Brunken v. United States of America

Filing 2

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255), filed by Tracy Lynn Brunken. Motion is denied. Signed by Honorable David L. Russell on 4/10/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,

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Plaintiff,
v.
TRACY LYNN BRUNKEN,
Defendant.

Case No. CR-11-307-R
CIV-16-107-R

ORDER
Before the Court is Defendant’s Motion under 28 U.S.C. § 2255 to correct his
sentence. [ECF 16-107, Doc. 1]. The Government has responded. [Doc. 34].1 Defendant
replied. [Doc. 40]. The Government then filed a surreply [Doc. 45], to which Defendant
filed a supplemental response. [Doc. 48].
For the following reasons, the Court DENIES Defendant’s Motion.
Discussion
On September 20, 2011, a grand jury sitting in the Western District of Oklahoma
indicted Defendant Tracy Brunken for possessing a firearm as a felon, in violation of 18
U.S.C. § 922(g)(1). Federal law prohibits convicted felons from possessing firearms,
imposing a punishment of at least fifteen years' imprisonment for violators with three or
more prior convictions for serious drug offenses or violent felonies under the Armed Career
Criminal Act (ACCA). 18 U.S.C. §§ 922(g), 924(e)(1). Mr. Brunken pled guilty to being

1
Unless otherwise indicated, document numbers refer to ECF 11-307.

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a felon in possession of a firearm [Doc. 15], and because he had three prior convictions for
a serious drug offense or a violent felony under the ACCA, the Court sentenced him to 200
months’ imprisonment, followed by five years of supervised release. [Doc. 26].
Mr. Brunken argues that in light of the Supreme Court’s decision in Johnson v.
United States, 135 S.Ct. 2551 (2016), he no longer has three prior enhancement-qualifying
convictions (serious drug offenses or violent felonies) under 18 U.S.C. § 924(e)(1) of the
ACCA. If that is the case, his current sentence exceeds the 10-year statutory maximum for
non-ACCA offenses and thus violates due process. 18 U.S.C. § 924(a)(2).
Before Johnson, the ACCA defined the term “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that met one of three
requirements: (1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another”—referred to as the elements clause; (2) is “burglary,
arson, or extortion, or involves the use of explosives”—referred to as the enumeratedoffense clause; or (3) “otherwise involves conduct that presents a serious potential risk of
physical injury to another”—referred to as the residual clause. § 924(e)(2)(B)(i), (ii).
Johnson affected the validity of only the residual clause, with the Supreme Court deeming
it unconstitutionally vague since it “both denie[d] fair notice to defendants and invite[d]
arbitrary enforcement by judges.” 135 S.Ct. at 2557. Now, in the wake of Johnson, a prior
conviction qualifies as a violent felony under the ACCA only if it falls within the
enumerated-felony clause or the elements clause. The Supreme Court would later make
Johnson retroactive to cases on collateral review such as Mr. Brunken’s. Welch v. United
States, 136 S.Ct. 1257, 1265 (2016).
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So as it stands today, § 924(e)(1) still calls for an enhanced sentence if a person who
violates § 922(g)—possessing a firearm as a felon—has three or more earlier convictions
for a serious drug offense or a violent felony. The statutory hiccup after Johnson is merely
that a defendant’s conviction qualifies as a violent felony only if it falls under the elements
clause or the enumerated-offense clause. Mr. Brunken’s requested relief thus depends on
whether, in light of Johnson, he still has three prior convictions that qualify as a serious
drug offense or a violent felony. If he does, then he is not entitled to relief. If he does not,
then relief habeas relief must follow.
The Court need not rehash Mr. Brunken’s extensive criminal history to conclude
that he is not entitled to relief under 28 U.S.C. § 2255: Mr. Brunken has one prior
conviction for a serious drug offense and two prior convictions for a violent felony.
First, Mr. Brunken’s conviction for a serious drug offense. The ACCA includes in
its definition of “serious drug offense” a state-law conviction “involving . . . possessing
with intent to . . . distribute, a controlled dangerous substance . . . for which a maximum
term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. §
924(e)(2)(A)(ii). Mr. Brunken pled guilty on April 10, 1995, to possession of a controlled
dangerous substance (marijuana) with intent to distribute, in violation of Okla. Stat. tit. 63,
§ 2–401(B)(2). [Doc. 23, ¶ 34]. This conviction qualifies as a serious drug offense under
the ACCA because, one, it involved the intent to distribute marijuana, a Schedule I
substance under 21 U.S.C. §§ 802(7), 812(c)(1), and, two, it carries a possible punishment
of life. See United States v. McMahon, 91 F.3d 1394, 1398 (10th Cir. 1996) (upholding

