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United States v. Acton

United States District Court, D. Montana, Missoula Division

December 7, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
STEVEN ALEXANDER ACTON, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Dana L. Christensen, United States District Court Chief Judge

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

         Acton pled guilty to two offenses, one charge alleging violation of 18 U.S.C. § 924(c) (Count 2), and a predicate "crime of violence" (Count 1).

         Due to what appears to be a typographical error, the Indictment failed to charge an offense in Count 2. See Indictment (Doc. 1) at 2-3. In Count 1, the indictment alleged Acton "used actual and threatened force against G.G., to unlawfully take from the owner, against said owner's will, approximately ten firearms, in the presence of G.G. ... in violation of 18 U.S.C. §§ 1951(a) and 2." Indictment at 2.

         On August 8, 2012, Acton pled guilty to both Count 1 and Count 2. See Minutes (Doc. 60). On November 8, 2012, Acton was sentenced to serve 18 months on Count 1 and a consecutive 84 months on Count 2 for a total prison term of 102 months. See Minutes (Doc. 74); Judgment (Doc. 77) at 2. Acton did not appeal. His conviction became final on November 23, 2012. Gonzalez v. Thaler, 565 U.S. 134, 150(2012).

         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 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 § 924(e)(2)(B). Those provisions remain valid.

         B. 18 U.S.C. § 924(c)(3)

         Acton challenges his conviction not under the ACCA but under 18 U.S.C. § 924(c)(1)(A) and (ii) for using or carrying and brandishing a firearm during and in relation to a "crime of violence." The definition of a "crime of violence" in § 924(c)(3) is similar to the definition of a "violent felony" in § 924(e)(2)(B):

(3) For purposes of this subsection [§ 924(c)] the term "crime of violence" means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3).

         Acton argues that a Hobbs Act robbery is not a "crime of violence" under § 924(c)(3)(A) and that § 924(c)(3)(B) is unconstitutionally vague in light of Johnson. The United States asserts that robbery meets the requirements of § 924(c)(3)(A) and that Johnson does not apply to § 924(c)(3)(B).

         The Court will assume, for the sake of argument, that the residual clause in § 924(c)(3)(2?) is unconstitutionally vague for the reasons explained in Johnson. See Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (holding the residual clause of 18 U.S.C. § 16(b), which is virtually identical to § 924(c)(3)(B), unconstitutionally vague under Johnson), cert, granted, No. 15-1498 (U.S. Sept. 29, 2016).[1]But, even so, Acton's conviction and sentence under § 924(c) would still be valid if the "crime of violence" he committed "ha[d] as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(4).

         III. Analysis

         A. Acton's Predicate ...


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