United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
Introduction & Procedural History
Before the court is petitioner Jerome Lucas’ motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket 1). Mr. Lucas pled guilty to felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). United States v. Jerome Lekendric Lucas, CR. 06-50057-AWB, Dockets 17 & 20. Mr. Lucas’ prior violent felony convictions subjected him to a statutorily mandated fifteen-year minimum term of imprisonment under the Armed Career Criminal Act (“ACCA”). Lucas CR., Docket 18; see also 18 U.S.C. § 924(e)(1). On April 30, 2007, the court sentenced Mr. Lucas to fifteen years in prison followed by five years of supervised release. (Lucas CR., Docket 26 at p. 1).
On March 25, 2013, Mr. Lucas filed his first motion to vacate, set aside or correct his sentence. Jerome Lucas v. United States, CIV. 13-5021, Docket 1. The court adopted the magistrate judge’s report and recommendation, dismissed Mr. Lucas’ § 2255 petition with prejudice and declined to issue a certificate of appealability. (Lucas CIV. 1, Docket 8). Mr. Lucas did not appeal.
On June 26, 2015, the United States Supreme Court determined the residual clause of the ACCA was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) (holding “that imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution’s guarantee of due process”). On October 30, 2015, the United States Court of Appeals for the Eighth Circuit granted Mr. Lucas’ petition to file a successive habeas action in federal district court. (Docket 1-2 at p. 1). On November 16, 2015, Mr. Lucas filed his second § 2255 petition seeking to be resentenced based on the Supreme Court’s decision in Johnson. (Docket 1). On December 22, 2015, the Federal Public Defender for North Dakota and South Dakota, on behalf of Mr. Lucas, filed a supplement to the § 2255 petition. (Docket 5). Mr. Lucas asserts he is eligible for immediate release. Id. at 1.
The government responded to Mr. Lucas’ petition conceding he was no longer an armed career criminal in light Johnson. (Docket 7 at p. 6). The government agreed Mr. Lucas’ sentence should be vacated and he should be resentenced without the ACCA sentencing enhancement. Id. The government requests the court resentence Mr. Lucas to a term of imprisonment within the ten-year maximum authorized for the offense of felon in possession of a firearm. Id.; see also 18 U.S.C. § 924(a)(2). Mr. Lucas, through counsel, responded and indicated he has already served 111 months in prison. (Docket 8 at p. 1). Mr. Lucas asserts his non-ACCA sentencing guideline range is 70 to 87 months based on a non-ACCA total offense level of 21 and a non-ACCA criminal history category of V. Id. Mr. Lucas requested a term of supervised release of three years or less. Id.
Generally, a defendant who is found guilty of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is subject to a maximum term of imprisonment of ten years. 18 U.S.C. § 924(a)(2). Previously, if the defendant had three or more prior convictions for a “serious drug offense” or a “violent felony, ” the ACCA imposed a minimum term of imprisonment of fifteen years up to life in prison. 18 U.S.C. § 924(e)(1); see also Johnson, 135 S.Ct. at 2555. The ACCA defines “violent felony” as:
[A]ny 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 phrase “or otherwise involves conduct that presents a serious potential risk of physical injury to another” is what is known as the ACCA’s residual clause. Johnson, 135 S.Ct. at 2555-56. In holding the residual clause was unconstitutionally vague, the Supreme Court reasoned “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.”Id. at 2557.
Following Johnson, the Eighth Circuit vacated a defendant’s sentence enhanced under the career offender sentencing guideline and remanded the case to the district court to determine if the residual clause of the career offender guideline is unconstitutional. United States v. Taylor, 803 F.3d 931, 933 (8th Cir. 2015); see also U.S.S.G. § 4B1.2(a)(2). The Eighth Circuit explained its prior reasoning “that the guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson.” Taylor, 803 F.3d at 933 (referencing its reasoning in United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990)). The Taylor decision also noted that “[a]fter Johnson, the Supreme Court vacated and remanded for reconsideration ...