United States District Court, D. Montana, Billings Division
ORDER GRANTING § 2255 MOTION AND SETTING
MORRIS, UNITED STATES DISTRICT COURT JUDGE
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).
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).
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).
parties reached a plea agreement. 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).
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.
did not appeal. His conviction became final on March 6, 2014.
See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641,
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).
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).
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).
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: 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.
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 ...