United States v. Kraus

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          SUSAN P. WATTERS, UNITED STATES DISTRICT COURT.

         This matter comes before the Court on Defendant/Movant Jacob Kraus's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Kraus 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).

         I. Procedural Background

         On January 17, 2008, Kraus was indicted on one count of conspiracy to violate the Hobbs Act, a violation of 18 U.S.C. § 1951 (Count 1); two counts of Hobbs Act robbery, violations of 18 U.S.C. § 1951 (Counts 2 and 4); two counts of using or carrying a firearm during and in relation to the robberies alleged in Counts 2 and 4, violations of 18 U.S.C. § 924(c)(1) (Counts 3 and 5); one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 8); and one count of possessing a stolen firearm, a violation of 18 U.S.C. § 922(j) (Count 9). Kraus was not named in Counts 6 or 7. Aiding and abetting was also charged in Counts 2 through 5. See Indictment (Doc. 1) at 1-6.

         The parties reached a plea agreement. Kraus agreed to plead guilty to Counts 4 and 5-one of the Hobbs Act robberies and one of the § 924(c) charges.

         The plea agreement recited the following elements:

18 USC § 1951-Knowingly Interfere with Interstate Commerce By Robbery (Hobbs Act Robbery) (Count IV)

First, that defendants induced persons at the Thriftway Store (Butte, MT) and Town Pump Food Store (Columbus, MT) to part with property; Second, that defendants did so knowingly and deliberately by robbery; and Third, that in doing so, interstate commerce was obstructed, delayed or otherwise affected.

18 USC § 924(c)-Use of a Firearm in Federal Crime of Violence (Counts [sic] V)

First, the defendant committed the crime of Interference with commerce by threats or violence as charged in Count IV of the indictment;

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. 52) at 5 ¶ 8.

         In exchange for Kraus's guilty plea to Counts 4 and 5, the United States agreed to dismiss Counts 1, 2, 3, 8, and 9. Id. at 2 ¶ 5. Kraus pled guilty. See Minutes (Doc. 59).

         On March 12, 2009, Kraus was sentenced to serve 37 months on Count 4 and 84 months on Count 5, consecutive, for a total prison term of 121 months. See Minutes (Doc. 79); Judgment (Doc. 81) at 2. Kraus did not appeal. His conviction became final on March 26, 2009. Gonzalez v. Thaler, U.S., 132 S.Ct. 641, 653-54(2012).

         Kraus 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 was issued).

         II. Legal Background

         A. 18 U.S.C. § 924(e)

         In Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) ("Johnson" or "Johnson IF), 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 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 found 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. Therefore, the decision held, 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 § ...