Stout v. United States of America

Filing 5

ORDER granting 4 Motion to Stay. Signed by U.S. District Judge Charles B. Kornmann on 09/27/2016. (SAC)

FILED

UNITED STATES DISTRICT COURT

SEP 27 2016

DISTRICT OF SOUTH DAKOTA

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NORTHERN DIVISION

TIM STOUT,

1: 16-CV -01026-CBK
Petitioner,
ORDER

vs.
UNITED STATES OF AMERICA,
Respondent.

Petitioner pleaded guilty to conspiracy to distribute a controlled substance. He was
sentenced on September 17, 2012, to 151 months imprisonment.
Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. He contends that he is entitled to relief under Johnson v. United States,_ U.S._,
135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), wherein the United States Supreme Court struck down
as unconstitutionally vague the so-called residual clause of the Armed Career Criminal Act , 18
U.S.C. § 924(e)(2)(B)(ii). Johnson was made retroactive to cases on collateral review by the
Supreme Court in Welch v. United States,_ U.S._, 136 S.Ct. 1257, 194 L.Ed.2d 387
(2016).
I have conducted an initial consideration of the motion, as required by Rule 4 of the
Rules Governing Section 2255 Proceedings for the United States District Courts.
DECISION
I. The Residual Clause of the Armed Career Criminal Act.

Chapter 44 of Title 18 of the United States Code sets forth the laws as to the manufacture,
import, sale, and possession of firearms. Section 922(g) prohibits any person who has been
convicted of a felony, is a fugitive from justice, is an unlawful user of or addicted to any
controlled substance, has been adjudicated as having mental defects or has been committed to a
mental institution, is an illegal alien, has been dishonorably discharged from the armed forces,
has renounced United States citizenship, is subject to a restraining order, or has been convicted
of a crime of domestic violence from shipping, transporting, possessing, or receiving any firearm
or ammunition. 18 U.S.C. § 924(g)(l)-(9).

The maximum custodial penalty for a violation of§ 922(g) is ten years. 18 U.S.C.

§ 924( a)(2). An enhanced mandatory minimum penalty of 15 years custody applies if a
prohibited person "has three previous convictions by any court referred to in section 922(g)( 1) of
this title for a violent felony or a serious drug offense, or both, committed on occasions
different from one another." 18 U.S.C. § 924(e)(l) (emphasis supplied). That mandatory
minimum penalty was enacted as part of The Armed Career Criminal Act of 1984 ("ACCA"), as
amended.
The term "violent felony" is defined as
any crime punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying of a firearm,
knife, or destructive device that would be punishable by imprisonment for
such term if committed by an adult, that(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.
18 U .S.C.A. § 924( e)(2)(B) (emphasis supplied).
Section 924(e)(2)(B)(i) is known as the elements clause. Section 924(e)(2)(B)(ii) is
known as the enumerated offenses clause. The phrase "or otherwise involves conduct that
presents a serious potential risk of physical injury to another" is known as the residual clause.
Johnson v. United States,_ U.S. at_, 135 S.Ct. at 2556. The United States Supreme Court
held in Johnson that the residual clause of ACCA is unconstitutionally vague. Johnson v. United
States,_ U.S. at_, 135 S.Ct. at 2557-60. The Johnson "decision does 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 v. United States,_ U.S. at_. 135 S.Ct. at 2563. The Supreme
Court has held that Johnson is to be applied retroactively to cases under collateral review. Welch
v. United States,_ U.S._, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). However, only
defendants who were subject to ACCA's mandatory minimum sentence because at least one of
their prior convictions was for a violent felony as defined by the residual clause are entitled to
collateral relief.

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II. Petitioner's case.
Petitioner's crime of conviction was not for an 18 U.S.C. § 922(g) offense and he was not
subject to the mandatory minimum 15 year sentence provision of ACCA. The rule announced in
Johnson v. United States does not afford petitioner any relief.

II. Beckles v.United States.
Petitioner seeks a stay pending the United States Supreme Court's opinion in Beckles v.
United States, No. 15-8544. The United States Supreme Court has granted certiorari in Beckles
to consider whether the residual clause of the Career Offender guideline, § 4B1.1, is also
constitutionally infirm. Guideline § 4B 1.1, the Career Offender guideline, always increases a
defendant's criminal history to category VI and in some cases increases the offense level. The
guideline applies to a defendant who, inter alia, "has at least two prior felony convictions of
either a crime of violence or a controlled substance offense." U.S.S.G. § 4Bl.l(a). The
definition of the guideline term "crime of violence" is identical to the provisions of ACCA.
U.S.S.G. § 4Bl.2(a).
Pursuant to guidelines§ 4Bl.l(b)(3), petitioner's offense level was increased 8 levels.
The Career Offender guideline also increased petitioner's criminal history category from Level
III to level VI. Without the application of the Career Offender guideline, petitioner's guideline
sentencing range would have been 46 - 57 months. The Career Offender guideline increased his
range to 151 - 188 months and he was sentenced to the bottom of that range. It would appear
that the outcome of the United States Supreme Court's opinion in Beckles may affect the
advisory guideline range.

ORDER
Now, therefore,
IT IS ORDERED that the motion, Doc. 4, for stay is granted. This action is stayed
pending an opinion by the United States Supreme Court in Beckles v. United States, No. 158544.
DA TED this 27th day of September, 2016.
BY THE COURT:

~~-~-·CHARLES B. KORNMA
United States District Judge
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