United States District Court, W.D. Oklahoma
MILES-LaGRANGE UNITED STATES DISTRICT JUDGE.
Loy Eugene Driver (“Driver”), a federal prisoner,
filed a Motion to Correct Sentence under 28 U.S.C. §
2255 on June 23, 2016. On October 3, 2016,
plaintiff-respondent United States of America filed its
20, 2012, a grand jury returned an Indictment charging Driver
with being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g). On August 13, 2012, Driver pled
guilty to the Indictment. On April 11, 2013, this Court
sentenced Driver to 180 months of incarceration under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1), based upon Driver's two prior Oklahoma
convictions for controlled substances offenses and prior
Oklahoma conviction for second-degree murder. Driver did not
appeal the Court's judgment or sentence.
§ 2255 motion, Driver asserts that in light of the
United States Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), he is no longer an
armed career criminal because his Oklahoma murder in the
second degree conviction no longer qualifies as an ACCA
“violent felony” and that his sentence should be
vacated. The ACCA provides:
(e)(1) In the case of a person who violates section 922(g) of
this title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen
years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).
(2) As used in this subsection -
(A) the term “serious drug offense” means -
(i) an offense under the Controlled Substances Act (21 U.S.C.
801 et seq.), the Controlled Substances Import and Expert Act
(21 U.S.C. 951 et seq.), or chapter 705 of title 46, for
which a maximum term of imprisonment of ten years or more is
prescribed by law; or
(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)), for which
a maximum term of imprisonment of ten years or more is
prescribed by law;
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(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 ...