United States District Court, N.D. Oklahoma
OPINION AND ORDER
H PAYNE UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Edwin Duane Eastteams's
(“Petitioner”) motion to vacate, set aside, or
correct sentence by a person in federal custody brought
pursuant to 28 U.S.C. § 2255 (Doc. No. 53). Petitioner
seeks relief pursuant to the United States Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). Respondent the United States of
America (“Respondent”) opposes Petitioner's
motion (Doc. No. 56). For the reasons cited herein,
Petitioner's motion pursuant to § 2255 is DENIED.
2004, Petitioner pleaded guilty to possession of a firearm
and ammunition after a felony conviction, in violation of 18
U.S.C. §922(g)(1). (Doc. No. 26). In advance of
sentencing, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”) as to
Petitioner, in which it was recommended he be classified as
an Armed Career Criminal (“ACC”) under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”). (PSR ¶ 21). Petitioner's ACC
classification was based on his having committed the §
922(g)(1) offense after sustaining three prior convictions
for a violent felony or serious drug offense.
Petitioner's predicate ACC convictions are (1) Delivery
of Marijuana (Tulsa County Case No. CF-1988-1622), (2)
Unlawful Delivery of a Controlled Drug (Pittsburg County Case
No. F-89- 266), (3) Unlawful Delivery of a Controlled Drug
(Pittsburg County Case No. F-89-266), and (4) First-Degree
Burglary After Felony Conviction (Tulsa County case No.
CF-95-966). (PSR ¶¶ 21, 25-28). On December 6,
2004, Judge Cook sentenced Petitioner to 220 months of
imprisonment. (Doc. Nos. 24, 26). Petitioner appealed the
denial of his request for a third-level reduction for
acceptance of responsibility, but he did not appeal his ACC
designation. The Tenth Circuit Court of Appeals affirmed his
sentence. United States v. Eastteam, 426 F.3d 1301
(10th Cir. 2005), cert. denied, 126 S.Ct. 1442
pending § 2255 motion, Petitioner seeks to change his
ACC designation based on the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
defendant who violates 18 U.S.C. § 922(g) and qualifies
for the ACCA enhancement is subject to a mandatory minimum
sentence of fifteen years of imprisonment. 18 U.S.C. §
924(e)(1). The enhancement applies when the defendant has
three prior convictions by any court for a “violent
felony” or a “serious drug offense, ” or
both, “committed on occasions different from one
another.” Id. The statute provides three
clauses defining the types of crimes that qualify as a
(i) “has as an element the use, attempted use, or
threatened use of physical force against the person of
another” (the “elements clause”);
(ii) “is burglary, arson, or extortion, involves use of
explosives” (the “enumerated offenses
(iii) “otherwise involves conduct that presents a
serious potential risk of physical injury to another”
(the “residual clause”).
18 U.S.C. § 924(e)(2)(B)(i)-(ii). A “serious drug
offense” includes “an offense under State law,
involving manufacturing, distributing or possessing with
intent to manufacture or distribute, a controlled substance .
. . for which a maximum term of imprisonment of ten years or
more is prescribed by law.” § 924(e)(2)(A)(ii).
Johnson, the United States Supreme Court held the
enhanced sentence could not be imposed pursuant to the
ACCA's “residual clause, ” which defines a
violent felony to include an offense that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 135 S.Ct. at 2563. The
Supreme Court found this clause violated the Due Process
Clause of the Fifth Amendment to the United States
Constitution, because it was impermissibly vague on its face.
Id. at 2557. The Supreme Court has since clarified
that its decision under Johnson applies
retroactively to cases on collateral review. Welch v.
United States, 136 S.Ct. 1257 (2016).
despite Johnson's retroactivity, Petitioner is
not entitled to relief under Johnson because he has
three predicate offenses that do not fall into the residual
clause but rather qualify as “serious drug
offenses” under ACCA. Defendant was found to be an
Armed Career Criminal based in part on three prior Oklahoma
drug convictions: one Tulsa County conviction for Delivery of
Marijuana and two Pittsburg County convictions for Unlawful
Delivery of a Controlled Drug. All three of these convictions
involved distributing a controlled substance, and each
conviction carried a maximum term of imprisonment of twenty
years, which qualifies them as ACCA predicates. Okla. Stat.
tit. 63, § 2-401(B)(2) (1988).
argues his 1988 Tulsa County conviction for Delivery of
Marijuana does not qualify under the ACCA, because its
statutory maximum sentence would not be ten years or more.
(Doc. No. 53, at 2). However, Petitioner identifies no
grounds for this conclusion, and the Court can identify none.
The 1988 version of the relevant statute provides for a
maximum term of imprisonment of twenty years. Okla. Stat.
tit. 63, § 2-401(B)(2) (1988). Therefore,
Petitioner's three prior drug convictions all qualify as
“serious drug offenses” under the ACCA, which are
unaffected by Johnson's ...