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United States v. Burke

United States District Court, D. Montana, Missoula Division

April 7, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MICHAEL SCOTT BURKE, Defendant/Movant

          ORDER DENYING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY

          Donald W. Molloy, Judge

         This 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 counsel.

         I. Background

         On 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.

         On 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 appeal.

         Burke 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 was issued).

         II. Procedural Defenses

         The 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.

         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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