United States District Court, D. South Dakota, Northern Division
DAVID D. LARVIE, JR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
CHARLES B. KORNMANN, United States District Judge.
pleaded guilty to use of a firearm during a crime of
violence. He was sentenced on December 1, 2008, to 120 months
custody to be served consecutively to two other revocation
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.
The Residual Clause of the Armed Career Criminal
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 ...