United States District Court, W.D. Oklahoma
ORDER
DAVID
L. RUSSELL, UNITED STATES DISTRICT JUDGE
Before
the Court is Defendant-Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. [Doc.
323]. Finding that relief is appropriate, the Court GRANTS
the Motion.
I.
Background
In
October 2004, a grand jury sitting in the Western District of
Oklahoma returned a nine-count superseding indictment naming
Defendant-Petitioner Curtis Sumrall in six counts. [Doc. 93].
Mr. Sumrall eventually pled guilty to possessing a firearm as
a felon, in violation of 18 U.S.C. § 922(g). [Doc. 95].
Prior to his plea, the Government informed him that he was
eligible for enhancement under the Armed Career Criminal Act
(ACCA). [Doc. 16]. Under the ACCA, a person convicted of
possessing a firearm as a felon faces a minimum of fifteen
years' imprisonment if that person has three previous
convictions for “a serious drug offense” or a
“violent felony.” 18 U.S.C. § 924(e).
Without this sentence enhancement, a conviction for
possessing a firearm as a felon carries a maximum prison term
of ten years. § 924(a)(2). Finding that the Mr. Sumrall
did in fact qualify for the ACCA enhancement, the Court
sentenced Mr. Sumrall to 188 months' imprisonment on
February 1, 2005. [Doc. 142]. But on appeal, and in light of
the Supreme Court's intervening decision in Shephard
v. United States, 544 U.S. 13 (2005), the Tenth Circuit
remanded the case to the district court to make adequate
findings to support an ACCA-enhancement. [Doc. 207].
Prior
to resentencing, the Government identified the three earlier
state-law convictions of Mr. Sumrall's that it believed
qualified him for sentence enhancement: (1) unlawful
possession of marijuana with intent to distribute,
[1] (2)
assault and battery with a dangerous weapon, [2] and (3) witness
intimidation.[3] [Doc. 210]. The Court agreed with the
Government that these convictions counted as ACCA-predicate
offenses and resentenced him to his original term of 188
months' imprisonment. [Docs. 213, 214]. On May 31, 2016,
Defendant moved to vacate his sentence under 28 U.S.C. §
2255 based on the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015). Mr. Sumrall and
the Government disagree on whether, after Johnson,
Mr. Sumrall still has three prior convictions for a serious
drug offense or a violent felony that qualify him for the
ACCA's 15-year-minimum prison term.
Because
Mr. Sumrall has the better argument, the Court finds that
relief is appropriate. The Court will grant relief and
resentence him accordingly.
II.
Standard of Review
“Under
§ 2255, federal courts have authority to vacate
sentences ‘imposed in violation of the Constitution or
laws of the United States, ' ‘in excess of the
maximum authorized by law, ' ‘that the [sentencing]
court was without jurisdiction to impose, ' ‘or ...
otherwise subject to collateral attack.'”
United States v. Blackwell, 127 F.3d 947, 953 (10th
Cir. 1997) (quoting 28 U.S.C. § 2255). To be sure, a
remedy under § 2255 “does not encompass all
claimed errors in conviction and sentencing.”
United States v. Addonizio, 442 U.S. 178, 184, 99
S.Ct. at 2240. Rather, “an error of law does not
provide a basis for collateral attack unless the claimed
error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” Id. at 185 (citing Hill v.
United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471
(1962)).
III.
Analysis
A.
Sentence Enhancement under the Armed Career Criminal
Act
“Absent
an enhancement under the ACCA, ‘the felon-in-possession
statute sets out a 10-year maximum penalty.'”
United States v. Titties, __ F.3d __, 2017 WL
1102867, at *3 (10th Cir. Mar. 24, 2017) (citing Mathis
v. United States, 136 S.Ct. 2243, 2248 (2016)); 18
U.S.C. § 924(a)(2). If a defendant, however, is
convicted of possessing a firearm as a felon under 18 U.S.C.
§ 922(g) and the defendant has three prior convictions
for a “violent felony” or a “serious drug
offense, ” then the ACCA prescribes a 15-year mandatory
minimum sentence. Id.; § 924(e)(1). Further
convictions by guilty plea-such as in Mr. Sumrall's
case-qualify as ACCA offenses. See Shephard, 544
U.S. at 19 (2005). To apply the ACCA enhancement, the
government must show that a past conviction qualifies as an
ACCA-predicate offense. See United States v.
Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012).
