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United States v. Gobert

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

November 16, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
KYLE JOEANIEL GOBERT, 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 Gobert's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Gobert is a federal prisoner proceeding with counsel. The Court conducted a hearing on Gobert's motion on November 1, 2017. (Doc. 63.) Counsel argued on behalf of Gobert and the United States.

         I. Background

         Gobert pled guilty in October 2014 to one count of using a firearm during and in relation to a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A). The “crime of violence” was identified as either assault resulting in serious bodily injury (“Count 1”), a violation of 18 U.S.C. § 113(a)(6), or assault with a dangerous weapon and with intent to do bodily harm (“Count 2”), a violation of 18 U.S.C. § 113(a)(3). The Court dismissed Counts 1 and 2 of the Indictment under a plea agreement. See Plea Agreement (Doc. 42) at 2 ¶ 3.

         Gobert did not plead guilty to either Count 1 or Count 2. In pleading guilty to Count 3, he merely admitted that he “committed the elements of a crime of violence prosecutable in federal court” and that his “use or carrying of the firearm was during and in relation to, or the possession was in furtherance of, the defendant's crime of violence.” Plea Agreement at 3 ¶ 4.

         The Court sentenced Gobert on February 10, 2015, to serve five years in prison to be followed by a three-year term of supervised release. See Minutes (Doc. 48); Judgment (Doc. 49) at 2-3. Gobert 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).

         II. 18 U.S.C. § 924(e)

         The 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 determined the residual clause to be vague to the point that it deprived defendants of fair notice of the consequences of their decisions and so loose that it invited arbitrary enforcement by sentencing judges. Johnson prohibited federal sentencing courts from enhancing a defendant's sentence based on a prior conviction when that conviction qualifies as a “violent felony” under the residual clause. See 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.

         III. 18 U.S.C. § 924(c)

         Gobert challenges his conviction under 18 U.S.C. § 924(c)(1)(A) for using a firearm during and in relation to a “crime of violence.” Section § 924(c)(3)'s definition of “crime of violence” differs from than the ...


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