United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER DENYING MOTION TO VACATE AND ORDER
DENYING CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN United States District Judge.
pleaded guilty to conspiracy to distribute a controlled
substance and was sentenced on October 7, 2013, to 188 months
imprisonment. His sentence was subsequently reduced to 151
months pursuant to 18 U.S.C. § 3582(c)(2) based upon
Amendment 782 to the Sentencing Guidelines.
has 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.
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 risk of physical injury to another.
18 U.S.C.A. § 924(e)(2)(B) (emphasis supplied).
924(e)(2)(B)(i) is known as the elements clause. Section
924(e)(2)(B)(ii) is known as the enumerated offenses clause.
The phrase "or otherwise involves conduct that presents
a serious potential risk of physical injury to another"
is known as the residual clause. Johnson v. United
States, ___U.S. at___, 135 S.Ct. at 2556. The United States
Supreme Court held in Johnson that the residual
clause of the ACCA is unconstitutionally vague. Johnson
v. United States, ___U.S. at___, 135 S.Ct. at 2557-60.
The Johnson "decision does not call into
question application of the Act to the four enumerated
offenses, or the remainder of the Act's definition of a
violent felony." Johnson v. United States,
___U.S. at___. 135 S.Ct. at 2563. The Supreme Court has
held that Johnson is to be applied retroactively to
cases under collateral review. Welch v. United States,
___ U.S.___, 136 S.Ct. 1257, 194 L.Ed.2d 387
(2016).However, only defendants who were subject to
ACCA's mandatory minimum sentence because at least one of
their prior convictions was for a violent felony as defined
by the residual clause are entitled to collateral relief.
crime of conviction was not for an 18 U.S.C. § 922(g)
offense and he was not subject to the mandatory minimum 15
year sentence provision of ACCA. The rule announced in
Johnson v. United States does not afford petitioner
contends that Johnson invalidated the two level
enhancement he received under Guidelines § 3C1.2 for
reckless endangerment during flight. That enhancement applied
because this Court found that the petitioner "recklessly
created a substantial risk of death or serious bodily injury
to another person" when he led law enforcement on a high
speed chase after they attempted to stop his vehicle to make
contact with him. Petitioner contends that
Johnson's holding that the 18 U.S.C.A. §
924(e)(2)(B) phrase "presents a serious potential risk
of physical injury to another" is unconstitutionally