United States District Court, N.D. Oklahoma
OPINION AND ORDER 
TERENCE KERN United States District Judge.
the Court is the United States' Motion to Reconsider
(Doc. 41). In the motion, the United States argues that
Defendant's motion is untimely because it is based solely
upon the Supreme Court's decision in Mathis,
which does not apply retroactively to cases on collateral
review. In response, Defendant argues (1) the motion must be
construed as a Federal Rule of Civil Procedure 60(b) motion
to alter or amend judgment, (2) such rule's requirements
are not met, and, alternatively, (3) Defendant's 28
U.S.C. § 2255 motion was timely.
Motion to Reconsider
United States responded to Defendant's § 2255 motion
in July of 2016. In August of 2016, the Court granted
Defendant's motion to supplement to include reliance upon
Mathis. Although the United States could have moved
to supplement or otherwise raise the
Mathis/timeliness argument, the Court did not
expressly permit or order the United States to respond to
Defendant's supplement. As this Court has noted,
Johnson and Mathis have created
considerable work for courts and parties litigating §
2255 motions. Further, the Court has not yet resentenced
Defendant or entered an Amended Judgment. Therefore, the
Court finds that the United States' failure to raise the
timeliness argument was based on excusable neglect and
construes the argument as timely raised. Preservation of this
issue for a possible appeal furthers the interest of justice
and consistency in treatment of similarly situated
defendants. Accordingly, the Court reaches the merits of the
United States' motion to reconsider.
Order dated January 27, 2017 (Doc. 35), the Court already
addressed the United States' timeliness argument by
express incorporation of United States v. Hamilton,
06-CR-188-TCK (Doc. 55). In Hamilton, the Court
reasoned that a § 2255 motion is based upon
Johnson (and therefore timely) where a sentencing
record is silent as to whether a court relied on the residual
clause or some other clause at the time of sentencing.
(See 06-CR-188-TCK, Doc. 55.) There is no difference
between Mr. Britto's silent sentencing record as to the
ACCA's application to his second degree burglary
conviction and Mr. Hamilton's silent sentencing record on
the same subject. The Court's reasoning applies equally
in both cases.
United States seems to draw a factual distinction between Mr.
Britto's motion and Mr. Hamilton's motion because Mr.
Hamilton had “multiple ACCA predicates, some of which
qualified as violent felonies only under the
ACCA's residual clause.” (Mot. to Reconsider n.1
& accompanying text (emphasis added).) In contrast, all
three of Mr. Britto's predicate convictions potentially
qualify for “violent felony” status under other
clauses, in addition to potentially qualifying under the
residual clause. The United States seems to urge that
Johnson can only open the courthouse doors, as this
Court phrased it, where a defendant had at least one ACCA
predicate to which the residual clause, and only the residual
Court rejects this argument and finds no meaningful
distinction between Mr. Britto and Mr. Hamilton for purposes
of analyzing the timeliness of their § 2255 motions.
Under the Court's reasoning in Hamilton,
Johnson “opened the door” for Mr.
Hamilton because the residual clause was most likely used to
qualify his second degree burglary convictions as violent
felonies, not because Johnson necessarily applied to
any other convictions. The elements clause analysis, which
turns on Mathis, then became necessary to determine
if the residual-clause error was harmless. This reasoning
extends equally to Mr. Britto. The Court finds that Mr.
Britto's second degree burglary conviction was most
likely classified as a violent felony based on a
Johnson error, thereby rendering his motion timely.
The Court rejects the notion that Mr. Britto's motion is
somehow “based solely on Mathis.”
Therefore, the United States' Motion to Reconsider (Doc.
41) is DENIED.
January 27, 2017, the Court granted Defendant's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence and ordered the United States Probation Office to
prepare a revised Presentence Investigation Report
(“PSR”) on an expedited basis. (See Doc.
35.) After reviewing the PSR, Defendant filed a Motion to
Expedite Sentencing, stating that he does not object to the
PSR's calculations and requesting expedited sentencing
because he has served in excess of the statutory maximum.
(See Doc. 38.) The United States filed an Amended
Notice stating its nonobjection to the PSR but raising the
objection briefed in its Motion to Reconsider, which is
discussed above. (See Doc. 40.)
initial matter, the Court finds no need to conduct a
sentencing hearing. The Court has reviewed and considered the
newly calculated sentencing guideline range, which is 110-120
months. The top end of the range reflects a statutory maximum
of 120 months. Defendant has served 133 months, which exceeds
the new statutory maximum. The Court finds that a sentence of
time served will serve as an adequate deterrent to this
Defendant as well as others, promote respect for the law,
provide just punishment for the offense, and provide
protection for the public.
it is the order and judgment of the Court that Defendant
Manuel Peter Britto is hereby sentenced to time served as to
Count One. Defendant is sentenced to a term of supervised
release of three years. All other aspects of Defendant's
sentence shall remain as set forth in the original Judgment.
United States' Motion to Reconsider (Doc. 41) is DENIED.
Defendant is resentenced in accordance with this Order, and
the Court will enter an Amended Judgment.