Searching over 5,500,000 cases.


searching
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. Burch

United States District Court, N.D. Oklahoma

February 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
THEODORE BURCH, JR., Defendant.

          OPINION AND ORDER

          James H. Payne, United States District Judge.

         Before the Court is Defendant Theodore Burch, Jr.'s (“Burch”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. 54). Burch contends his detention pursuant to the Judgment and Sentence of the United States District Court for the Northern District of Oklahoma, in Case No. 13-CR-50-JHP, is unlawful. Plaintiff the United States of America (“Government”) filed a Response in Opposition to Burch's Motion (Dkt. 57). Burch subsequently filed a Reply brief titled “Motion to Traverse Government's Response and Amend to Include ‘United States v. Johnson'” (Dkt. 58); a “Motion to Reduce Sentence Under ‘Johnson v. United States'” (Dkt. 60); a “Motion of Finding or Inquiry” (Dkt. 62); and a “Motion to Amend to Document #58 (‘Mathis v. U.S., 2016')” (Dkt. 64). For the reasons cited herein, Burch's request for relief pursuant to § 2255 is GRANTED.

         BACKGROUND

         On March 7, 2013, a federal Grand Jury indicted Burch with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). (Dkt. 11 (Indictment)). Assistant Federal Public Defender William Widell was appointed to represent Burch in the district court proceedings. On April 15, 2013, Burch entered a plea of guilty to the Indictment. (Dkt. 21).

         In advance of sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”) as to Burch, 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 ¶¶ 17, 30). Burch's ACC classification was based on his having committed the § 922(g)(1) offense after sustaining three prior convictions for a violent felony. Burch's predicate ACC convictions are two convictions for Robbery with Firearm and two convictions for Burglary Second Degree in violation of 21 Okla. Stat. § 1435. (See PSR ¶ 17; Dkts. 30-3, 30-4). As an ACC, Burch faced a fifteen-year mandatory minimum sentence. (PSR ¶ 53).

         Burch objected to his ACC classification, challenging the use of his two second-degree burglary convictions to enhance his sentence (Dkt. 28). In his Objection to the PSR, Burch argued Oklahoma's second-degree burglary statute was divisible, encompassing conduct broader than the generic crime of burglary-“an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” (Id. at 1) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). Because the Oklahoma statute was broader than the definition of generic burglary, Burch argued the Court was required to apply a modified categorical approach, and the government was required to prove that Burch's entry into the buildings was not by tool and that the goods were removed from a building rather than an alternative object such as a car, boat, or trailer. (Id. at 4).

         In response, the Government submitted the charging documents and judgments in both of Burch's Tulsa County second-degree burglary cases (Case Nos. CRF-83-3167 and CRF-83-3169), to demonstrate both convictions were for generic burglary and therefore qualified as ACCA predicates. (Dkt. 30). The charging Information in Case No. CRF-83-3167 alleged Burch did “break and enter into a certain building . . . Kinney Shoes in which building personal property of value was kept and contained by breaking open [a] window on [the] northside of said building and entering without the consent of said owner, with the willful, felonious and buglarious intent to steal said property.” (Dkt. 30-3). Burch pleaded guilty to that charge of Burglary Second Degree on January 13, 1984. (Id.). In Case No. CRF-83-3169, the charging Information alleged Burch did “break and enter into a certain building . . . Otasco Outlet store in which building personal property of value was kept and contained, by breaking out an outer window of said building and entering without the consent of said owner with the wil[l]ful, felonious and burglarious intent to steal said property.” (Dkt. 30-4). Burch pleaded guilty to that charge of Burglary Second Degree on January 13, 1984. (Id.).

         At sentencing, the Court overruled Burch's objections and found Burch to be an ACC. (Dkt. 43 (Sent. Tr.), at 6, 10). The Court concluded it was “clear from the charging documents and case law” that Burch's two prior convictions for Burglary Second Degree met the definition of generic burglary and the definition of a violent felony under the ACCA. (Id. at 5). The Court sentenced Burch to imprisonment for 180 months on the Indictment, the mandatory minimum sentence under the ACCA. (Id. at 8).

