United States v. Sumrall

          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 ...