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Johnson v. United States

United States District Court, D. Connecticut

December 19, 2016

Keith Johnson, Petitioner,
v.
United States of America, Respondent.

          MEMORANDUM AND ORDER

          Michael P. Shea, U.S.D.J.

         Keith Johnson, a federal prisoner, petitions this Court under 28 U.S.C. § 2255 to vacate his sentence, which was imposed as a result of his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On October 8, 2008, Judge Ellen Bree Burns sentenced Johnson to 240 months imprisonment after finding that Johnson was eligible for the enhancement set forth in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (the “ACCA”).[1]That statute imposes a mandatory minimum of 15 years imprisonment if an individual convicted under 18 U.S.C. § 922(g) “has three previous convictions by any court . . . for a violent felony.” In light of two recent Supreme Court decisions - namely, Johnson v. United States, 135 S.Ct. 2551 (2015), [2] and Welch v. United States, 136 S.Ct. 1257 (2016) - Johnson asserts that this Court must vacate his sentence, conduct a resentencing, and release him, because one of the three predicate offenses underlying his ACCA sentence is no longer a “violent felony” and, as a result, he has served more than the maximum sentence authorized by law. I agree, and conclude that Johnson is entitled to a resentencing. I also find that Johnson has not been convicted of three violent felonies for purposes of the ACCA. As a result, I amend the judgment in USA v. Johnson, 3:03-cr-215 (MPS), and impose a sentence of 120 months of imprisonment and 3 years of supervised release, the maximum sentence authorized by the statute governing his conviction. Because he has served more than that amount of prison time for this conviction, Johnson is entitled to immediate release.

         I. Background A. Original Sentencing and Direct Appeal

         On July 9, 2004, a jury convicted Johnson of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (No. 3:03-cr-215 (“Crim. Dkt.”), ECF No. 47.)

         As of that date, Johnson had been convicted of several felonies under Connecticut law, including but not limited to (1) conspiracy to commit robbery in the first degree in 1987, (2) robbery in the third degree in 1988, (3) robbery in the first degree, conspiracy to commit robbery in the first degree, and assault in the second degree in 1990, (4) attempt to commit robbery in the first degree in 1991, and (5) rioting in a correctional facility in 1994.[3] In anticipation of sentencing, the United States Probation Office filed a pre-sentence report (“PSR”) indicating that Johnson was eligible for an ACCA enhancement. Paragraph 21 of the PSR stated the following:

In accordance with § 4B1.4 [of the United States Sentencing Guidelines], the defendant is determined to be an Armed Career Criminal as he has at least three prior violent felonies . . . with disposition dates of May 3, 1994; November 9, 1990; and July 28, 1988.[4]

(PSR, ECF No. 25, at ¶ 21.)

         Section 4B1.4(a) of the United States Sentencing Guidelines[5] - the section referenced by the PSR - states, “[a] defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.” Section 924(e), the ACCA, sets forth a sentence enhancement for defendants “who violate[] section 922(g) . . . and ha[ve] three previous convictions . . . for a violent felony . . . committed on occasions different from one another.” It defines a “violent felony” as an offense that is punishable by at least a year of imprisonment and that either (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” or (2) “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”[6] 18 U.S.C. § 924(e)(2)(B). The ACCA imposes a mandatory minimum sentence of fifteen years imprisonment. By finding that Johnson was an armed career criminal under Section 4B1.1, the author of the PSR impliedly found that Johnson was eligible for the ACCA's mandatory minimum.[7] Johnson submitted no objections to the portion of the PSR setting out his ACCA eligibility. (PSR Addendums, ECF Nos. 25-1, 25-2.)

         Judge Burns held a sentencing hearing on September 28, 2004. During the hearing, Johnson did not object to his ACCA eligibility. His counsel raised an objection to a one-point offense level enhancement that was recommended in Paragraph 21 of the PSR, but that objection did not concern Johnson's eligibility under the ACCA:

THE COURT: Mr. Johnson, have you read your presentencing report, sir?
THE DEFENDANT: Yes, ma'am.
THE COURT: Is there any correction you think needs to be made in that report?
THE DEFENDANT: It's just minor things.
THE COURT: Have you talked to Mr. Weinberger [Johnson's counsel] about those matters?
THE DEFENDANT: Yes, ma'am.
MR. WEINBERGER: Nothing of significance or consequence . . . . we have no corrections to make to the factual statements in the revised presentence report. There is one objection I feel I'm obliged to make. . . . [J]ust for the record, I wanted to object to the increase from the base offense level of 33 to the adjusted offense level of 34.
And I believe -- paragraph 21 [of the PSR], actually, doesn't even mention the base offense level. The base offense level is 33.[8] It just goes directly to the adjusted offense level of 34, which is a one-level increase.
THE COURT: Because of the robbery?
MR. WEINBERGER: Correct. And as I say, I understand that the current state of the law says it's up to your Honor to decide by a preponderance of the evidence that the firearm was used in connection with a robbery, and I'm not going to belabor that point.

