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Winters v. United States

United States District Court, D. South Dakota, Western Division

September 8, 2016

STACY WINTERS, Movant,
v.
UNITED STATES OF AMERICA, Respondent. CR No. 03-50003

          MEMORANDUM OPINION AND ORDER DENYING MOTION

          Lawrence L. Piersol United States District Judge

         Stacy Winters has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 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.

         BACKGROUND

         Winters pled guilty to voluntary manslaughter in violation of 18 U.S.C. §§ 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. § 924(c) (count 2). On November 1, 2004, Winters was sentenced to consecutive sentences of 120 months on each count. In his § 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).

         DISCUSSION

         In 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. § 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. § 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. § 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. § 924(e) are entitled to file a § 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).

         Winters, however, was not sentenced under the ACCA found in 18 U.S.C. § 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. § 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. § 924(c)(1)(A). Under § 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 property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. §§ 924(c)(3)(A) and (B). The clause in subsection A is referred to herein as the "elements" clause. The government does not argue that Winters' conviction for voluntary manslaughter is a crime of violence within the meaning of the elements clause in § 924(c)(3)(A). The latter clause in subsection B, referred to as the "§ 924(c) residual clause, " contains language that is similar, but not identical, ...


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