         Burch appealed his sentence, arguing the Government had failed to prove his prior burglary convictions met the definition of generic burglary for purposes of the ACCA. (Aplt. Br. in Case No. 13-5117). On appeal, Burch acknowledged that use of the modified categorical approach shows that Burch had committed burglaries of buildings, as generic burglary requires. (Id. at 7). However, Burch argued the modified categorical approach was inapplicable to the Oklahoma second-degree burglary statute, because of Supreme Court precedent in Descamps v. United States, 133 S.Ct. 2276 (2013). Burch argued that under Descamps, the modified categorical approach does not apply to statutes “that contain a single, ‘indivisible' set of elements sweeping more broadly than the corresponding generic offense.” 133 S.Ct. at 2283. Burch argued the Oklahoma burglary statute was broader than generic burglary, because in Oklahoma burglary may be committed with a tool, which is not an element of generic burglary.

         Burch acknowledged, however, that the Tenth Circuit had previously held that generic burglary did encompass “entry by a tool or an instrument” for ACCA purposes, in United States v. Cartwright, 678 F.3d 907, 914 (10th Cir. 2012). Burch recognized that Cartwright was controlling and that his argument on appeal was foreclosed, but he explained his appeal was filed for the purposes of urging a change in law and of preserving his claim “that Oklahoma's second degree burglary is not subject to the modified categorical analysis, and the district [sic] erred by relying on such analysis in reaching their decision to invoke the ACCA.” (Aplt. Br. at 8-9).

         The Tenth Circuit affirmed the sentence imposed by this Court. United States v. Burch, 569 F. App'x 548 (10th Cir. 2014). Burch filed a petition for a writ of certiorari with the United States Supreme Court. The Supreme Court denied certiorari on October 20, 2014. (Dkt. 53).

         Burch has now filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. (Doc. No. 54). Burch raises two related grounds in his motion: (1) his counsel was ineffective for failure to argue that his prior burglary conviction did not constitute a predicate offense under the ACCA and (2) his Due Process rights were violated when his prior burglary conviction was counted as a predicate offense for ACCA purposes. The Court ordered the Government to respond to Burch's § 2255 motion. (Dkt. 55). The Government filed a Response in Opposition to Burch's § 2255 motion (Dkt. 57), and Burch filed a Reply combined with a Motion to Amend to include a claim for relief pursuant to United States v. Johnson, 135 S.Ct. 2551 (2015) (Dkts. 58, 59). Burch subsequently filed a “Motion to Reduce Sentence Under ‘Johnson v. United States'” (Dkt. 60), and a Motion to Amend his § 2255 motion to add a claim pursuant to Mathis v. United States, 136 S.Ct. 2243 (2016), as a fourth ground for relief (Dkt. 64). On April 12, 2017, the Court directed the Government to respond to the requests to amend. (Dkt. 65). The Government filed a Response in Opposition to Burch's requests to amend on June 12, 2017. (Dkt. 68). Burch filed a Reply to the Government's opposition brief on August 3, 2017 (Dkt. 71). The pending motions are now fully briefed and ripe for this Court's review.

         DISCUSSION

         I. Burch's Status Under the ACCA

         A. Status at the Time of Burch's Sentencing and Appeal

         As explained above, Burch's sentence was enhanced to a fifteen-year minimum as a result of his ACC status. Burch was found to be an ACC based on his two prior convictions for Oklahoma second-degree burglary and two prior convictions for armed robbery. The burglary convictions fall into the “enumerated offenses” clause of the violent felony definition.

         Prior to sentencing, Burch's counsel challenged the use of his two second-degree burglary convictions to enhance his sentence (Dkt. 28). Counsel challenged whether Burch's second-degree burglary convictions qualified as generic burglaries and therefore as violent felonies for ACCA purposes. At sentencing, Burch's counsel stood on the objection, and the Court rejected Burch's argument. (See Dkt. 43 (Sent. Tr.)). By relying on the “modified categorical approach, ” the Court determined at sentencing that the ...


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.