Act (“ACCA”) requires a
minimum sentence of fifteen years if a person violating 18 U.S.C. § 922(g) has three
prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 922(e)(1).
A presentence investigation report (“PSR”) was prepared, finding Petitioner had
three qualifying prior convictions of burglary, manufacturing marijuana, and first degree
sexual abuse that triggered a minimum sentence of fifteen years under the ACCA’s
“violent felony” provision. Based upon the ACCA enhancement, Petitioner faced a
statutory mandatory minimum sentence of fifteen years. 18 U.S.C. § 922(e)(1). In
December 2007, Petitioner was sentenced to 180 months’ imprisonment and five years
of supervised release. On appeal, the Eighth Circuit affirmed Petitioner’s sentencing.
United States v. Brown, 323 F. App’x 479 (8th Cir. 2009).
B. Habeas Proceeding
Petitioner, initially proceeding pro se, instituted this matter by filing a motion to
correct sentence under 28 U.S.C. § 2255, which was amended once he was
represented by counsel. Doc. #1; Doc. #5. Petitioner sought resentencing pursuant to
Johnson v. United States, which held the ACCA residual clause was unconstitutional.1
The only argument before this Court when it decided Petitioner’s amended motion to
correct his sentence was whether Petitioner’s Missouri conviction for sexual assault in
the first degree was a predicate offense under ACCA. Doc. #5. The Court determined
that particular issue was decided by the Eighth Circuit on direct appeal. Case No. 05CR-31660-ODS-1 (Doc. #79) (citing United States v. Brown, 323 F. App’x 479 (8th Cir.
2009)). Petitioner was barred from religitating the same issue in a motion to vacate. Id.
On September 6, 2016, Petitioner, through his counsel, filed a motion to alter or
amend the Court’s judgment. Doc. #12. Thereafter, Petitioner, on his own, filed a
“supplement” to his counsel’s motion, asking the Court to consider whether his “Missouri
burglary” conviction was an ACCA qualifying offense. Doc. #13. Respondent’s
opposition to the motion to alter or amend did not address the argument raised by
Petitioner’s supplement. Doc. #15. Likewise, in the reply, Petitioner’s counsel did not
address Petitioner’s pro se argument but offered to provide supplemental briefing on the
issue. Doc. #16.
On October 17, 2016, the Court denied Petitioner’s motion to alter or amend.
Doc. #17. But the Court noted Petitioner’s pro se argument that his burglary conviction
did not qualify as an ACCA predicate offense. Id., at 2. In the interest of achieving a
just result, the Court directed the parties to file supplemental briefs addressing whether
Petitioner’s Missouri burglary conviction qualifies as an ACCA predicate offense. Id.
On November 2, 2016, both parties filed their briefs and supporting documents. Doc.
#18; Doc. #19. On November 30, 2016, the Court directed the parties to submit
According to ACCA, 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 constitutes the “residual
clause” held unconstitutional in Johnson.
additional briefing, noting the parties predicated their analyses on the current Missouri
burglary statutes, not the statute under which Petitioner was convicted. Doc. #20. On
December 21, 2016, the parties submitted their supplemental briefs. Doc. #21; Doc.
On January 10, 2017, the Court noted no documentation associated with
Petitioner’s burglary conviction was filed, and directed the Probation Office to file said
documentation. Doc. #23. On January 18, 2017, the Information, Complaint, Sentence
and Judgment, and other related documents were filed. Doc. #24. The Court invited
the parties to provide supplemental briefing based upon the filed documentation. Doc.
#23. On February 8, 2017, the parties filed their supplemental briefs. Docs. #25, 26.
Whether Petitioner’s Missouri burglary conviction is an ACCA predicate offense is now
ripe for consideration.
“To determine whether a past conviction qualifies as a violent felony, we apply
the ‘categorical approach,’ under which we ‘look only to the fact of conviction and the
statutory definition of the prior offense.” United States v. Sykes, 844 F.3d 712, 715 (8th
Cir. 2016) (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)). If the statute
lists elements in the alternative, the court may apply the modified categorical approach,
under which the court may look at a limited class of documents to determine “what
crime, with that elements, a defendant was convicted of.” Id. (quoting Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016)).
Burglary is one of the enumerated violent felonies under 18 U.S.C. §
924(e)(2)(B). In 1977, Missouri had several burglary statutes. The Complaint charged
Petitioner, on or about December 8, 1977, “did wilfully, unlawfully, feloniously, and
burglariously, forcibly break and enter a building to wit: the Oregon County R-IV School
District high school building…with the felonious and burglarious intent to steal, take, and
carry away certain goods, wares, merchandise, or personal property then and there
kept in said building…and to convert same to his own use.” Doc. #24, at 2. The
Complaint listed sections 560.070 through 560.110 of the Missouri Revised Statutes.
