United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
W. Molloy, Judge
case comes before the Court on Defendant Burke's motion
to vacate, set aside, or correct the sentence under 28 U.S.C.
§ 2255. Burke is a federal prisoner proceeding with
August 15, 2013, Burke 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). See Plea
Agreement (Doc. 15) at 3-4 ¶ 4. Although the Indictment
did not use the word "brandish, " 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. Burke admitted the
element of brandishing the firearm. See Plea
Agreement at 4 ¶ 4.
November 25, 2013, Burke was sentenced to serve 37 months on
Count 1 and a consecutive term of 84 months on Count 2.
Minutes (Doc. 27); Judgment (Doc. 29) at 1 (citing 18 U.S.C.
§ 924(c)(1)(A)(ii)); id. at 2-3. Burke did not
now seeks relief under the United States Supreme Court's
recent decision in Johnson v. 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
United States' procedural defenses, see Resp. to
§ 2255 Mot. (Doc. 34) at 2-6, stand or fall with the
same question as the merits of the § 2255 motion-that
is, whether Johnson applies to Burke'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 Burke.
18 U.S.C. § 924(e)
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
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 ...