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Leyva v. United States

United States District Court, E.D. Oklahoma

March 15, 2017

ROBERT GREGORY LEYVA, Petitioner/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Criminal No. CR-02-83-RAW

          ORDER

          Ronald A. White United States District Judge

         This matter comes before the court on the government's Motion to Reconsider Order and Alter or Amend Judgment, pursuant to Fed.R.Civ.P. 59(e). The government contends the order and resulting judgment entered on January 20, 2017 (Dkt. #s 10 and 11, respectively) were based on an error of law regarding Defendant's Oklahoma First Degree Manslaughter conviction and whether that conviction constitutes a “crime of violence under U.S.S.G. § 4B1.2(a)(1). Petitioner has not filed any response to said motion.

         In its earlier opinion, this court found that Oklahoma's manslaughter statute was not a “crime of violence” as defined by U.S.S.G. § 4B1.2(a)(1) because “there are ways to kill someone that would not necessarily involve physical force such as placing poison in a person's drink or food.” Dkt. # 10, at p. 6. The government urges this court to reconsider in light of United States v. Castleman, 134 U.S. 1405 (2014) and United States v. Bouziden, 2017 W.L. 149988 (W.D.OK. Jan 13, 2017).

         After reviewing these cases, this court reconsiders its earlier order (Dkt. # 10) and withdraws the same. Additionally, the court withdraws the judgment (Dkt. # 11) entered herein on January 20, 2017. This order shall be substituted in place of the earlier order and the Judgment and Commitment entered in Case No. 02-CR-83-RAW on March 7, 2003 shall be reinstated. The original Presentence Report completed on January 30, 2003 was and is the basis for this court's judgment herein.

         This is a proceeding initiated by the above-named petitioner who is an inmate at the Federal Correctional Institute in El Reno, Oklahoma. This action was initiated pursuant to the provisions of 28 U.S.C. § 2255. Petitioner seeks relief under § 2255(a) claiming his custodial sentence was enhanced through the residual clause in the career offender sentencing guideline, in violation of the constitution of the United States as pronounced in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and made retroactive by Welch v. United States, 136 S.Ct. 1257 (2016). See, Dkt. # 1.

         The court has reviewed the relevant trial court records associated with Criminal Case No. CR-02-83-RAW. The records reflect that, on November 13, 2002, Petitioner was indicted in a two-count indictment charging him with Count I, Felon in Possession of Firearms, in violation of 18 U.S.C. § 922(g)(1) and 924(e); and Count II, Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(e). On December 23, 2002, Petitioner entered a plea of guilty to Count One of the indictment.

         Thereafter, the United States Probation Office prepared a Presentence Report (“PSR”), calculating the Defendant's advisory sentencing range under the 2002 guidelines with a Total Offense Level of 25. See, PSR at ¶s 13 and 22. Defendant was sentenced to 200 months, on March 5, 2003, as an Armed Career Criminal based on three prior convictions for violent felonies, to-wit: Aggravated Robbery, Felony First Degree out of Dallas County District Court, Dallas, Texas, Docket Number C74-848-J; Injury of a Minor Child out of McCurtain County, Oklahoma District Court, Case Number CRF-98-176; and Manslaughter, First Degree out of McCurtain County, Oklahoma District Court, Case Number CRF-98-176. Id., at ¶s 23, 28, 34, 35 and 60. Application of the Armed Career Criminal Act enhancement, 18 U.S.C. § 924(e), resulted in a total offense level of 31, and a guideline imprisonment range of 188 to 235 months.. Id., at ¶ 62. Defendant did not perfect an appeal.

         On May 11, 2016, Petitioner, appearing pro se, filed the instant motion to vacate seeking sentencing relief pursuant to Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). See, Dkt. # 1. Petitioner does not identify how Johnson affects his sentence. Rather, his motion simply states he is seeking relief “in whole or part based on Johnson v. U.S.A. 135 S.Ct. 2551 (2015).” Id., at p. 4.

         Under the Armed Career Criminal Act of 1984, more severe punishment, i.e. a mandatory minimum sentence of 15 years of imprisonment and a maximum sentence of life, is imposed upon a defendant convicted of being a felon in possession of a firearm if he has three previous convictions by any court for a “violent felony.” 18 U.S.C. § 924(e)(2)(B).

         The Act defines “violent felony” as follows:

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). Section (i) is generally referred to as the “force”[1] prong or “elements clause”[2] of the statute. The first part of section (ii) which lists four specific offenses is usually referred to as the “enumerated felonies” prong. United States v. Elliott, 757 F.3d 492, 494 (6th Cir. 2014). The second part of section (ii) referring to conduct which “otherwise involves conduct that presents a serious potential risk of physical injury to another” is known as the “residual clause.” Id.

         In Johnson, the Supreme Court held that imposing an increased sentence under the ACCA's residual clause, i.e., the offense “involves conduct that presents a serious potential risk of physical injury to another” violates the Due Process clause because the residual clause is impermissibly vague on its face. In holding the residual clause unconstitutional, the Court explicitly held that the decision in Johnson “does 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.” Id., 135 S.Ct., at 2563. See e.g., In re Robinson, 822 F.3d 1196 (11th Cir. 2016) (“Even if the armed robbery offense doesn't count under the residual clause because of Johnson, it appears to contain “as an element the use, attempted use, or threatened use of physical force against the person of another. Neither Johnson nor any other case suggests [the defendant's] armed robbery and aggravated battery offenses don't count as ACCA predicates under the “elements clause.”); United States v. Priddy, 808 F.3d 676 (6th Cir. ...


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