United States District Court, E.D. Oklahoma
A. White United States District Judge
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.
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).
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.
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.
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.
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
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.
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.
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” prong or
“elements clause” 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.”
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.