Titley v. United States of America

Filing 2

ORDER Denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by John Ervin Titley. Signed by Honorable Timothy D. DeGiusti on 3/2/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN ERVIN TITLEY,
Defendant.

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Case No. CR-13-82-D

ORDER
Defendant, a federal prisoner proceeding pro se, brings this motion to
vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. No.
51]. Relying on the Supreme Court’s recent decision in Johnson v. United States,
___ U.S. ____, 135 S.Ct. 2551, 2563 (2015), Defendant contends his prior
conviction for first degree robbery does not qualify as a predicate conviction under
the Armed Career Criminal Act (“ACCA” or “the Act”), and thus, he should be
resentenced without the armed career criminal enhancement. For the reasons stated
below, the Court finds Defendant’s motion should be denied.
BACKGROUND
Defendant was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). According to the Presentence Investigation
Report (“PSIR”) [Doc. No. 26], Defendant was eligible for sentencing under §
924(e)(1) of the ACCA, which authorizes an enhanced penalty for a person who

violates § 922(g) and has three previous convictions for crimes that meet the
definition of a “violent felony” or “serious drug offense” that were committed on
different occasions. See PSIR, ¶ 28.1 Defendant’s three prior convictions were (1)
a 1987 conviction for first degree robbery in Missouri, (2) a 1992 conviction for
possession of marijuana with intent to distribute in Arkansas, and (3) a 1997
conviction for unlawful possession of marijuana with intent to distribute in Garvin
County, Oklahoma. Id. ¶¶ 33-35.
Defendant objected, arguing that his marijuana convictions did not constitute
“serious drug offenses” under federal law or that of several states, and thus the
term violated his rights to equal protection [Doc. No. 30]. The Court overruled
Defendant’s objections, and, applying the ACCA enhancement, sentenced him to a
term of 180 months’ imprisonment followed by three years of supervised release
[Doc. No. 34]. Defendant’s conviction was affirmed by the Tenth Circuit Court of

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The ACCA defines violent felony as “any crime punishable by imprisonment for
a term exceeding one year” that meets one of three requirements: (1) “has as an
element the use, attempted use, or threatened use of physical force against the
person of another” (the “elements clause”); (2) is burglary, arson, or extortion, or
involves use of explosives” (the “enumerated offense clause”); or (3) “otherwise
involves conduct that presents a serious potential risk of physical injury to another”
(the “residual clause”). See 18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme
Court declared the residual clause unconstitutionally vague. In Welch v. United
States, __ U.S. __, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016), the Court held
Johnson announced a substantive rule that has retroactive effect in cases on
collateral review.
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Appeals, United States v. Titley, 770 F.3d 1357 (10th Cir. 2014), and the Supreme
Court denied certiorari [Doc. No. 50].2
Defendant’s present § 2255 motion contends that, pursuant to Johnson, his
prior conviction for first degree robbery does not qualify as a predicate conviction
under the Act, thereby necessitating resentencing without the enhancement. In
response, the United States contends Defendant’s motion should be denied because
his robbery conviction qualifies as a predicate offense under the “elements clause”
of the ACCA, and thus, any invalidation of the Act’s residual clause has no bearing
on his enhancement.
DISCUSSION
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 violent felonies or serious drug offenses under the ACCA. See
18 U.S.C. §§ 922(g), 924(e)(1); Johnson v. United States, 559 U.S. 133, 136
(2010). Defendant contends his Missouri robbery conviction was not a “violent
felony” as defined by the ACCA because it involved “the snatching of a wallet.”
See Mot. at ¶ 12. The Court disagrees.
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Defendant previously agreed that his conviction for armed robbery in Missouri
qualified as a violent felony under the ACCA. See Titley, 770 F.3d at 1358.
However, this concession does not affect his current motion since, as previously
stated, Johnson announced a new substantive rule that has retroactive effect in
cases on collateral review. Welch, 136 S.Ct. at 1268.
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Despite its clear repudiation of the residual clause, the Johnson Court
specifically noted its holding did “not call into question application of the Act to
the four enumerated offenses, or the remainder of the Act’s definition of a violent
felony.” Johnson, 135 S.Ct. at 2563. Defendant’s Missouri conviction for first
degree robbery counts as a violent felony under the ACCA’s elements clause. At
the time of his robbery conviction, Missouri’s first degree robbery statute
provided:
1.

A person commits the crime of robbery in the first degree when
he forcibly steals property and in the course thereof he, or
another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous
instrument against any person; or
(4) Displays or threatens the use of what appears to be a
deadly weapon or dangerous instrument.

See Mo. Rev. Stat. § 569.020 (emphasis added); State v. Steward, 734 S.W. 2d
821, 822 n. 3 (Mo. 1987). To this end, the Tenth Circuit has previously held that a
Missouri conviction for first degree robbery is a violent felony under the ACCA’s
elements clause. See United States v. Sprous, 389 F. App’x 826, 828 (10th Cir.
2010) (unpublished) (“A crime is a violent felony if it is punishable by
imprisonment for more than a year and has as an element the use, attempted use, or
threatened use of physical force against the person of another. ... There is no
question that Missouri second-degree assault and first-degree robbery are violent
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felonies.”) (emphasis added; citations and internal quotations omitted).
Defendant’s 1987 conviction for first degree robbery in Missouri has, as an
element, “the use, attempted use, or threatened use of physical force against the
person of another” and thus supports his armed career criminal classification and
ACCA sentence enhancement.
CONCLUSION
Because Defendant’s prior robbery conviction qualifies under the elements
clause without regard to the ACCA’s residual clause, Defendant has not shown his
sentence falls within the scope of the substantive ruling in Johnson or that he will
benefit from Johnson. Accordingly, his Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence [Doc. No. 51] is DENIED as set forth herein.
IT IS SO ORDERED this 2nd day of March, 2017.

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