United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
a federal prisoner appearing pro se, brings this action under
28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence in light of the Supreme Court's decision in
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015) [Doc. No. 1]. The United States
has filed its response [Doc. No. 164] and the matter is now at
issue. Because Defendant is proceeding pro se, the Court
construes his filings liberally, but will not act as his
advocate in constructing his arguments and searching the
record. Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
was charged by Indictment with bank robbery, using a firearm
during a crime of violence, and being a felon in possession
of a firearm [Doc. No. 12]. On March 25, 2011, a jury found
Defendant guilty of all three counts. In the Presentence
Investigation Report (PSIR) prepared by the U.S. Probation
Office [Doc. No. 113], Defendant was classified as an
“armed career criminal” within the meaning of the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
and a “career offender” within the meaning of
Section 4B1.1 of the United States Sentencing Guidelines
(USSG or the “Guidelines”),  because he had
five (5) prior state convictions for armed robbery.
See PSIR, ¶¶ 43, 88-89. Defendant was
sentenced to a term of 288 months' imprisonment and three
years of supervised release. The Tenth Circuit Court of
Appeals affirmed his conviction. See United States v.
Motsenbocker, 528 F. App'x 832 (10th Cir. 2013)
Court construes Defendant's motion,  he contends that
following Johnson, his prior convictions can no
longer constitutionally constitute predicate convictions
under the ACCA and the Guidelines, and he should be
resentenced without the enhancement. As stated more fully
below, the Court finds Defendant's motion should be
examined the provisions of the Armed Career Criminal Act
(“ACCA”) that mandate a 15-year minimum sentence
for anyone convicted of being a felon in possession of a
firearm who “has three previous convictions ... for a
violent felony.” 18 U.S.C. § 924(e)(1).
Specifically at issue in Johnson was the ACCA's
definition of “violent felony” as:
any crime punishable by imprisonment for a term exceeding one
year ... if committed by an adult, that -
(i) has as 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 [.]
Id. § 924(e)(2)(B) (emphasis added). The
italicized phrase in clause (ii) is commonly known as the
“residual clause, ” while clause (i) is known as
the “elements clause” and the non-italicized
phrase in clause (ii) is known as the “enumerated
clause.” See United States v. Harris,
844 F.3d 1260, 1262 (10th Cir. 2017). Johnson held
that the residual clause was unconstitutionally vague.
Id. at 2557. On April 18, 2016, the Supreme Court
decided in Welch v. United States, ___ U.S. ___, 136
S.Ct. 1257, 194 L.Ed.2d 387 (2016) that Johnson had
announced a substantive change in the criminal law and,
therefore, applied retroactively. Thus, pursuant to 28 U.S.C.
§ 2255, prisoners sentenced under the residual clause of
the ACCA's “violent felony” definition can
collaterally challenge their sentences as unconstitutional.
more recently in Beckles v. United States, ___ U.S.
___, 137 S.Ct. 886, 2017 WL 855781 (U.S. Mar. 6, 2017), the
Supreme Court concluded that the U.S. Sentencing Guidelines
are not subject to a vagueness challenge under the Due
Process Clause. Id. at 894. Specifically, the Court
held that Johnson's vagueness holding did not
apply to the “career offender” provisions of the
U.S. Sentencing Guidelines.
its clear repudiation of the residual clause, the
Johnson Court specifically noted its holding did
“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.” Johnson, 135
S.Ct. at 2563. Defendant's Oklahoma convictions for armed
robbery count as violent felonies under the ACCA's
elements clause. At the time of his robbery convictions,
Oklahoma's armed robbery (robbery with a dangerous
weapon) statute provided:
Any person or persons who, with the use of any firearms or
any other dangerous weapons, whether the firearm is loaded or
not, or who uses a blank or imitation firearm capable of
raising in the mind of the one threatened with such device a
fear that it is a real firearm, attempts to rob or robs any
person or persons, or who robs or attempts to rob any place
of business, residence or banking institution or any other
place inhabited or attended by any person or persons at any
time, either day or night, shall be guilty of a felony and,
upon conviction therefor, shall suffer punishment by
imprisonment for life in the State Penitentiary, or for a
period of time of not less than five (5) years, at the
discretion of the court, or the jury trying the same.
21 Okla. Stat. § 801. The elements of robbery with a
dangerous weapon are: (1) the wrongful, (2) taking, (3)
and/or carrying away, (4) the personal property, (5) of
another, (6) from the person (or the immediate presence) of
another, (7) by force/fear, (8) through use of a dangerous
weapon. Primeaux v. State, 2004 OK CR 16, ¶ 67,
88 P.3d 893, 906. Defendant's armed robbery convictions
have, as an element, “the use, attempted use, or
threatened use of physical force against the person of
another” and ...