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United States v. Brown

United States District Court, District of Columbia

April 12, 2017

UNITED STATES OF AMERICA,
v.
KEDRICK BROWN, Defendant. Civil Action No. 16-1186 (EGS)

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge.

         Pending before the court is defendant Kedrick Brown's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 in light of the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). Upon consideration of Mr. Brown's motion, the response and reply thereto, the relevant law, and for the reasons discussed below, the Court GRANTS Mr. Brown's motion and will schedule a resentencing.

         I. Background

         On March 2, 2010, Mr. Brown pleaded guilty to one count of possession of a firearm by a prior convicted felon, in violation of 18 U.S.C. § 922(g)(1). Plea Agreement, ECF No. 18. Generally a defendant convicted of a violation of 18 U.S.C. § 922(g) is subject to a maximum of 10 years imprisonment, 18 U.S.C. § 924(a)(2), but under the Armed Career Criminal Act (“ACCA”), a defendant convicted of a violation of 18 U.S.C. § 922(g) is subject to a mandatory minimum of 15 years imprisonment as an armed career criminal if the sentencing court determines that the defendant has three prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). Based on three prior convictions--two “serious drug offense” convictions in the District of Columbia, and one conviction in North Carolina for assault with a deadly weapon with intent to kill (“AWDWIK”) under N.C. Gen. Stat. § 14-32(c), Presentence Investigation Report (“PSR”), ECF No. 22 ¶¶ 25-26, 28--at his sentencing on July 29, 2010 the Court accepted the agreement of the parties that Mr. Brown was an armed career criminal and thus subject to a mandatory minimum of 15 years imprisonment. Sentencing Hrg. Tr., ECF No. 40 at 3:3-7, 5:15-20, 8:9-13, 12:16-19. The Court sentenced him to that mandatory minimum term. Id. at 8:9-13; Judgment, ECF No. 30. On August 2, 2010, Mr. Brown filed a notice of appeal, Notice of Appeal, ECF No. 28, and on April 19, 2011, the D.C. Circuit dismissed Mr. Brown's appeal. Order, ECF No. 35.

         ACCA defines a “violent felony” as any felony that: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion, [or] involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). “These are known respectively as the ‘elements clause, ' the ‘enumerated clause, ' and the ‘residual clause.'” United States v. Booker, Nos. 04-49, 16-1107, 2017 WL 829094, at *2 (D.D.C. Mar. 2, 2017). In Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) (hereinafter “Johnson (2015)”), the Supreme Court held that the residual clause is unconstitutionally vague and violates due process. The Supreme Court then held in Welch v. United States, 136 S.Ct. 1257, 1265 (2016) that the holding in Johnson (2015) announced a new, substantive constitutional rule that applied retroactively to cases on collateral review. On June 2, 2016, the Chief Judge for the United States District Court for the District of Columbia issued a Standing Order appointing “the Office of the Federal Public Defender for the District of Columbia to represent any defendant previously determined to have been entitled to appointment of counsel, or who is now indigent, to determine whether that defendant may qualify to seek to vacate a conviction or to seek a reduction of sentence and to present any motions to vacate a conviction and/or for reduction of sentence in accordance with Johnson [(2015)] and Welch.”

         Pursuant to the procedures set forth in that Standing Order, on June 20, 2016 Mr. Brown, through the Federal Public Defender, filed an abridged § 2255 motion--his first--to vacate, set aside, or correct his sentence on the basis of Johnson (2015), see Def.'s Abridged Mot., ECF No. 41, and on October 26, 2016 he filed a supplemental motion fully briefing the issues presented in the earlier-filed abridged motion. See Def.'s Suppl. Mot., ECF No. 43. On December 30, 2016 the government filed its opposition to Mr. Brown's § 2255 motion, see Gov't's Opp., ECF No. 45, and on February 16, 2017 Mr. Brown filed his reply. See Def.'s Reply, ECF No. 50. Mr. Brown's § 2255 motion is now ripe and ready for the Court's adjudication.

         II. Analysis

         A federal prisoner may file a motion to vacate, set aside, or correct a sentence that “was imposed in violation of the Constitution or laws of the United States . . . [or] was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Mr. Brown argues that he no longer qualifies as an armed career criminal because his prior conviction for North Carolina AWDWIK no longer qualifies as a “violent felony.” Def.'s Suppl. Mot., ECF No. 43 at 2. That is because, Mr. Johnson argues, the far-reaching residual clause--which almost certainly would have categorized North Carolina AWDWIK as a “violent felony”--no longer applies after Johnson (2015), and North Carolina AWDWIK does not qualify as a “violent felony” under ACCA's still-valid enumerated and elements clauses. Id. With only two remaining ACCA predicate convictions--the two District of Columbia drug offenses that qualify as “serious drug offenses”--Mr. Brown asserts that he can no longer be deemed an armed career criminal. Id. at 7-8; see 18 U.S.C. § 924(e)(1) (requiring three prior “violent felony” or “serious drug offense” convictions). If Mr. Brown is no longer an armed career criminal, then his current 15-year term of imprisonment is in excess of the applicable 10-year statutory maximum imposed by 18 U.S.C. § 924(a)(2). See Def.'s Suppl. Mot., ECF No. 43 at 6. If the Court agrees with Mr. Brown, it “shall . . . resentence him.” 28 U.S.C. § 2255(b).

