United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
Morris United States District Court Judge
case comes before the Court on Defendant Lenihan's motion
to vacate, set aside, or correct the sentence under 28 U.S.C.
§ 2255. Lenihan is a federal prisoner proceeding with
counsel. The Court conducted a hearing on Lenihan's
motion on November 1, 2017. (Doc. 107.) Counsel argued on
behalf of Lenihan and the United States.
convicted Lenihan on April 12, 2006, of carjacking, a
violation of 18 U.S.C. §§ 2119(1) and (2) (Count
1); brandishing a firearm during and in relation to
carjacking, a violation of 18 U.S.C. § 924(c)(1)(A)
(Count 2); and possessing a firearm after having been
convicted of a misdemeanor crime of domestic violence, a
violation of 18 U.S.C. § 922(g)(9) (Count 3). Indictment
(Doc. 1 at 2); Verdict (Doc. 57 at 1-2); Jury Instrs. (Doc.
60 at 21.) The Court sentenced Lenihan on August 24, 2006, to
serve 96 months on Counts 1 and 3, to run concurrently, and a
consecutive term of 84 months on Count 2. Minutes (Doc. 70);
Judgment (Doc. 72 at 2-3.) The Ninth Circuit affirmed
Lenihan's conviction and sentence on May 30, 2007.
See Mem. (Doc. 91-1 at 3), United States v.
Lenihan, No. 06-30488 (9th Cir. May 30, 2007).
now 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
United States's procedural defenses, see Resp.
to § 2255 Mot. (Doc. 100 at 10-17), stand or fall with
the same question as the merits of the § 2255 motion-
i.e., whether Johnson applies to Lenihan's
motion. If Johnson does not support relief, the
United States does not need to rely on its procedural
defenses. The question is whether Johnson supports
relief for Lenihan.
18 U.S.C. § 924(e)
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
includes the following:
(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
Supreme Court determined the residual clause to be vague to
the extent 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 may no longer enhance a defendant's
sentence based on a prior conviction when that conviction
qualifies as a “violent felony” only 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.