Unverzagt v. USA
ORDER AND OPINION (1) GRANTING RESPONDENT'S MOTION TO LIFT STAY, (2) DENYING PETITIONER'S MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255, AND (3) DENYING CERTIFICATE OF APPEALABILITY. Signed on 4/24/17 by District Judge Ortrie D. Smith. (Related Case No. 04-03156-01-CR-W-ODS.) (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
NORMAN DALE UNVERZAGT,
UNITED STATES OF AMERICA,
Case No. 16-03497-CV-S-ODS
Crim. No. 04-03156-01-CR-S-ODS
ORDER AND OPINION (1) GRANTING RESPONDENT’S MOTION TO LIFT STAY,
(2) DENYING PETITIONER’S MOTION TO CORRECT SENTENCE UNDER
28 U.S.C. § 2255, AND (3) DENYING CERTIFICATE OF APPEALABILITY
Pending are Petitioner’s Second Motion to Correct Sentence under 28 U.S.C. §
2255 (Doc. #4), and Respondent’s Motion to Lift Stay (Doc. #12). The Court grants
Respondent’s motion, lifts the stay, and denies Petitioner’s motion.
On January 25, 2005, 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). But
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.”
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 v. United
States, 135 S. Ct. 2551 (2015).
A presentence investigation report (“PSR”) was prepared after Petitioner pled
guilty. The PSR found Petitioner had three convictions, two for second-degree burglary
of a building and one for first-degree assault, qualifying him for an ACCA enhanced
sentence.1 Because Petitioner had three qualifying ACCA predicate offenses, he was
sentenced to 180 months’ imprisonment on May 5, 2005. In light of Johnson, Petitioner
asserts his convictions for second-degree burglary of a building no longer qualify as
predicate offenses, and thus, he is not subject to the ACCA’s enhanced sentencing
After Petitioner filed this matter, he requested a stay pending the Eighth Circuit’s
decision on a motion for rehearing in Sykes v. United States, 844 F.3d 712 (8th Cir.
2016). The Court granted Petitioner’s request. The Eighth Circuit recently denied the
motion for rehearing in Sykes. Case No. 14-3139, 2017 WL 1314937 (8th Cir. Mar. 17,
2017). The Government argues the stay should be lifted, and Petitioner’s motion to
vacate his sentence should be denied. Petitioner admits Sykes “precludes relief for
him,” but asks the Court to issue a certificate of appealability because “the law is far
from settled on this issue.” Doc. #13.
“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. §
2255(a). Although Petitioner previously filed a motion to vacate on separate grounds,
the Eighth Circuit granted his motion to file a second or successive petition for relief
under 28 U.S.C. § 2255. Unverzagt v. United States, No. 16-2998 (8th Cir. 2016). The
Court also finds, based upon Welch v. United States, 136 S. Ct. 1257 (2016), that
Johnson applies retroactively.
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,
Petitioner does not argue his conviction for first-degree assault is not a violent felony
under the ACCA.
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. United States, 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).
A person commits Missouri 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 Missouri second-degree burglary conforms to the elements of generic
burglary. Sykes, 844 F.3d at 715. Burglary of a “building” or an “inhabitable structure”
represent alternative elements, rather than means of committing second-degree
burglary. Id. Therefore, Missouri’s second-degree burglary conforms to the generic
definition of burglary set forth in Taylor and Mathis, and is a qualifying predicate offense
for purposes of the ACCA. Id.
Sykes dictates the Court’s decision here. Petitioner’s second-degree burglaries
were of buildings, not inhabitable structures. His convictions for second-degree
burglary of buildings conform to the elements of generic burglary, and remain violent
felonies for the ACCA’s sentencing purposes. The Court finds Petitioner has three
qualifying predicate offenses under the ACCA, and denies his motion.
III. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only
“where a petitioner has made a substantial showing of the denial of a constitutional
right.” To satisfy this standard, a petitioner must show a “reasonable jurist” would find
the district court ruling on the constitutional claim(s) “debatable or wrong.” Tennard v.
Dretke, 542 U.S. 274, 276 (2004). Petitioner argues “reasonable jurists are debating
the divisibility” of the Missouri burglary statue. He cites the dissenting opinion to the
Eighth Circuit’s decision to rehear Sykes en banc, and the Eighth Circuit’s decision in
United States v. Naylor, Case No. 16-2047, 2017 WL 1163645 (8th Cir. Mar. 28, 2017).
But those cases elucidate Petitioner’s Missouri second-degree burglary convictions
qualify as predicate ACCA offenses. Accordingly, a certificate of appealability is denied.
Respondent’s motion to lift the stay is granted. Petitioner’s motion to vacate his
sentence is denied, and a certificate of appealability is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: April 24, 2017
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