         In response to Mr. Brown, the government argues that this Court should not even reach the merits of his § 2255 claim because, the government maintains, Mr. Brown's § 2255 claim is untimely, Gov't's Opp., ECF No. 45 at 8-10, and that claim has been procedurally defaulted. Id. at 10-12. If the Court does reach the merits, the government argues that North Carolina AWDWIK is a “violent felony” under ACCA's still-valid elements clause, so Mr. Brown remains an armed career criminal subject to ACCA's 15-year mandatory minimum sentence. Id. at 12-14.

         The Court will first address the government's statute of limitations and procedural default arguments. Finding those arguments unavailing, the Court will proceed to a consideration of the merits of Mr. Brown's § 2255 claim. For the reasons discussed below, the Court ultimately determines that Mr. Brown is entitled to the relief that he seeks.

         A. Statute of Limitations

         There is a one-year statute of limitations applicable to § 2255 motions. 28 U.S.C. § 2255(f). The limitation period runs from the latest of four statutorily-specified dates, including, as relevant here, “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Id. § 2255(f)(3). The government concedes that “Johnson (2015) triggered the exception to the one-year statute of limitations set forth in 28 U.S.C. § 2255(f)(3), ” but it argues that Mr. Brown “has not shown that the claim in his § 2255 motion is in fact predicated on Johnson (2015).” Gov't's Opp., ECF No. 45 at 8-9. Instead of being based on Johnson (2015), the government maintains that the claim in Mr. Brown's § 2255 motion is predicated on Curtis Johnson v. United States, 559 U.S. 133 (2010) (hereinafter “Johnson (2010)”) and is thus untimely. Id. at 9-10. In Johnson (2010), the Supreme Court examined ACCA's elements clause--not the residual clause that was at issue in Johnson (2015)--and held that in the elements clause “the phrase ‘physical force' means violent force--that is, force capable of causing physical pain or injury to another person.” 559 U.S. at 140. The government makes two arguments to support its view that Mr. Brown's motion is based on Johnson (2010), not Johnson (2015), and is thus barred by § 2255(f)'s one-year limitation period. Neither argument is persuasive.

         First, the government argues that Mr. Brown has the burden of showing that this Court relied upon ACCA's residual clause, rather than the elements clause, when it determined that his prior conviction for North Carolina AWDWIK qualified as an ACCA “violent felony.” Gov't's Opp., ECF No. 45 at 9. The government's theory seems to be that if Mr. Brown does not carry that burden, then the Court must conclude that it did not rely upon the residual clause and thus must conclude that Mr. Brown is not asserting a claim based on the ruling in Johnson (2015) that the residual clause is unconstitutionally vague. See id.

         Although two panels of the Eleventh Circuit have suggested that it is the petitioner's burden to establish that the sentencing court relied upon the residual clause, see In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016); In re Hires, 825 F.3d 1297, 1299 (11th Cir. 2016), a “subsequent panel of the Eleventh Circuit and numerous district courts . . . have rejected that same argument.” Booker, 2017 WL 829094, at *4 (citing In re Chance, 831 F.3d 1335, 1340-41 (11th Cir. 2016); United States v. Britto, No. 04-143, 2017 WL 515007, at *1-2 (N.D. Okla. Feb. 8, 2017); United States v. Mims, Nos. 05-20079-01, 16-2332, 2017 WL 477091, at *3 (D. Kan. Feb. 6, 2017); Shabazz v. United States, No. 16-1083, 2017 WL 27394, at *5 (D. Conn. Jan. 3, 2017); Diaz v. United States, Nos. 16-323, 11-381, 2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016)). Thus, a majority of courts that have considered the issue “have held that--when unclear on which ACCA clause the sentencing judge rested a predicate conviction--the petitioner's burden is to show only that the sentencing judge may have used the residual clause.” See United States v. Winston, No. 01-79, 2016 WL 4940211, at *6 (W.D. Va. Sept. 16, 2016) (collecting cases), vacated on other grounds, 850 F.3d 677 (4th Cir. 2017). This reduced burden makes sense for a number of reasons, including the fact that there was no practical reason for judges to identify whether they were relying upon the elements or residual clause prior to June 26, 2015, when the Supreme Court decided in Johnson (2015) that the residual clause was void for vagueness, because “[p]rior convictions that were not violent felonies under the elements clause often fell under the residual clause.” Booker, 2017 WL ...


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