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United States v. Walking Eagle

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

November 15, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JACK DEON WALKING EAGLE, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY

          Brian Morris, United States District Court Judge.

         This case comes before the Court on Defendant Walking Eagle's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255.[1] He also moves for the appointment of new counsel to represent him. Walking Eagle is a federal prisoner proceeding pro se.

         Walking Eagle pled guilty in 2007 to one count of assault with intent to commit murder, a violation of 18 U.S.C. § 113(a)(1) (“Count 1”), and one count of using or carrying and discharging a firearm during and in relation to a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A) and (iii) (“Count 4”). The Court sentenced him on February 25, 2008, to a term of 151 months on Count 1 and a mandatory consecutive ten-year term on Count 4. See Plea Agreement (Doc. 17) at 3-4 ¶ 6; Judgment (Doc. 26) at 1-2. He 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 Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 1265 (2016) (holding that Johnson applies to cases already final when it was issued).

         The Supreme Court in Johnson 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 deemed 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. Federal sentencing courts no longer may enhance a defendant's sentence based on a prior conviction when that conviction qualifies as a “violent felony” only under the residual clause. Johnson, 135 U.S. at 2555-60, 2563. Johnson did not address either subsection (i) or the first line of subsection (ii) in § 924(e)(2)(B). Those provisions remain valid law.

         Walking Eagle challenges his conviction under 18 U.S.C. § 924(c)(1)(A), and (iii) for using or carrying a firearm during and in relation to a “crime of violence.” The definition of a “crime of violence” in § 924(c)(3) differs from the definition of a “violent felony” in § 924(e)(2)(B). It remains similar in most respects:

(3) For purposes of this subsection [§ 924(c)] the term “crime of violence” means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3).

         The Court will assume, for the sake of argument, that the residual clause in § 924(c)(3)(B) is unconstitutionally ...


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