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district court’s finding that defendant’s former conviction for possession of marijuana with
intent to distribute qualified as an ACCA predicate offense).
Mr. Brunken’s other two ACCA-enhancement-qualifying offenses consist of
convictions for first-degree burglary. On April 10, 1995, Mr. Brunken pled guilty to two
incidents of first-degree burglary: one that he committed on November 13, 1993 [PSR,
Doc. 22, ¶ 34, CF-1993-7023], and another that occurred March 19, 1994 [PSR, Doc. 22,
¶ 35, CF-1994-2161]. Under Supreme Court precedent, these convictions for first-degree
burglary in Oklahoma qualify as violent felonies for purposes of the ACCA. The Supreme
Court has created a generic definition of burglary to use in determining whether a statelaw conviction for burglary qualifies as an enhancement-qualifying offense under the
enumerated-offense clause of the ACCA. See Taylor v. United States, 495 U.S. 575 (1990).
In order to qualify, the state-law definition of burglary must meet Taylor’s generic
definition of burglary: an “unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599. Oklahoma’s firstdegree burglary statute mirrors this generic definition of burglary:
Every person who breaks into and enters the dwelling house of
another, in which there is at the time some human being, with
intent to commit some crime therein, either:
1. By forcibly bursting or breaking the wall, or an outer door,
window, or shutter of a window of such house or the lock
or bolts of such door, or the fastening of such window or
shutter; or
2. By breaking in any other manner, being armed with a
dangerous weapon or being assisted or aided by one or
more confederates then actually present; or
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3. By unlocking an outer door by means of false keys or by
picking the lock thereof, or by lifting a latch or opening a
window, is guilty of burglary in the first degree.
Okla. Stat. tit. 21, § 1431.
Oklahoma’s first-degree burglary statute satisfies Taylor’s generic definition of
burglary: it prohibits the unlawful entry into a building with the intent to commit a crime.
It thus qualifies as a violent felony under § 924(e)(2)(B)(ii). Cf. United States v. Bennett,
108 F.3d 1315, 1317 (10th Cir. 1997) (recognizing that first-degree burglary in Oklahoma
would categorically be a crime of violence under the United States Sentencing Guidelines
because it requires “that the burglary be of a dwelling”); see also United States v. Maines,
920 F.3d 1525, 1529 (10th Cir. 1990) (holding that similar Texas burglary statute is
categorically a violent felony because it covers one “who with intent to commit a felony or
theft, by breaking enters a house in the daytime”). And because these two convictions for
first-degree burglary each qualify as violent felonies under the ACCA, they each justify
enhancing Mr. Brunken’s sentence under § 924(e)(1).
Further, there can be little question that Mr. Brunken’s guilty pleas to separate
counts of first-degree burglary constitute separate offenses under the ACCA. The ACCA
requires that each felony be “committed on occasions different from one another” for it to
constitute a separate offense. 18 U.S.C. § 924(e)(1). As the Presentence Investigation
Report shows, Brunken’s burglaries took place on November 13, 1993, and March 19,

