United States District Court, D. South Dakota, Northern Division
Fernando Buendia Reyes, Plaintiff, represented by Neil K.
Fulton, Federal Public Defender's Office.
States of America, Respondent, represented by Kevin Koliner,
U.S. Attorney's Office.
CHARLES B. KORNMANN, District Judge.
pleaded guilty to robbery and use of a firearm during a crime
of violence. He was sentenced on February 22, 2010, to 85
months custody on the robbery count and 84 months custody on
the firearms count, to be served consecutively.
filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. He contends that he is entitled
to relief under Johnson v. United States, ___ U.S.
____, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), wherein
the United States Supreme Court struck down as
unconstitutionally vague the so-called residual clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).
Johnson was made retroactive to cases on collateral review by
the Supreme Court in Welch v. United States, ___ U.S.
____, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2255 Proceedings for
the United States District Courts.
Residual Clause of the Armed Career Criminal Act.
44 of Title 18 of the United States Code sets forth the laws
as to the manufacture, import, sale, and possession of
firearms. Section 922(g) prohibits any person who has been
convicted of a felony, is a fugitive from justice, is an
unlawful user of or addicted to any controlled substance, has
been adjudicated as having mental defects or has been
committed to a mental institution, is an illegal alien, has
been dishonorably discharged from the armed forces, has
renounced United States citizenship, is subject to a
restraining order, or has been convicted of a crime of
domestic violence from shipping, transporting, possessing, or
receiving any firearm or ammunition. 18 U.S.C. §
maximum custodial penalty for a violation of§ 922(g) is ten
years. 18 U.S.C. § 924(a)(2). An enhanced mandatory minimum
penalty of 15 years custody applies if a prohibited person
"has three previous convictions by any court referred to
in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions
different from one another." 18 U.S.C. § 924(e)(1)
(emphasis supplied). That mandatory minimum penalty was
enacted as part of The Armed Career Criminal Act of 1984
("ACCA"), as amended.
term "violent felony" is defined 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 ...