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United States v. Titley

United States District Court, W.D. Oklahoma

March 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN ERVIN TITLEY, Defendant.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE

         Defendant, a federal prisoner proceeding pro se, brings this motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 51]. Relying on the Supreme Court's recent decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 2563 (2015), Defendant contends his prior conviction for first degree robbery does not qualify as a predicate conviction under the Armed Career Criminal Act (“ACCA” or “the Act”), and thus, he should be resentenced without the armed career criminal enhancement. For the reasons stated below, the Court finds Defendant's motion should be denied.

         BACKGROUND

         Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). According to the Presentence Investigation Report (“PSIR”) [Doc. No. 26], Defendant was eligible for sentencing under § 924(e)(1) of the ACCA, which authorizes an enhanced penalty for a person who violates § 922(g) and has three previous convictions for crimes that meet the definition of a “violent felony” or “serious drug offense” that were committed on different occasions. See PSIR, ¶ 28.[1] Defendant's three prior convictions were (1) a 1987 conviction for first degree robbery in Missouri, (2) a 1992 conviction for possession of marijuana with intent to distribute in Arkansas, and (3) a 1997 conviction for unlawful possession of marijuana with intent to distribute in Garvin County, Oklahoma. Id. ¶¶ 33-35.

         Defendant objected, arguing that his marijuana convictions did not constitute “serious drug offenses” under federal law or that of several states, and thus the term violated his rights to equal protection [Doc. No. 30]. The Court overruled Defendant's objections, and, applying the ACCA enhancement, sentenced him to a term of 180 months' imprisonment followed by three years of supervised release [Doc. No. 34]. Defendant's conviction was affirmed by the Tenth Circuit Court of Appeals, United States v. Titley, 770 F.3d 1357 (10th Cir. 2014), and the Supreme Court denied certiorari [Doc. No. 50].[2]

         Defendant's present § 2255 motion contends that, pursuant to Johnson, his prior conviction for first degree robbery does not qualify as a predicate conviction under the Act, thereby necessitating resentencing without the enhancement. In response, the United States contends Defendant's motion should be denied because his robbery conviction qualifies as a predicate offense under the “elements clause” of the ACCA, and thus, any invalidation of the Act's residual clause has no bearing on his enhancement.

         DISCUSSION

         Federal law prohibits convicted felons from possessing firearms, imposing a punishment of at least fifteen years' imprisonment for violators with three or more prior convictions for violent felonies or serious drug offenses under the ACCA. See 18 U.S.C. §§ 922(g), 924(e)(1); Johnson v. United States, 559 U.S. 133, 136 (2010). Defendant contends his Missouri robbery conviction was not a “violent felony” as defined by the ACCA because it involved “the snatching of a wallet.” See Mot. at ¶ 12. The Court disagrees.

         Despite its clear repudiation of the residual clause, the Johnson Court specifically noted its holding did “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, 135 S.Ct. at 2563. Defendant's Missouri conviction for first degree robbery counts as a violent felony under the ACCA's elements clause. At the time of his robbery conviction, Missouri's first degree robbery statute provided:

1. A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or ...

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