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1994. [Doc. 23, ¶¶ 34, 35]. The offenses are thus separate, and each qualifies as an
enhancement-qualifying offense under the ACCA.2
This brings Mr. Brunken’s number of enhancement-qualifying offenses to three:
one for a serious drug offense (possession of marijuana with intent to distribute) and two
for a violent felony (two convictions for first-degree burglary). He argues, however, that
one of his convictions for first-degree burglary, along with his conviction for possession
of marijuana with the intent to distribute, together constitute only a single offense under §
924(e)(1) because it took place on the same day.
That misconstrues Tenth Circuit precedent. In adhering to § 924(e)(1)’s mandate
that each felony “be committed on occasions different from one another,” the Tenth Circuit
has noted that Congress “intended to reach multiple criminal episodes distinct in time.”
United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). That is why
“[c]riminal acts—even those that are similar and occur closely in time—may constitute
separate, predicate offenses when the defendant could have chosen to stop his illegal
conduct but continued nonetheless.” United States v. Cherry, 641 F. Appx. 829, 832 (10th
Cir.) (unpublished), cert. denied, 137 S. Ct. 89, 196 L. Ed. 2d 76 (2016). The law only asks
“whether a defendant could have ended his criminal spree but chose instead to continue.”
Id. at 833.

2
Examining the Presentence Investigation Report is proper when deciding whether two offenses are
separate for ACCA-enhancment purposes. See United States v. Delossantos, 680 F.3d 1217, 1219 n.1 (10th
Cir. 2012) (holding that the district court properly relied on the presentence investigation report to
determine whether defendant’s prior crimes were separate and distinct, in order to determine the number of
predicate offenses supporting sentence under the ACCA).

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True, Mr. Brunken committed both his crimes of possession of marijuana and his
first incident of first-degree burglary on November 13, 1993. Yet that does not mean, as he
contends, that the offenses occurred at the same time, in the same location, and involved
the same conduct. As the PSR makes clear, Mr. Brunken possessed marijuana with the
intent to distribute it at a time separate from when he committed the burglary. [Doc. 22, ¶
34].3 The underlying intent to commit a felony—as required by burglary—was not to
distribute marijuana. Instead, Mr. Brunken burglarized a home with the intent to commit
assault. [Id.] His possession of a controlled dangerous substance with intent to distribute
and his burglary with intent to commit assault were thus “criminal episodes distinct in
time.” Delossantos, 680 F.3d at 1219. Mr. Brunken might have possessed marijuana with
the intent to distribute and later burglarized a home. Or, vice versa, he could have
burglarized a home and later possessed marijuana with the intent to distribute it. Either
way, the ACCA views these as separate offenses because Mr. Brunken “could have ended
his criminal spree but chose instead to continue.” Cherry, 641 F. Appx. at 833.

3
  “[O]n or about November 13, 1993, the crime of Possession of a Controlled Dangerous

Substance with Intent to Distribute was feloniously committed in Oklahoma County, Oklahoma,
by the defendant who willfully [sic] and knowingly had within his possession a quantity of
marijuana classified as a controlled dangerous substance in Schedule I of the Controlled
Dangerous Substance Act of this state, with the intent to distribute it . . . [O]n the same date, the
crime of Burglary in the First Degree was committed in Oklahoma County, Oklahoma, by the
defendant and [co-defendant] who acting jointly, willfully [sic], and knowingly entered 5945
NW 60th, a dwelling house . . . by entering through the front door . . . with the intent to commit
assault.” Doc. 23, ¶ 34.

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Mr. Brunken thus still “has three previous convictions . . . for a violent felony or a
serious drug offense . . . committed on occasions different from one another.” § 924(e)(1).
His sentence is thus unaffected by Johnson and his petition for habeas relief is DENIED.
Further, the Court denies Mr. Brunken a Certificate of Appealability (COA) under
Rule 11(a) of the Rules Governing Section 2255 Cases in the United States District Courts.
Given (1) that convictions for first-degree burglary in Oklahoma qualify as violent felonies
and (2) precedent outlining what constitutes a separate offense for ACCA-enhancement
purposes, the Court denies Mr. Brunken’s petition on the merits. When a habeas petition is
denied on the merits, Petitioner is entitled to a COA only if he demonstrates “that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029 (2003).
Because Mr. Brunken has not made this showing, he is not entitled to a COA. He may seek
a certificate from the court of appeals under Federal Rule of Appellate Procedure 22 if he
wishes to appeal the Court’s ruling on his motion.
In conclusion, Mr. Brunken’s motion under 28 U.S.C. § 2255 is DENIED and
DISMISSED WITH PREJUDICE because it lacks merit.
IT IS SO ORDERED this 10th day of April 2017.

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