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United States v. Mann

United States District Court, D. Montana, Great Falls Division

May 9, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ERROL ARAM MANN, Defendant/Movant.


          Brian Morris United States District Court Judge.

         This 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).

         I. Background

         A felon 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.

         The 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 (Doc. 8).

         The 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).

         A 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.

         Mann 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).

         The 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 . . . 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 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. at 2563.

         On 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).

         II. Motions to Dismiss

         The 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.

         A. Threshold Question: What Is Mann's Claim?

         The 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 ¶ 4.

         The 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).

         Johnson 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).

         The 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 ...

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