(2004 Sentencing Tr., ECF No. 22-1, at 3-4.) In fact, the 2004 sentencing transcript includes no discussion of Johnson's eligibility under the ACCA. In its brief in this Court, the government suggests that Judge Burns “adopted the factual statements set forth in the [PSR]” (Resp't Br., ECF No. 14, at 2), but provides no citation to the record in support of this assertion. The discussions throughout the sentencing proceeding, however, do suggest that Judge Burns agreed that Johnson fell under the ACCA. (See, e.g., id. at 27 (Judge Burns addressing Johnson: “You are now 40-years-old. And in the best of circumstances, you're going to be at least 60 when you get out.”).) Nonetheless, nowhere in the record does Judge Burns indicate which of Johnson's prior convictions served as his ACCA predicate offenses, let alone why any of them did.

         Judge Burns sentenced Johnson to 262 months of imprisonment. Johnson appealed, attacking his conviction and sentence. With respect to his sentence, Johnson argued - for the first time - that his 1994 rioting conviction was not a violent felony under the ACCA's residual clause. United States v. Johnson, 265 Fed. App'x 8, 11 (2d Cir. Feb. 19, 2008) (summary order) (noting that Johnson did not raise this issue at sentencing). The Second Circuit held that Judge Burns did not commit plain error in finding that the rioting conviction fell within the ACCA's residual clause, i.e., the language of the statute classifying as “violent felonies” those felonies that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). In light of the Supreme Court's intervening decision in United States v. Booker, 543 U.S. 220 (2005), however, the Second Circuit vacated Johnson's sentence and remanded the case for re-sentencing.

         B. Re-Sentencing, Appeal, and Initial Section 2255 Petition

         In his sentencing memorandum submitted in anticipation of the re-sentencing hearing - which Judge Burns held on October 8, 2008 - Johnson argued that his rioting conviction was not a violent felony. (Crim. Dkt., ECF No. 68, at 9-14.) At the hearing, when Johnson's counsel mentioned his objection to Johnson's ACCA eligibility, Judge Burns stated, “To me, sir, it's been confirmed by the Second Circuit that that's appropriate. I don't see any reason to challenge it.” (2008 Sentencing Tr., ECF No. 22-2, at 10-11.) Judge Burns sentenced Johnson to 240 months incarceration.

         Johnson appealed, arguing that his rioting conviction was not a violent felony. The Second Circuit disagreed, finding that it qualified under the residual clause. United States v. Johnson, 616 F.3d 85, 94 (2d Cir. 2010) (“[W]e conclude that the conduct encompassed by the elements of [rioting at a correctional institution], in the ordinary case, presents a serious potential risk of injury to another.”), abrogated by Johnson (U.S. 2015). In doing so, the Second Circuit identified the 1990 and 1988 robbery convictions as the only other predicate offenses supporting Johnson's ACCA enhancement: “[t]here is no dispute that Johnson's remaining predicate offenses, two instances of robbery, are violent felonies under the ACCA.” Id. at 87 n.2 (emphasis added); see also note 4, supra. The Supreme Court denied Johnson's petition for writ certiorari over a dissent by Justice Scalia. Johnson v. United States, 131 S.Ct. 2858 (2011).

         On August 26, 2013, Johnson filed a pro se Section 2255 petition to vacate his sentence in light of the Supreme Court's decisions in Alleyne v. United States, 133 S.Ct. 2151 (2013), and Descamps v. United States, 133 S.Ct. 2276 (2013). On April 11, 2014, the district court denied Johnson's petition and refused to issue a certificate of appealability. (No. 3:13-cv-01242 (EBB), ECF No. 10.)

         C. Second 2255 Petition

         On June 26, 2015, the Supreme Court issued its decision in Johnson (U.S. 2015), holding that the residual clause of the ACCA was unconstitutionally vague. Soon after, Keith Johnson's counsel filed a motion requesting that this Court re-appoint him to represent Johnson. The Court granted that motion. (Crim. Dkt. ECF No. 82.) Because he had already filed a Section 2255 petition challenging his sentence, Johnson sought leave from the Second Circuit to file a successive Section 2255 petition in this Court. See 28 U.S.C. § 2255(h)(2) (“A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeal to contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”). The Second Circuit issued a mandate granting Johnson leave to file a successive Section 2255 petition in light of Johnson (U.S. 2015) on January 6, 2016. The mandate directed this Court to “address, as a preliminary inquiry under § 2244(b)(4), whether the Supreme Court's decision in Johnson [(U.S. 2015)] announced a new rule of constitutional law made retroactive to cases on collateral review, thus permitting Petitioner's new § 2255 claim to proceed.” (Crim. Dkt. ECF No. 87.) On January 15, 2016, Johnson filed this Section 2255 petition in this Court.

         II. Discussion

         On April 18, 2016, the Supreme Court issued its decision in Welch, holding that Johnson (U.S. 2015) “announced a substantive rule that has retroactive effect in cases on collateral review.” 136 S.Ct. at 1268. Welch answers the “preliminary inquiry” identified by the Second Circuit - whether Johnson (U.S. 2015) applies retroactively to Petitioner Johnson's sentence - with ...


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