United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
a petition for a writ of habeas corpus under 28 U.S.C. §
2241. Todd Richard Chazen is challenging the sentence
enhancement he received under the Armed Career Criminal Act,
18 U.S.C. § 924(e), for having three or more convictions
“for a violent felony or a serious drug offense.”
Specifically, Chazen says he no longer has three convictions
that satisfy § 924(e) in light of United States v.
Mathis, 136 S.Ct. 2243 (2016), and Johnson v. United
States, 135 S.Ct. 2551 (2015). For the reasons explained
below, I will grant Chazen's petition and transfer the
case to the sentencing court for resentencing.
March 2011, a jury found Chazen guilty of being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1). At
the sentencing hearing on July 11, 2011, the court considered
whether Chazen qualified for an enhancement under §
924(e) in light of five previous convictions, all from
Minnesota state court: two convictions for second-degree
burglary, a conviction for second-degree assault, a
conviction for second-degree manufacture of a controlled
substance, and a conviction for escape from custody. In its
sentencing memorandum, the government stated that
Chazen's two burglary convictions should not be counted
separately and that the drug offense did not qualify as a
serious drug offense, but that the remaining three
convictions were predicate offenses under § 924(e).
sentencing court concluded that Chazen had “at least
four” past convictions that were either a violent
felony or serious drug offense, but did not specify what the
convictions were. United States v. Chazen, No.
10-cr-332 (D. Minn.), Dkt. 71, at 10-11. The court imposed a
252-month term of imprisonment. Id. at 80.
appeal, Chazen contended that his escape conviction was not a
predicate offense under § 924(e). In opposing
Chazen's appeal, the government withdrew its concessions
about the burglary offense and the drug offense. The Court of
Appeals for the Eighth Circuit rejected Chazens's
contention about the escape conviction and affirmed the
sentence. United States v. Chazen, 469 Fed.Appx.
508, 509 (8th Cir. 2012).
2013, Chazen filed a motion under 28 U.S.C. § 2255,
contending that his escape conviction did not qualify as a
predicate offense in light of Descamps v. United
States, 570 U.S. 254 (2013). He also said that the
government could not rely on the drug conviction and one of
the burglary convictions in light of its concession at
sentencing. The court denied the motion, rejecting
Chazen's argument under Descamps and concluding
that Chazen's other arguments were procedurally
defaulted. Chazen, No. 10-cr-332, Dkt. 89.
2016, Chazen sought authorization from the Court of Appeals
for the Eighth Circuit to file a second § 2255 motion.
Chazen v. United States, No. 16-2231, Dkt. 2 (8th
Cir. May 18, 2016). Before the court of appeals ruled on his
application, he also filed a second § 2255 motion with
the sentencing court. Chazen, No. 10-cr-332, Dkt.
92. He said that he was no longer an armed career criminal
under Johnson v. United States, 135 S.Ct. 2551
(2015). In response, the government agreed that Chazen's
conviction for escape did not qualify as a predicate offense
in light of Johnson, but maintained that Chazen
still qualified for a § 924(e) enhancement as a result
of the other convictions. The court of appeals denied
Chazen's application without explanation and the
sentencing court denied the § 2255 motion for lack of
jurisdiction. Chazen, No. 10-cr-332, Dkt. 93 and
parties agree that the validity of Chazen's sentence
enhancement under § 924(e) rests on his two burglary
convictions. This is because the parties agree that
Chazen's convictions for escape and manufacture of a
controlled substance no longer qualify as predicate offenses
under § 924(e) in light of intervening Supreme Court
precedent. And Chazen appears to concede that his assault
conviction is a violent felony under § 924(e). Because
three predicate offenses are required for an enhancement
under § 924(e), Chazen is entitled to resentencing if he
can prevail on his claim that his two burglary convictions do
not qualify as violent felonies in light of Mathis
924(e) defines “violent felony” as “any
crime punishable by imprisonment for a term exceeding one
• “has as an element the use, attempted use, or
threatened use of physical force against the person of
• “is burglary, arson, or extortion, [or] involves
the use of explosives”; or
• “otherwise involves conduct that presents a
serious potential risk of physical ...