Congress,
however, did not leave the question of whether a prior
conviction qualifies as a “violent felony” or a
“serious drug offense” to guesswork. Rather, the
ACCA defines both terms. A “serious drug offense,
” for example, includes state law crimes for attempting
to distribute controlled substances which carry maximum
prison terms of at least ten years. 18 U.S.C. §
923(e)(2)(A)(ii). Identifying a “violent felony,
” on the other hand, is admittedly more complicated.
Before Johnson, the ACCA defined the term as
“any crime punishable by imprisonment for a term
exceeding one year” that meets one of three
requirements: (1) “has as an element the use, attempted
use, or threatened use of physical force against the person
of another”-referred to as the elements
clause; (2) is “burglary, arson, or extortion, or
involves the use of explosives”-referred to as the
enumerated-offense clause; or (3) “otherwise
involves conduct that presents a serious potential risk of
physical injury to another”-referred to as the
residual clause. § 924(e)(2)(B)(i), (ii).
Johnson affected the validity of only this last
clause, with the Supreme Court deeming it unconstitutionally
vague since it “both denie[d] fair notice to defendants
and invite[d] arbitrary enforcement by judges.” 135
S.Ct. at 2557. Now, in the wake of Johnson, a prior
conviction qualifies as a violent felony under the ACCA only
if it falls within the enumerated-felony clause or the
elements clause.
Now
that the residual clause may no longer serve as a basis for
an ACCA-predicate offense, Mr. Sumrall's requested relief
hinges on whether he has his three prior convictions that
qualify under the ACCA's definition of serious drug
offense or its two remaining valid definitions of violent
felony. Two of his prior convictions are undoubtedly
ACCA-predicate offenses. First, his conviction for possession
of marijuana with intent to distribute under Okla. tit. 63,
§ 2-401(B)(2) qualifies as serious drug offense because
it involves the intent to distribute a controlled substance
and authorizes a term of imprisonment of life. Second, his
conviction for assault and battery with a dangerous weapon
qualifies because the Tenth Circuit has said as much. See
United States v. Mitchell, 843 F.3d 1215, 1224-25 (10th
Cir. 2016) (holding that conviction for assault and battery
with a dangerous weapon categorically qualified as a crime of
violence under the elements clause of the United States
Sentencing Guidelines).[4]
Mr.
Sumrall thus has at least two ACCA-predicate offenses. The
issue is whether his conviction for witness intimidation
qualifies as a third. It certainly is not a serious drug
offense. And it clearly does not qualify as a violent felony
under the enumerated-offense clause because it is not
“burglary, arson, or extortion, [and does not]
involve[] the use of explosives.” 18 U.S.C. §
924(e)(2)(B)(ii). Yet it still may fall within the elements
clause if it “has as an element the use, attempted use,
or threatened use of physical force against the person of
another.” § 924(e)(2)(B)(i). Without one of these
elements, though, his conviction does not qualify as a
violent felony, meaning he lacks the three prior convictions
required for sentence enhancement under the ACCA. If that is
the case, then his 188-month sentence far exceeds that
imposed for non-ACCA offenses.
B.
The Categorical and Modified-Categorical Approaches
Pursuant
to the Supreme Court's decision in Taylor v. United
States, 495 U.S. 575, 110 S.Ct. 2143 (1990), courts use
an elements-based approach in deciding whether a conviction
qualifies as an ACCA-predicate offense. Most of the time,
this task calls for the “formal categorical approach,
” which looks to the elements of the statutes of
conviction “and not to the particular facts underlying
those convictions.” Id. at 600. Consequently,
“[a] prior conviction is an ACCA predicate only if the
elements of the prior crime necessarily satisfy the ACCA
definition.” United States v. Tittles, __ F.3d
__, 2017 WL 1102867, at *5 (10th Cir. Mar. 24, 2017);
also see Descamps v. United States, 133 S.Ct. 2276,
2281 (2013) (“Congress meant ACCA to function as an
on-off switch, directing that a prior crime would qualify as
a predicate offense in all cases or in none.”).
“[I]f
the statute sweeps more broadly” than the ACCA
definition-that is, if some conduct would justify the
state-law conviction but would not satisfy the ACCA
definition-then any “conviction under that law cannot
count as an ACCA predicate.” Id. at 2283. In
other words, it does not matter if the facts underlying a
defendant's earlier conviction reveal that the
defendant's conduct was actually violent; if the statute
contemplates criminalizing conduct that would not meet the
ACCA's definition of violent felony, then that conviction
cannot support the ACCA-sentence ...