United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters, United States District Court Judge
matter comes before the Court on Defendant/Movant Sam's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Sam seeks relief under Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015), which
was made retroactive to final judgments by Welch v.
United States, __ U.S. __, 136 S.Ct. 1257(2016).
April 22, 2005, Sam was indicted in a seven-count indictment
for violations of 18 U.S.C. §§1951, 924(c), 9220)
and 922(g)(1). See Plea Agreement (Doc. 33) at 1-2
agreed to plead guilty to Counts 1, 2, and 3. Count 1 charged
Sam with conspiring to obstruct or to attempt to obstruct
interstate commerce by robbery of two casinos in violation of
18 U.S.C. § 1951. Count 2 charged him with
"unlawfully tak[ing] and obtain[ing] personal
property" of the Winner's Circle casino
"against its will by means of actual and threatened
force, violence and fear of injury, immediate and future,
" to business property. Count 3 charged Sam with using
or carrying a firearm during and in relation to a crime of
violence, "to wit, a violation of 18 U.S.C. § 1951
as charged in Count II" of the indictment. See
Id. at 2-3 ¶ 6A-C.
plea agreement recited the following elements:
to Violate the Hobbs Act 18 U.S.C. § 1951
First, beginning on or about July 31, 2004, and ending on or
about August 1, 2004, there was an agreement between two or
more persons to commit robbery;
Second, the defendant became a member of the conspiracy
knowing of at least one of its objects and intending to help
Act 18 U.S.C. § 1951
First, that defendant induced persons at the Winner's
Circle to part with property;
Second, that defendant did so knowingly and deliberately by
Third, that in doing so, interstate commerce was obstructed,
delayed or otherwise affected.
of Firearm During a Crime of Violence, 18 U.S.C. §
First, the defendant committed the crime of interference with
commerce by threats or violence as charged in Count II of the
Second, the defendant knowingly used a firearm; and
Third, the defendant knowingly used a firearm during and in
relation to the crime.
Plea Agreement (Doc. 33) at 4-5 ¶ 8; see also
Offer of Proof (Doc. 50) at 2-3.
exchange for Sam's guilty pleas to Counts 1, 2, and 3,
the United States agreed to dismiss Counts 4, 5, 8, and 9.
Id. at 2 ¶ 5. (Sam was not charged in Counts 6
and 7.) Sam pled guilty. See Minutes (Doc. 46).
March 8, 2006, Sam was sentenced to serve 137 months on
Counts 1 and 2, concurrently, and a consecutive seven-year
term on Count 3, for a total prison term of 221 months.
See Minutes (Doc. 58); Judgment (Doc. 59) at 2.
appealed a sentencing guideline issue. See United States
v. Sam, No. 06-30186 (9th Cir. Apr. 18, 2007). His
conviction became final on July 17, 2007. See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012).
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).
18 U.S.C. § 924(e)
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015) (('Johnson" or "Johnson
II"), the Supreme Court considered once again 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 ...