United States District Court, D. Montana, Great Falls Division
ORDER GRANTING § 2255 MOTION AND SETTING
Morris United States District Court Judge.
matter comes before the Court on Defendant/Movant Mann's
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. Mann seeks relief under Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015).
found in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), is subject to a maximum sentence of ten
years. See 18 U.S.C. § 924(a)(2). The Armed
Career Criminal Act, 18 U.S.C. § 924(e)(1), mandates a
fifteen-year minimum sentence and a maximum sentence of life
in prison, however, if the felon has three previous
convictions for a serious drug offense or a violent felony.
grand jury indicted Mann on July 17, 2009, on one count of
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1) (Count 1), and one count of
possession of a stolen firearm in violation of 18 U.S.C.
§ 922(j) (Count 2). As to Count 1, the caption of the
indictment cited the Armed Career Criminal Act, and the text
of Count 1 recited that Mann previously had been convicted of
felonies on three occasions. See Indictment (Doc. 1)
at 1-2. The court appointed counsel to represent Mann. Order
parties reached a plea agreement. Mann agreed to plead guilty
to Count 1, the violation of 18 U.S.C. § 922(g)(1). The
United States agreed to dismiss Count 2, to seek a
three-level reduction in Mann's offense level for his
acceptance of responsibility, and to recommend a sentence at
the low end of the applicable advisory guideline range.
See Plea Agreement (Doc. 24) at 2 ¶ 4, 3 ¶
5, 11 ¶ 12, 12 ¶ 13. Mann waived “his right
to challenge the sentence in a collateral proceeding pursuant
to 28 U.S.C. § 2255, ” except as to “facts
not known or reasonably capable of being known at the time of
his entry of guilty plea” or allegations of ineffective
assistance of counsel. Plea Agreement (Doc. 20) at 10-11
¶ 11 para. 2. The court accepted Mann's guilty plea
to Count I on March 16, 2010. See Minutes (Doc. 23).
presentence report was prepared. Mann's base offense
level under U.S.S.G. § 2K2.1(a)(2) was 24. He received
an upward adjustment for possessing a stolen firearm and a
four-level increase for possessing firearms in connection
with another felony offense. See Presentence Report
¶¶ 20, 21. Mann's status as an armed career
criminal under 18 U.S.C. § 924(e)(1), triggered a
special provision of the guidelines that superseded the
guideline calculation under U.S.S.G. § 2K2.1. This
designation elevated Mann's adjusted offense level from
30 to 34. See U.S.S.G. § 4B1.4(b). Mann also
received a three-level reduction for acceptance of
responsibility. These adjustments resulted in a total offense
level of 31. Presentence Report ¶¶ 25-29. His
criminal history category was VI. His advisory guideline
range was 188 to 235 months. The court sentenced Mann on July
19, 2010, to serve 235 months in prison, to be followed by a
five-year term of supervised release. See Minutes
(Doc. 42); Judgment (Doc. 42) at 2-3.
appealed the sentence. He challenged the district court's
finding that he had participated in a burglary and its
related offense-level enhancements under U.S.S.G.
§§ 2K2.1(b)(6), and 4B1.4(b)(3)(A), for possessing
a firearm in connection with another felony. See
Appellant Br. at 7-8 ¶¶ 4-5 (9th Cir. filed Nov. 9,
2010); Resp. Br. at 13-14 (9th Cir. filed Dec. 10, 2010). The
Ninth Circuit rejected his arguments. See Mem. at 3,
United States v. Mann, No. 10-30229 (9th Cir. June
27, 2011). Mann's conviction became final on September
26, 2011. See Gonzalez v. Thaler, __ U.S. __, 132
S.Ct. 641, 653-54 (2012).
United States Supreme Court held a provision of the Armed
Career Criminal Act (“ACCA”) unconstitutionally
vague on June 26, 2015, so 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). Johnson addressed only
one portion of the ACCA's definition of a violent felony:
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year . .
(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 deemed
unconstitutionally vague only the italicized language, the
“residual clause” of subsection (ii). Subsection
(i), commonly called the “force clause, ” and the
“enumerated” or “generic” offenses in
subsection (ii) remain valid. See Johnson, 135 S.Ct.
April 18, 2016, the Supreme Court held that the new rule
announced in Johnson applied not only to all cases
pending in district courts or on direct review when
Johnson was issued, but also applied to cases coming
before courts on collateral review. See Welch v. United
States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016). Mann
timely filed his § 2255 motion on May 12, 2016
See 28 U.S.C. § 2255(f)(3). He contends that
the Johnson decision means he was unconstitutionally
sentenced as an armed career criminal and he is entitled to
relief under 28 U.S.C. § 2255(a).
Motions to Dismiss
United States argues that “Mann's claims are
essentially Taylor/Shepard categorical analysis
claims, ” that is, claims concerning application of the
force clause or the enumerated offenses, rather than a claim
arising under Johnson and the residual clause.
See Answer (Doc. 65) at 4. As a result, it argues,
Mann's motion should be dismissed as untimely and as
procedurally defaulted. See Id. at 4, 5-7.
Threshold Question: What Is Mann's Claim?
United States's contention that Mann seeks relief under
authority other than Johnson confuses its procedural
defenses. The Court first must assess the exact nature of
Mann's claim. Taking Mann's claim at face value, he
asserts that he “does not qualify as an armed career
criminal . . . [i]n light of the Supreme Court's decision
in Johnson.” Mot. § 2255 (Doc. 58) at 2
party who challenges a duly entered criminal judgment under
§ 2255 has the burden of proof. See, e.g.,
Parke v. Raley, 506 U.S. 20, 29-30 (1992). To obtain
the benefit of Johnson, Mann must show that at least
one of his prior convictions qualified as a violent felony
only under the residual clause. He can make that showing only
by demonstrating that he does not qualify as an
armed career criminal under any other provision of
the ACCA. (See supra at 4).
addressed neither the force clause, nor the enumerated
offenses provision. See supra at 4. The United
States asserts that Mann's “claims as argued here
could have been raised before, ” in light of Mann's
discussion of non-Johnson related provisions of the
ACCA. Answer at 4. By before, the United States means either
on direct appeal, or possibly in an earlier-filed § 2255
motion. This statement would be true if Mann were required to
make a clear record to show the basis on which the court
deemed him to be an armed career criminal. He possessed no
such burden. A defendant who believes one subsection of a law
applies to him is not required to object to all the
provisions that he believes do not apply to him. See,
e.g., Mathis v. United States, __ U.S. __, 136
S.Ct. 2243, 2253-54 (2016); Descamps v. United
States, __ U.S. __, 133 S.Ct. 2276, 2289 (2013).
United States correctly notes that the record of the case
fails to show whether the court deemed Mann to be an armed
career criminal under the force clause, under one or more of
the enumerated offenses, or under the residual clause.
See, e.g., Answer at 24 (“All three . . .
convictions qualify . . . under the force clause or the
enumerated offense clause. Therefore, the residual clause
was never invoked”). If the sentencing court
had determined, for example, that Mann's conviction for
attempted aggravated assault constituted a violent felony
under the force clause, Johnson might not confer a
right to challenge the meaning of that conviction now. The
court entered no findings of this specificity at sentencing.
The United States sought to have Mann sentenced as an armed
career criminal. This desire required the United States to
submit to the sentencing court the ...