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United States v. Malarkey

United States District Court, D. Montana, Missoula Division

April 7, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
SHAWN PATRICK MALARKEY, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY

          Donald W. Molloy United States District Court

         This case comes before the Court on Defendant Malarkey's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Malarkey is a federal prisoner proceeding with counsel.

         I. Background

         On July 11, 2012, Malarkey pled guilty to one count of robbery involving controlled substances, a violation of 18 U.S.C. § 2118(c)(1) (Count 1), and one count of using a firearm during and in relation to the Count 1 robbery, a violation of 18 U.S.C. § 924(c)(1)(A) (Count 2). Plea Agreement (Doc. 38) at 3-4 ¶ 4. Although the Indictment did not use the word "brandishes, " it cited 18 U.S.C. § 924(c)(1)(A)(ii), and the caption set the minimum penalty for Count 2 at seven years. See Indictment (Doc. 1) at 1 (caption), 3. In addition, Malarkey expressly admitted the element of brandishing the firearm. See Change of Plea Tr. (Doc. 58) at 3:7-5:5, 34:19-35:1, 37:17-38:23, 39:18-40:1, 40:16-41:16.

         On October 12, 2012, Malarkey was sentenced to serve 100 months on Count 1 and a consecutive term of 84 months on Count 2. Minutes (Doc. 45); Judgment (Doc. 46) at 1 (citing 18 U.S.C. § 924(c)(1)(A)(ii)); id. at 2-3. On January 28, 2013, Malarkey voluntarily dismissed his appeal. See Order (Doc. 60) at 1, United States v. Malarkey, No. 12-30325 (9th Cir. Jan. 28, 2013).

         Malarkey now seeks relief under the United States Supreme Court's recent decision in Johnsonv. United States, __ U.S. __, 135 S.Ct.2551 (2015). See also Welchv. United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016) (holding that Johnson applies to cases already final when it was issued).

         II. Procedural Defenses

         The United States' procedural defenses, see Resp. to § 2255 Mot. (Doc. 63) at 2-6, stand or fall with the same question as the merits of the § 2255 motion- i.e., whether Johnson applies to Malarkey's motion. If Johnson does not support relief, the United States does not need its procedural defenses to carry any water. The question is whether Johnson supports relief for Malarkey.

         III. 18 U.S.C. § 924(e)

         In Johnson, the Court considered the meaning of a provision in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA imposes a harsher sentence on a person convicted of a firearms offense if the person has three prior convictions for a violent felony or controlled substance offense. The Act 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 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. § 924(e)(2)(B). Johnson discussed only the italicized clause, commonly called the "residual" clause.

         The Supreme Court found the residual clause so vague that it deprived defendants of fair notice of the consequences of their decisions and so loose that it invited arbitrary enforcement by sentencing judges. Therefore, the decision held, federal sentencing courts may no longer enhance a defendant's sentence based on a prior conviction when that conviction qualifies as a "violent felony" only under the residual clause. See Johnson, 135 U.S. at 2555-60, 2563. Johnson did not ...


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