United States District Court, D. South Dakota, Western Division
Winters, Plaintiff, represented by Neil K. Fulton, Federal
Public Defender's Office.
States of America, Respondent, represented by Kevin Koliner,
U.S. Attorney's Office.
MEMORANDUM OPINION AND ORDER DENYING MOTION
LAWRENCE L. PIERSOL, District Judge.
Winters has filed a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. Â§ 2255. (Doc. 1.) The United
States responded with a Motion to Dismiss. (Doc. 11.) For the
following reasons, the Motion to Vacate will be denied.
pled guilty to voluntary manslaughter in violation of 18
U.S.C. Â§Â§ 1112 and 1153 (count 1), and use of a firearm
during and in relation to a crime of violence in violation of
18 U.S.C. Â§ 924(c) (count 2). On November 1, 2004, Winters
was sentenced to consecutive sentences of 120 months on each
count. In his Â§ 2255 motion filed on June 15, 2016, Winters
claims that his conviction on count 2 for use of a firearm
during a crime of violence is invalid in light of Johnson
v. United States, 135 S.Ct. 2551 (2015).
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (ACCA) is
unconstitutionally vague because it creates uncertainty about
how to evaluate the risks posed by a crime and how much risk
it takes to qualify as a violent felony. Johnson,
135 S.Ct. at 2557-58. The ACCA, 18 U.S.C. Â§ 924(e), defines
the term "violent felony" as any crime punishable
by a term of imprisonment exceeding one year 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. Â§ 924(e)(2)(B).
The first prong of this definition is sometimes referred to
as the "elements clause, " while the second prong
contains the "enumerated crimes" and, finally, what
is commonly called the "residual clause" (the
"ACCA residual clause"). The ACCA residual clause
covers "conduct that presents a serious potential risk
of physical injury to another." 18 U.S.C. Â§
924(e)(2)(B)(ii). The Supreme Court in Johnson made
clear that its holding that the ACCA residual clause is void
did not invalidate the elements clause or the enumerated
crimes. 135 S.Ct. at 2563.
Post-Johnson, federal prisoners who were sentenced
in reliance on the ACCA's now-void residual clause in 18
U.S.C. Â§ 924(e) are entitled to file a Â§ 2255 motion in
district court because Johnson announced a new rule
of constitutional law made retroactively applicable to ACCA
cases on collateral review. Welch v. United States,
136 S.Ct. 1257, 1264-65 (2016).
however, was not sentenced under the ACCA found in 18 U.S.C.
Â§ 924(e). Rather, as explained above, Winters was sentenced
for the use of a firearm in furtherance of a crime of
violence in violation of 18 U.S.C. Â§ 924(c). Section 924(c)
provides, in relevant part:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime... uses or carries a
firearm, or who, in furtherance of any such crime, possesses
a firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime -
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years....
18 U.S.C. Â§ 924(c)(1)(A). Under Â§ 924(c), "crime of
violence" is defined as an offense that is a felony and:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or ...