Section 560.070, in effect at the time of Petitioner’s crime, provided the following:
Every person who shall be convicted of breaking or entering any building,
the breaking and entering of which shall not be declared by any statute of
this state to be burglary in the first degree, or any booth or tent, or any
boat or vessel, or railroad car in which there shall be at the time any
human being or any goods, wares, merchandise or other valuable thing
kept or deposited, with the intent to steal or commit the crime therein, shall
on conviction be adjudged guilty of burglary in the second degree.
Mo. Rev. Stat. § 560.070 (1969). Section 560.080 states persons shall be convicted of
“breaking and entering any vacant building, in which there shall be no human being, and
in which there shall be no goods, wares, merchandise or other valuable things kept, and
shall take or attempt to take… any lead pipe, brass or copper, or any other valuable
thing attached to or being part of the building with the intent to steal or to commit any
felony therein….” Id., § 560.080 (1969).2 The parties seem to agree Petitioner was
charged and convicted under section 560.070. See Doc. #25, at 4-6; Doc. #26, at 1.
Given the language contained in the Complaint and the statutory language, the Court
subscribes to the parties’ view.
The question before this Court is whether section 560.070 contains the elements
of generic burglary. An offense constitutes burglary under 18 U.S.C. § 924(e)(2)(B) if it
contains the elements of generic burglary, which is defined as unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a crime.”
Sykes, F.3d at 715 (quoting Taylor, 495 U.S. at 598). “Any enhanced sentence under §
924(e) for a prior burglary conviction must rest on a showing that [the] prior conviction
necessarily involved…facts equating to generic burglary.” Id. (quoting Shepard v.
United States, 544 U.S. 13, 24 (2005) (internal quotations omitted)).
The other statutes contained in the Complaint are not instructive to the Court’s
analysis. See Mo. Rev. Stat. § 560.075 (1969) (setting forth the crime of burglary
involving a bank building); Mo. Rev. Stat. § 560.085 (1969) (breaking out of a dwelling
house is not a burglary, unless otherwise specified by another statute); Mo. Rev. Stat. §
560.095 (1969) (listing punishment for burglary); Mo. Rev. Stat. § 560.100 (1969)
(defining burglary with explosives); Mo. Rev. Stat. 560.105 (1969) (providing penalty for
burglary with explosives); Mo. Rev. Stat. § 560.110 (1969) (addressing joint prosecution
for burglary and stealing). Section 560.090 indicates the breaking into a schoolhouse is
a misdemeanor; however, the Complaint charged Petitioner with a felony. Thus, section
560.090 is inapplicable to the Court’s analysis.
Recently, the Eighth Circuit shed light on this particular issue by examining
Missouri’s current second degree burglary statute, section 569.170. Sykes, 844 F.3d at
715. According to that statute, a person commits second degree burglary 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
(1979). The Eighth Circuit found that statute conforms to the elements of generic
burglary because the statute contains at least two alternative elements: burglary of a
building, and burglary of an inhabitable structure. Sykes, 844 F.3d at 715. The Eighth
Circuit concluded “because burglary of ‘a building’ describes an element of seconddegree burglary rather than a means, our decision does not run afoul of Mathis.” Id.
(citing Mathis, 136 S. Ct. at 2253).
The predecessor burglary statute, at issue here, is similar. It provides several
alternative elements: burglary of a building, burglary of a booth or tent, burglary of a
boat or vessel, or burglary of a railroad car. Mo. Rev. Stat. § 560.070 (1969). Based
upon Sykes, these locations are elements, not means, for committing burglary. 844
F.3d at 715. While burglary that includes the unlawful entry of a booth, tent, boat,
vessel, or railroad car likely does not constitute generic burglary, burglary that includes
the “breaking and entering any building” constitutes generic burglary. Petitioner does
not contest he was charged with burglary of a “building.” Doc. #24, at 2. Accordingly,
the Court finds section 560.070 contains the elements of generic burglary, and
Petitioner’s second degree burglary conviction fits within the definition of generic
burglary for purposes of the ACCA. Thus, Petitioner’s motion for relief from his
sentence under Johnson is denied.
For the foregoing reasons, Petitioner’s request for relief pursuant to Johnson v.
United States is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: February 22, 2017
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