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United States v. Alexander

United States District Court, N.D. Oklahoma

September 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHESTER ALEXANDER, JR., Defendant.

          OPINION AND ORDER

          CLAIRE V. LAGAN UNITED STATKS DISTRICT JUDGE.

         Now before the Court is defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. # 49). On May 2, 2016, defendant filed his motion raising a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), and he argues that he is no longer eligible for sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA).

         I.

         On April 9, 2008, a grand jury returned an indictment charging defendant with possession of a firearm after former felony conviction (count one) and possession of a firearm by a user of a controlled substance (count two). Dkt. # 12. The indictment cited 18 U.S.C. § 924(a)(2), under which the maximum sentence defendant faced would have been 10 years imprisonment. Defendant was preparing to exercise his right to a jury trial, but approximately one week before trial defendant filed a motion to suppress (Dkt. # 21) challenging the admissibility of a confession. A suppression hearing was held one day before the trial was scheduled to begin, and the Court denied defendant's motion to suppress the next day. Dkt. # 36. On June 18, 2008, defendant entered a plea of guilty to count one of the indictment with a plea agreement. When preparing for the change of plea hearing, the parties learned that defendant had additional felony convictions that changed his statutory sentencing range. Instead of a maximum sentence of 10 years, defendant was eligible for sentencing under the ACCA, and he was facing a statutory mandatory minimum sentence of 15 years and a maximum sentence of life imprisonment. The plea agreement contained a stipulation that, pursuant to Fed. R. Crim. P. 11(c)(1)(C), defendant would be sentenced to 15 years imprisonment. Dkt. # 40, at 2.

         A presentence investigation report (PSR) was prepared by the United States Probation Office. The PSR stated that defendant had a base offense level of 24 under United States Sentencing Guideline (USSG) § 2K2.1, because he had two or more prior felony convictions for crimes of violence. Defendant used the firearm in connection with an assault with a deadly weapon and he received a four level enhancement. Under USSG § 4B1.4, the probation office determined that defendant had five prior convictions that qualified as violent felonies under the ACCA:

• Robbery with Firearms, CRF-86-1224 (Tulsa County District Court)
• Armed Robbery, CF-1986-1224 (Tulsa County District Court)
• Robbery by Force, CF-2003-5378 (Tulsa county District Court)
• Larceny from a Person, CF-2005-3822 (Tulsa County District Court)
• Assault and Battery, CF-2005-3822 (Tulsa County District Court)

         In addition, defendant had prior felony convictions for second degree burglary, larceny from a person, and aggravated assault and battery. Defendant had 14 criminal history points, resulting in a criminal history category VI. On October 3, 2008, the Court entered a judgment and commitment sentencing defendant to 15 years imprisonment. Dkt. # 45.

         On May 2, 2016, defendant filed a pro se § 2255 motion seeking relief under the Supreme Court's decision in Johnson. In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson is retroactively applicable to cases on collateral review. Johnson was decided by the Supreme Court on June 26, 2015, and a motion seeking relief under Johnson would be timely if it were filed no later than June 27, 2016.[1] See Dodd v. United States, 545 U.S. 353 (2005) (one year statute of limitation under § 2255 (f)(3) runs from the date that the Supreme Court initially recognized a new constitutional right, rather than the date the new right was made retroactive to cases on collateral review). Defendant's § 2255 motion is timely and the Court ordered plaintiff to respond to the motion. Plaintiff filed a response (Dkt. # 53) to defendant's § 2255 motion. The Federal Public Defender for the Northern District of Oklahoma filed a motion seeking to be appointed as counsel for defendant, and counsel requested leave to file a supplemental brief. Dkt. # 55. Defendant has filed a supplemental brief (Dkt # 58) with the assistance of counsel, and plaintiff has filed a response (Dkt. # 59) to defendant's supplemental brief.

         II.

         Defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and, under § 924(a)(2), the maximum punishment for this offense is 10 years imprisonment. However, if a defendant has three or more prior convictions that qualify as a violent felony or a serious drug offense, the defendant is subject to a statutory mandatory minimum sentence of 15 years and a possible maximum ...


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