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Moore v. United States

United States District Court, E.D. Wisconsin

September 6, 2016

BYRON M. MOORE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. §2255 (DKT. NO. 1), GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT PAYING THE FILING FEE (DKT. NO. 4) AND DISMISSING PETITION

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         On August 30, 2016, the plaintiff filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, citing the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015) that the residual clause in the Armed Career Criminal Act is unconstitutionally vague. Dkt. No. 1. The court has reviewed his petition, and finds it without merit. The court will deny the petition, but will waive the $5.00 filing fee.

         Rule 4(b) of the Rules Governing Section 2254 Cases in the United States District Courts (which applies to §2255 petitions) says that a court must “promptly examine” a petition, and directs that “[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” This court has reviewed the petitioner's letter, and his case file. The court concludes that the defendant was convicted of a “crime of violence” as defined by 18 U.S.C. §924(c)(3)(A), and therefore that the petitioner is not entitled to relief in the district court. The court will dismiss his petition.

         The Johnson Decision

         The Armed Career Criminal Act, 18 U.S.C. §922(e)(1), is part of the federal statute that imposes penalties for gun offenses. That statute says that anyone who violates 18 U.S.C. §922(g) (which prohibits certain people, such as felons, fugitives, or illegal aliens, from possessing firearms), and who has three previous convictions for a “violent felony” or a “serious drug offense” or both, must be sentenced to a term of imprisonment of at least fifteen years. The statute defines a “violent felony” as either a felony that is a “burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” or a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. §924(e)(2)(B). That second clause of the first part of the definition-a felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another”-is called the “residual clause” of the Armed Career Offender Act.

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, because it didn't give a defendant convicted under §922(g) enough guidance or warning to figure out whether one of his three prior felony convictions “otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another, ” and thus whether he might be facing the mandatory minimum fifteen-year sentence. The result of the Supreme Court's decision, then, was that any defendant who was convicted of violating §922(g), and was sentenced under §924(e) as an armed career criminal based on one or more felonies that “otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another, ” could challenge his sentence under Johnson.

         The Similar Language in 18 U.S.C. §924(c)(3)(B) (The “Residual” Clause)

         The petitioner in this case wasn't sentenced under the Armed Career Criminal Act, so the reasoning in Johnson does not provide him with direct relief. While the petitioner's legal argument consists of only one paragraph, however, he implies that the court should compare the language of the ACCA's residual clause-the language the Supreme Court found unconstitutionally vague-with the language of the statutes under which his sentence was enhanced, 18 U.S.C. §§924(c)(1)(A) and 924(c)(3)(B), and find that it, too, is unconstitutionally vague.

         The record shows that the petitioner pled guilty to one count of armed bank robbery, 18 U.S.C. §§2113(a) and (d), and one count of using, carrying or brandishing a firearm in relation to a crime of violence (the bank robbery), in violation of 18 U.S.C. §924(c). United States v. Moore, Case No. 15-cr-60-pp, Dkt. Nos. 17, 18. Section 924(c)(1)(A) provides that a defendant convicted of using or carrying a firearm during and in relation to “any crime of violence or drug trafficking crime” is subject to a mandatory minimum sentence of five years-seven if the defendant brandished the firearm, and ten if the firearm was discharged. The defendant was subject to the seven-year mandatory minimum under the statute.

         Section 924(c)(3) defines “crime of violence” for the purpose of those sentence enhancements. It states:

For the purposes of this subsection the term “crime of violence” means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the court of committing the offense.

         It is the second definition-the one in 924(c)(3)(B)-that some defendants have argued suffers from the same constitutional ...


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