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 Baker's
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. He seeks relief under Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015).
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1),
mandates a fifteen-year minimum sentence and authorizes a
maximum sentence of life in prison if a defendant convicted
of being a felon in possession of a firearm has three
previous convictions for a serious drug offense or a violent
felony. If the defendant does not have three qualifying
convictions, the ACCA does not apply, and the defendant faces
a maximum sentence of ten years in prison. See 18
U.S.C. § 924(a)(2).
jury indicted Baker on February 6, 2013, on one count of
interfering with commerce by threats or violence in violation
of 18 U.S.C. § 1951(a) (Count 1); one count of
possessing and brandishing a firearm in furtherance of a
crime of violence in violation of 18 U.S.C. §
924(c)(1)(A) and (ii) (Count 2); and one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) (Count 3).
parties reached a plea agreement. As relevant here, Baker
agreed to plead guilty to Count 3, being a felon in
possession of a firearm. The United States agreed to dismiss
Counts 1 and 2 and to seek a three-level reduction in
Baker's offense level for his acceptance of
responsibility. Plea Agreement (Doc. 24) at 2-3 ¶ 2, 7
¶ 6. Baker specifically admitted he had “three or
more previous convictions for a violent felony or a serious
drug offense and qualifies as an Armed Career Criminal under
18 U.S.C. § 924(e).” Id. at 3-4 ¶ 4.
Baker entered a guilty plea to Count 3 on May 16, 2013.
Minutes (Doc. 25).
presentence report was prepared. Baker's base offense
level under U.S.S.G. § 2K2.1(a)(2) was 24. He received
an upward adjustment for obstruction of justice, Presentence
Report ¶¶ 18, 25, and a seven-level increase due to
the operation of the Guidelines' armed career criminal
provision, U.S.S.G. § 4B1.4. He received a three-level
reduction for acceptance of responsibility. His total offense
level of 30. His criminal history category was VI. His
advisory guideline range was 180 to 210 months. The Court
sentenced Baker to serve 210 months in prison, to be followed
by a five-year term of supervised release. Minutes (Doc.
Judgment (Doc. 31) at 2-3. Baker did not appeal. His
conviction became final on August 30, 2013.
26, 2015, the United States Supreme Court held that a certain
phrase in the Armed Career Criminal Act was so vague 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).
Baker timely filed his § 2255 motion on June 2, 2016, in
which he claimed an entitlement to relief under the
Court's decision in Johnson. See Welch v.
United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016)
(making Johnson retroactively applicable to cases on
collateral review); 28 U.S.C. § 2255(f)(3).
Motion to Dismiss
United States seeks to dismiss Baker's motion as untimely
and for lack of jurisdiction. See Answer (Doc. 36)
at 1-3, 12. An untimely claim does not deprive the Court of
jurisdiction. See, e.g., McQuiggin v.
Perkins, __ U.S. __, 133 S.Ct. 1924, 1928 (2013).
Further, a Johnson claim, regardless of its merits,
proves timely if filed within one year of Johnson.
See 28 U.S.C. § 2255(f)(3); Dodd v. United
States, 545 U.S. 353, 357 (2005). Baker timely filed his
motion. The motion to dismiss is denied.
ACCA applies to defendants who have “three previous
convictions by any court . . . for a violent felony or a
serious drug offense, or both.” 18 U.S.C. §
924(e)(1). Baker concedes that his previous drug offense
qualifies as a serious drug conviction. Two more convictions,
both incurred under Montana law, remain at issue in the
§ 2255 motion: one for robbery in violation of Mont.
Code Ann. § 45-5-401 (2005), and one for assault with a
weapon in violation of Mont. Code Ann. § 45-5-213(1)
(2005). See Presentence Report ¶¶ 27,
54-55. The ACCA does not apply to Baker if either of those
convictions fails to qualify as a violent felony.
Johnson, the ACCA, in effect, 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, [or] involves use of
18 U.S.C. § 924(e)(2)(B). Baker's sentence under the
ACCA remains proper if each of his Montana convictions meets
the elements of the “force clause” in §
924(e)(2)(B)(i), or is equivalent to one or more of the
“listed offenses” in (B)(ii). The parties agree
that both robbery and assault with a weapon fail to meet the
elements of any of the offenses listed in subsection (ii).
Only the force clause remains at issue here.
Categorical Comparison of State Elements to Federal
apply the ACCA, federal sentencing courts must consider
convictions entered in more than 50 jurisdictions, containing
widely varying elements, to determine whether an individual
defendant's criminal history meets the ACCA's terms.
The Supreme Court has applied the “categorical
analysis” to decide the issue. The
“categorical” method focuses exclusively on the
elements of a predicate conviction, as defined by the
jurisdiction of conviction, and compares those element to the
elements of the ACCA, as defined by federal law. See
Taylor v. United States, 495 U.S. 575, 590-92 (1990).
The facts of Baker's convictions for robbery and for
assault with a weapon prove “quite irrelevant.”
Moncrieffe v. Holder, __ U.S. __, 133 S.Ct. 1678,
1684 (2013) (internal quotation marks omitted).
comparing Baker's prior convictions with the ACCA
elements, the Court may consider only “what the state
conviction necessarily involved, ” as if every
conviction “‘rested upon nothing more than the
least of the acts' criminalized” by the state
statute. Id. (quoting Johnson I, 559 U.S.
at 137). The federal elements must be met in every realistic
instance of conviction under the state statute. For this
reason, case law applying the state statute to specific acts
or defining the issues a jury must decide can be useful in
determining whether the state statute meets the elements of
the federal definition of a “violent felony.”
See, e.g., Gonzales v. Duenas-Alvarez, 549
U.S. 183, 193 (2007); Ortega-Mendez v. Gonzales, 450
F.3d 1010, 1016 (9th Cir. 2006).
of the label that the state uses to describe the elements of
a predicate conviction, a federal court must consider whether
the full range of conduct captured by the state's
elements falls within the range of conduct captured by the
federal elements. The state statute need not expressly
contain use of force as an element, so long as a conviction
under the state statute necessarily will include proof beyond
reasonable doubt that the defendant used or attempted to
threaten to use physical force against the person of another.
even if the state statute expressly has “use of
physical force” as an element, it will not meet the
requirements of the ACCA's force clause if the state
defines “physical force” in the common-law sense
that includes “even the slightest offensive
touching.” See Johnson I, 559 U.S. at 138-42;
see also, e.g., United States v.
Garcia-Jimenez, 807 F.3d 1079, 1087-89 (9th Cir. 2015)
(holding that New Jersey's definition of
“attempt” encompasses more conduct than federal
“attempt, ” so that conviction for attempted
aggravated assault failed to qualify as a “crime of
violence” under commentary to U.S.S.G. § 2L1.2);
Ortega-Mendez, 450 F.3d at 1016-18; United
States v. Bonat, 106 F.3d 1472, 1475-76 (9th Cir. 1997).
The Force ...