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United States v. Degeare

United States District Court, W.D. Oklahoma

March 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH R. DEGEARE, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBIN J. CAUTHRON United States District Judge.

         Defendant filed a pro se Motion seeking relief from a sentence pursuant to 28 U.S.C. § 2255 based on the Supreme Court's recent decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). The Court appointed counsel to assist Defendant; counsel filed a Supplement to Defendant's Motion as well as a Reply to Plaintiff's Response.

         On December 10, 2003, Defendant was indicted on a single count of felon in possession. Defendant pleaded guilty to the Indictment on January 16, 2014. In preparation for sentencing, the United States Probation Office prepared a Presentence Investigation Report. That report noted Mr. DeGeare qualified for an enhancement of his sentence pursuant to 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”). Defendant's underlying convictions were (1) forcible sodomy, Logan County Case No. CF-1990-06; (2) two counts of forcible sodomy and one count of lewd molestation of a minor, Oklahoma County Case No. CF-1993-7920; (3) unlawful possession of controlled drugs with intent to distribute, Cleveland County Case No. CF-2002-879. At sentencing, this Court determined that Defendant was subject to the ACCA and sentenced him to 180 months' imprisonment. Defendant now seeks relief from his sentence, arguing that based upon the Supreme Court's decision in Johnson, application of the ACCA to him is improper.

         Under the ACCA, a person who violates 18 U.S.C. § 922(g)(1) is subject to an enhanced sentence if he has three or more prior convictions for a “violent felony.” § 924(e)(1). A violent felony is defined as “any crime punishable by imprisonment for a term exceeding one year” that satisfies one of three clauses. The first is the elements clause: a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). Second is the enumerated offense clause: a crime which is a categorical match to the generic offenses of burglary, arson, or extortion. § 924(e)(2)(B)(iii). Third is the residual clause: a crime which involves conduct that presents a serious potential risk of physical injury to another. § 924(e)(2)(B)(ii). In Johnson, the Supreme Court struck the residual clause, finding it was unconstitutionally vague.

         Defendant does not challenge his prior conviction for possession of controlled drugs and Plaintiff concedes that neither Defendant's 1990 conviction nor the 1994 conviction for lewd molestation can be used as predicate felonies. Thus, the only prior crimes at issue are the 1994 forcible sodomy convictions.

         The Court's review in this matter is governed by the framework described by the Supreme Court in Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), and Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2283 (2013). The Court is not to consider the particular facts underlying the conviction, rather the focus is on the elements of the offense, those “things the prosecution must prove to sustain a conviction . . . [or] [a]t a trial . . . what the jury must find beyond a reasonable doubt to convict the defendant.” Mathis, 136 S.Ct. at 2248 (internal quotation marks and citation omitted). If the statutory offense encompasses conduct broader than the generic crime, or broader than the required violent force or physical force, “a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form.” Descamps, 133 S.Ct. at 2283.

         In certain circumstances, the Court may employ a modified categorical approach. This approach may be used only when the offense of conviction is “divisible, ” meaning it has multiple alternative versions of the crime. Descamps, 133 S.Ct. at 2283. If the modified categorical approach applies, it permits the Court to review “the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26 (2005). Notably, a statute is not divisible for purposes of applying the modified categorical approach if the statute lists alternative means of violating a single element, and one of those means would not qualify as an ACCA predicate. Mathis, 136 S.Ct. at 2254-55. This raises the issue of whether the enumerated alternatives are “means” or “elements.” Id. While the Supreme Court has never provided a bright line definition or rule regarding what is an “element” as opposed to “means, ” in Mathis the Supreme Court noted that making the determination will be “easy” when the state's highest criminal court has decided the issue; that is, has the state's highest criminal court determined what specific elements must be determined in order to find the defendant guilty of the statute.

         As relevant here, Defendant was convicted under 21 Okla. Stat. § 888. That statute states:

         § 888 Forcible Sodomy

A. Any person who forces another person to engage in the detestable and abominable crime against nature, pursuant to Section 886 of this title, upon conviction, is guilty of a felony punishable by imprisonment in the penitentiary for a period of not more than twenty (20) years. Any person convicted of a second violation of this section, where the victim of the second offense is a person under sixteen (16) years of age, shall not be eligible for probation, suspended or deferred sentence. Any person convicted of a third or subsequent violation of this section, where the victim of the third or subsequent offense is a person under sixteen (16) years of age, shall be punished by imprisonment in the State Penitentiary for a term of life or life without parole, in the discretion of the jury, or in case the jury fail or refuse to fix punishment then the same shall be pronounced by the court.

         B. The crime of forcible sodomy shall include:

1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or
2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or
3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the ...

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