United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 2255, Defendant Antonio Djuan Thompson
moves to vacate his sentence under Johnson v. United
States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569
(2015), as made retroactive to cases on collateral review by
Welch v. United States, __ U.S. __, 136 S.Ct. 1257,
194 L.Ed.2d 387 (2016). The United States opposes the Motion.
For the reasons below, the Court finds Defendant's Motion
should be denied.
was charged with (1) being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. § 922(g)(1)
and (2) possession of marijuana, in violation of 21 U.S.C.
§ 844(a). A bench trial was held before this Court and
Defendant was convicted on both counts. Prior to the
conviction, the United States provided notice that it
intended to seek the imposition of the enhanced penalty
provisions of the Armed Career Criminal Act
(“ACCA”) based on Defendant's prior state
convictions for (1) assault with a dangerous weapon (Oklahoma
County Case No. CF-2003-3197); (2) possession of controlled
dangerous substance with intent to distribute (Oklahoma
County Case No. CF-2004-2511); and (3) possession of a
controlled dangerous substance with intent to distribute
(Oklahoma County Case No. CF-2005-1909). The presentence
investigation report (“PSR”) prepared by the
United States Probation Office (“USPO”)
identified the same three prior offenses in qualifying the
defendant for the ACCA enhancement. See PSR, ¶
29 [Doc. No. 102]. Based on a total offense level of 33 and a
criminal history category VI, the advisory guideline range
was 235 to 293 months' imprisonment for Count 1 and 12
months for Count 2. See id. ¶¶ 72-73.
Court overruled Defendant's objection to the ACCA
enhancement, adopted the PSR without change, and sentenced
him to 235 months' imprisonment on Count 1 and 12
months' imprisonment on Count 2, to be served
concurrently. Defendant appealed his conviction, which was
affirmed by the Tenth Circuit. United States v.
Thompson, 402 F. App'x 378 (10th Cir. 2010)
(unpublished). Since that time, Defendant has filed numerous
post-conviction motions, all of which have been denied or
dismissed by the Court [Doc. Nos. 71, 84, 95, 98]. After
receiving authorization from the Tenth Circuit to file a
successive § 2255 motion, Defendant filed the present
motion seeking to vacate his sentence based on the Supreme
Court's decision in Johnson.
examined the provisions of the 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). 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 the residual clause was
unconstitutionally vague. Id. at 2557. On April 18,
2016, the Supreme Court decided in Welch that
Johnson had announced a substantive change in the
criminal law and, therefore, applied retroactively. Thus,
pursuant to § 2255, prisoners sentenced under the
residual clause of the ACCA's “violent
felony” definition can collaterally challenge their
sentences as unconstitutional. Despite 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.
in Beckles v. United States, __ U.S. __, 137 S.Ct.
886, 197 L.Ed.2d 145 (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.
alleges his conviction for assault with a dangerous weapon
does not constitute a “violent
felony.” This argument, in essence, depends on a
determination that the only way his prior assault conviction
qualified as a violent felony was because it fell within
ACCA's residual clause and did not qualify under the
“elements clause.” In response, the government
argues that Defendant's prior conviction indeed qualifies
as a violent felony under the ACCA's elements clause.
time of Defendant's conviction, Oklahoma's assault
with a dangerous weapon statute provided that such crime
occurred where a person “with intent to do bodily harm
and without justifiable or excusable cause, commits any
assault, battery, or assault and battery upon the person of
another with any sharp or dangerous weapon, or who, without
cause, shoots at another, with any kind of firearm or air gun
or other means whatever, with intent to injure any person,
although without the intent to kill such person or to commit
any felony[.]” See 21 Okla. Stat. § 645.
Several years prior to Johnson, the Tenth Circuit
held assault with a dangerous weapon was a “crime of
violence”-and thus constituted an aggravated felony-
because it has as an element the use, attempted use, and
threatened use of physical force against another person and,
alternatively, was a felony that involved a substantial risk
of physical force. See United States v.
Ortega-Garcia, 12 F. App'x 897, 899-900 (10th Cir.
United States v. Taylor, the Tenth Circuit concluded
that a defendant's prior conviction under § 645 was
a “crime of violence” under the elements clause
of the career offender Sentencing Guideline, U.S.S.G. §
4B1.2(a)(1). United States v. Taylor, 843 F.3d
1215, 1223-24 (10th Cir. 2016). There, it found the
additional element of a dangerous weapon was sufficient to
satisfy the requisite violent force and satisfy the elements
clause. See id. at 1224-25 (“[R]egardless of
the type of ‘dangerous weapon' that is employed by
a particular defendant, the use of a ‘dangerous
weapon' during an assault or battery always
‘constitutes a sufficient threat of force to satisfy
the elements clause' of § 4B1.2(a)(1).”)
(citing United States v. Mitchell, 653 F. App'x
639, 645 (10th Cir. 2016) (unpublished)).
recently, in United States v. Schubert, 694 F.
App'x 641 (10th Cir. 2017) (unpublished), the Tenth
Circuit re-affirmed Taylor and Mitchell,
and found the defendant's state court convictions for
assault with a dangerous weapon and assault and battery with
a dangerous weapon constituted violent felonies under the
ACCA.Specifically, it found that:
Battery, under Oklahoma law, can be accomplished with
“only the slightest force or touching.” Because
such slight force suffices for a conviction, Oklahoma battery
does not qualify as a violent ...