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United States v. Ross

United States District Court, D. Montana, Billings Division

April 6, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICARDO ANDRE ROSS, Defendant/Movant.

          ORDER GRANTING § 2255 MOTION AND SETTING RE-SENTENCING

          BRIAN MORRIS, UNITED STATES DISTRICT COURT JUDGE

         This matter comes before the Court on Defendant/Movant Ross's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Ross seeks relief under Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015).

         I. Background

         The Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), mandates a fifteen-year minimum sentence and authorizes a maximum sentence of life in prison if a defendant convicted of being a felon in possession of a firearm has three previous convictions for a serious drug offense or a violent felony. If the defendant does not have three qualifying convictions, the ACCA does not apply, and the defendant faces a maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2).

         On April 18, 2013, Ross was indicted on one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 1); one count of possessing methamphetamine with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1) (Count 2); and one count of possessing a firearm in furtherance of a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). As to Count 1, the indictment recited the penalties that would apply if Ross was “an armed career criminal.” See Indictment (Doc. 1) at 1; Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). Assistant Federal Defender Steve Babcock was appointed to represent him. Order (Doc. 8).

         The parties reached a plea agreement.[1] As relevant here, Ross agreed to plead guilty to Count 1. The United States agreed to dismiss Counts 2 and 3 and to seek a three-level reduction in Ross's offense level for his acceptance of responsibility. Plea Agreement (Doc. 24) at 2 ¶ 2, 3 ¶ 3, 8 ¶ 6. On November 15, 2013, Ross pled guilty to Count 1. Minutes (Doc. 29).

         A presentence report was prepared. Based on Ross's prior convictions, his base offense level under U.S.S.G. § 2K2.1(a)(2) was 24. He received a four-level increase for possessing a firearm in connection with another felony offense. Presentence Report ¶¶ 17, 18. His adjusted offense level was elevated from 28 to 33 by operation of the Guidelines' armed career criminal provision, U.S.S.G. § 4B1.4. He received a three-level reduction for acceptance of responsibility for a total offense level of 30. Presentence Report ¶¶ 23-26. His criminal history category was VI. His advisory guideline range was 168 to 210 months, but the fifteen-year statutory mandatory minimum altered the guideline range to 180 to 210 months. Ross was sentenced to serve 180 months in prison, to run consecutive to his Montana felony conviction for partner or family member assault, and to be followed by a five-year term of supervised release. Minutes (Doc. 39); Judgment (Doc. 40) at 2-3.

         Ross did not appeal. His conviction became final on March 6, 2014. See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54 (2012).

         On June 26, 2015, the United States Supreme Court held that a certain phrase in the Armed Career Criminal Act (“ACCA”) was so vague that “[i]ncreasing a defendant's sentence under the clause denies due process of law.” Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 2557 (2015).

         On June 15, 2016, within one year of the Court's decision in Johnson, Ross filed his § 2255 motion, claiming an entitlement to relief under that decision. See Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 1265 (2016) (making Johnson retroactively applicable to cases on collateral review); 28 U.S.C. § 2255(f)(3).

         II. Analysis

         As the United States points out, Ross had two prior convictions for a serious drug offense. Ross was charged and sentenced in one proceeding with two drug offenses. The ACCA considers whether the two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). One was committed on September 16, 1999. Ross was arrested for that offense and conditionally released the following day. On September 19, 1999, he committed the second drug offense. See Presentence Report ¶ 46; see also Kitsap County Second Am. Information (Doc. 49-2) at 1-2; Kitsap County Judgment (Doc. 49-1) at 1; compare United States v. McElyea, 158 F.3d 1016, 1018-21 (9th Cir. 1998); cf. United States v. Rodriquez, 553 U.S. 377, 380-81, 383 (2008).

         Consequently, if Ross had any other conviction constituting a “violent felony, ” he remains, despite Johnson, subject to sentencing under the ACCA. Only one conviction appears to be at issue:[2] a conviction for felony partner or family member assault (“PFMA”), a violation of Mont. Code Ann. § 45-5-206(1)(a) (2007). See Yellowstone County Information (Doc. 49-4) at 1-2; Yellowstone County Judgment (Doc. 49-3) at 1; Presentence Report ¶ 50. Ross claims this crime fails to meet the federal definition of a “violent felony.” The United States disagrees.

         A. “Violent Felony”

         After Johnson, the ACCA in effect defines a “violent felony” as a felony that:

(i) has as an element the use, attempted use, or threatened use of physical force against the ...

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