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Lewis v. United States

United States District Court, W.D. Michigan, Southern Division

October 19, 2017




         Before the Court is a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 filed by Leroy Henry Lewis (ECF No. 1). Movant's appointed counsel filed a supplemental brief in support of the motion (ECF No. 23) and the Government has filed a response (ECF No. 30). For the reasons herein, the motion will be denied.

         I. Background

         In 2002, a jury found Movant guilty of being a felon in possession of a firearm, possession of a stolen firearm, and possession with intent to distribute cocaine base. At sentencing, the Court determined that he had at least three prior convictions that qualified as violent felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The ACCA raised the minimum term of imprisonment for Movant's felon-in-possession conviction to 15 years, with a maximum of life imprisonment. Without the ACCA enhancement, his longest possible term for this conviction was 15 years. His maximum terms for the stolen firearm and drug convictions were 10 and 20 years, respectively. The ACCA enhancement also elevated his range of sentence under the Sentencing Guidelines. After considering the relevant factors, the Court sentenced Movant to 15 years for the felon-in-possession conviction, 10 years for the stolen firearm conviction, and 20 years for the drug conviction, to be served concurrently.

         This is Movant's second motion to correct his sentence under § 2255. The Court of Appeals for the Sixth Circuit has given him authorization to file a second or successive motion. He claims that his sentence is invalid in light of Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), which held that the “residual clause” in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. Johnson II, 135 S.Ct. at 2557. The ACCA defines “violent felony” as:

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 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.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized text in the definition above is the residual clause. The clause in subsection (i) is known as the “elements” clause, and the remaining portion of subsection (ii) is known as the “enumerated offenses” clause.

         According to his presentence report, Movant was convicted of breaking and entering in 1969, armed robbery in 1978, unarmed robbery in 1984, and unarmed robbery in 1990. All of these convictions were in Michigan. The ACCA applies to a person who violates 18 U.S.C. § 922(g) and has at least three previous convictions for a violent felony. 18 U.S.C. § 924(e)(1). Movant asserts that his prior convictions do not qualify as violent felonies after Johnson II; thus, his sentence is improper. Respondent argues (1) that Movant has not met his burden of proof of demonstrating that his sentence is based on the residual clause; and (2) that Movant's convictions for armed robbery and unarmed robbery qualify as violent felonies even after Johnson II.

         II. Analysis

         A. Burden of Proof

         Respondent argues that Movant's motion should be denied because he cannot meet his burden of proof of showing that he was sentenced under the residual clause of the ACCA. Neither the sentencing transcript nor the pre-sentence report indicate whether the Court relied upon the residual clause when determining that Movant's prior convictions are violent felonies.

         The Sixth Circuit has not addressed this argument, and other courts considering it have reached different conclusions, even within the same Circuit. Some courts have indicated that the burden is on the movant to show that the court relied upon the residual clause, even where the record is unclear. See In re Moore, 830 F.3d 1268, 1271-72 (11th Cir. 2016); In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (opining that a prisoner “must show that he was sentenced under the residual clause in the ACCA”). Others have been unwilling to put such a burden on the movant. See, e.g., United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (“We will not penalize a movant for a court's discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony.”); United States v. Geozos, 870 F.3d 890, 895 (9th Cir. 2017) (“[W]hen it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant's § 2255 claim ‘relies on' the constitutional rule announced in Johnson II.”); In re Chance, 831 F.3d 1335, 1340 (11th Cir. 2016) (criticizing Moore and noting that its standard is unworkable because a court is not required by law to specify at sentencing which clause in the ACCA it is relying upon). The Tenth Circuit ...

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