Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Brunken

United States District Court, W.D. Oklahoma

April 10, 2017




         Before the Court is Defendant's Motion under 28 U.S.C. § 2255 to correct his sentence. [ECF 16-107, Doc. 1]. The Government has responded. [Doc. 34].[1] Defendant replied. [Doc. 40]. The Government then filed a surreply [Doc. 45], to which Defendant filed a supplemental response. [Doc. 48].

         For the following reasons, the Court DENIES Defendant's Motion.


         On September 20, 2011, a grand jury sitting in the Western District of Oklahoma indicted Defendant Tracy Brunken for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). 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 serious drug offenses or violent felonies under the Armed Career Criminal Act (ACCA). 18 U.S.C. §§ 922(g), 924(e)(1). Mr. Brunken pled guilty to being a felon in possession of a firearm [Doc. 15], and because he had three prior convictions for a serious drug offense or a violent felony under the ACCA, the Court sentenced him to 200 months' imprisonment, followed by five years of supervised release. [Doc. 26].

         Mr. Brunken argues that in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2016), he no longer has three prior enhancement-qualifying convictions (serious drug offenses or violent felonies) under 18 U.S.C. § 924(e)(1) of the ACCA. If that is the case, his current sentence exceeds the 10-year statutory maximum for non-ACCA offenses and thus violates due process. 18 U.S.C. § 924(a)(2).

         Before Johnson, the ACCA defined the term “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that met 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 the residual 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. The Supreme Court would later make Johnson retroactive to cases on collateral review such as Mr. Brunken's. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         So as it stands today, § 924(e)(1) still calls for an enhanced sentence if a person who violates § 922(g)-possessing a firearm as a felon-has three or more earlier convictions for a serious drug offense or a violent felony. The statutory hiccup after Johnson is merely that a defendant's conviction qualifies as a violent felony only if it falls under the elements clause or the enumerated-offense clause. Mr. Brunken's requested relief thus depends on whether, in light of Johnson, he still has three prior convictions that qualify as a serious drug offense or a violent felony. If he does, then he is not entitled to relief. If he does not, then relief habeas relief must follow.

         The Court need not rehash Mr. Brunken's extensive criminal history to conclude that he is not entitled to relief under 28 U.S.C. § 2255: Mr. Brunken has one prior conviction for a serious drug offense and two prior convictions for a violent felony.

         First, Mr. Brunken's conviction for a serious drug offense. The ACCA includes in its definition of “serious drug offense” a state-law conviction “involving . . . possessing with intent to . . . distribute, a controlled dangerous substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Mr. Brunken pled guilty on April 10, 1995, to possession of a controlled dangerous substance (marijuana) with intent to distribute, in violation of Okla. Stat. tit. 63, § 2-401(B)(2). [Doc. 23, ¶ 34]. This conviction qualifies as a serious drug offense under the ACCA because, one, it involved the intent to distribute marijuana, a Schedule I substance under 21 U.S.C. §§ 802(7), 812(c)(1), and, two, it carries a possible punishment of life. See United States v. McMahon, 91 F.3d 1394, 1398 (10th Cir. 1996) (upholding district court's finding that defendant's former conviction for possession of marijuana with intent to distribute qualified as an ACCA predicate offense).

         Mr. Brunken's other two ACCA-enhancement-qualifying offenses consist of convictions for first-degree burglary. On April 10, 1995, Mr. Brunken pled guilty to two incidents of first-degree burglary: one that he committed on November 13, 1993 [PSR, Doc. 22, ¶ 34, CF-1993-7023], and another that occurred March 19, 1994 [PSR, Doc. 22, ¶ 35, CF-1994-2161]. Under Supreme Court precedent, these convictions for first-degree burglary in Oklahoma qualify as violent felonies for purposes of the ACCA. The Supreme Court has created a generic definition of burglary to use in determining whether a state-law conviction for burglary qualifies as an enhancement-qualifying offense under the enumerated-offense clause of the ACCA. See Taylor v. United States, 495 U.S. 575 (1990). In order to qualify, the state-law definition of burglary must meet Taylor's generic definition of burglary: an “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599. Oklahoma's first-degree burglary statute mirrors this generic definition of burglary:

Every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:
1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such door, or the fastening of such window or shutter; or
2. By breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.