Shane v. United States of America

Filing 2

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Honorable Robin J. Cauthron on 4/13/17. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff
vs.
STEVEN MICAH SHANE,
Defendant

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No. CR-13-61-C
CIV-16-690-C

MEMORANDUM OPINION AND ORDER
Defendant has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct a Sentence by a Person in Federal Custody. The Court appointed the Office of the
Federal Public Defender for the Western District of Oklahoma who filed a supplement to
Defendant’s pro se Motion. Plaintiff has responded and Defendant has replied.
Defendant seeks relief from his sentence based on the United States Supreme
Court’s decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). In
Johnson, the Supreme Court held the residual clause of the Armed Career Criminal Act
was void for vagueness. Defendant argues that the three predicate offenses required for
enhancement under 18 U.S.C. § 1924(e) (“ACCA”) are present only through application
of the now void residual clause.
Defendant pled guilty to a two-count superseding Indictment which charged him
with possession with intent to distribute methamphetamine and possession of a firearm
after conviction of a felony. The United States Probation Office prepared a Presentence
Investigation Report (“PSR”).

The PSR concluded that Defendant was subject to

enhancement under the ACCA on Count II and the Career Offender Guideline on Count I.
The predicate offenses identified by the PSR were (1) assault and battery with a dangerous
weapon in the District Court of Cleveland County, (2) assault and battery with a dangerous
weapon with intent to injure in the District Court of Cleveland County, and (3) assault and
battery with a dangerous weapon in the District Court of Lincoln County. Each prior
conviction was based on violation of 21 Okla. Stat. § 645. Defendant argues that any
conviction under that statute will not satisfy any of the element clauses of either the ACCA
or the Sentencing Guidelines § 4B1.1. Thus, he argues, he is entitled to resentencing.
Any argument Defendant raises pursuant to USSG § 4B1.1 is foreclosed by the
United States Supreme Court’s decision in Beckles v. United States, ___ U.S. ___, 137
S.Ct. 886 (2017).

Because the Guidelines were applied in an advisory fashion to

Defendant, he cannot raise a vagueness challenge to them now. Id. at 895.
Defendant’s argument that his prior convictions cannot serve as predicate offenses
under the ACCA is foreclosed by the Tenth Circuit’s decision in United States v. Mitchell,
653 F. App’x 639 (10th Cir. 2016). There, the Tenth Circuit decided that conviction of
§ 645 for assault with a dangerous weapon qualified as a violent felony. Id. at 643-44.
Defendant argues that Mitchell does not control because it failed to apply the proper
approach and it did not consider the Supreme Court’s guidance in Mathis*. However, the
Tenth Circuit has recently considered the effect of Mathis on Mitchell and determined that

*

See Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016).
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it did not affect the outcome. See United States v. Taylor, 843 F.3d 1215 (10th Cir. 2016).
There, the Tenth Circuit reaffirmed the following holding from Mitchell:
“The statute here criminalizes an intentional attempt or threat to commit
violence on another--that is, either an attempted-battery assault or an
apprehension-causing assault--with a weapon capable of causing great bodily
harm. In other words, a conviction under this portion of § 645 categorically
requires proof of the attempted use or threatened use of violent force.
Following our precedent, a conviction under these elements of § 645 ‘is
categorically a crime of violence under all circumstances.’ [United States
v. ]Madrid, 805 F.3d [1204] at 1207 [(10th Cir. 2015)].”
Taylor, 843 F.3d at 1224 (quoting Mitchell, 653 F. App’x at 645). In light of this clear
ruling, Defendant’s arguments to the contrary are unavailing and his Motion will be denied.
For the reasons set forth herein, Defendant’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. No. 45) is
DENIED. A separate Judgment will issue.
IT IS SO ORDERED this 13th day of April, 2017.

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