United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS, UNITED STATES DISTRICT COURT.
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
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.
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.
plea agreement recited the following elements:
18 USC § 1951-Knowingly Interfere with
Interstate Commerce By Robbery (Hobbs Act Robbery) (Count
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
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
Second, the defendant knowingly used a firearm; and
Third, the defendant knowingly used a firearm during and in
relation to the crime.
Agreement (Doc. 52) at 5 ¶ 8.
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).
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).
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
18 U.S.C. § 924(e)
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[.]
U.S.C. § 924(e)(2)(B). Johnson discussed only
the italicized clause, commonly called 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.
did not address either subsection (i) or the first line of
subsection (ii) in § ...