United States District Court, D. Connecticut
MEMORANDUM AND ORDER
Michael P. Shea, U.S.D.J.
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”).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),  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
Background A. Original Sentencing and Direct
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.)
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. 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.
(PSR, ECF No. 25, at ¶ 21.)
4B1.4(a) of the United States Sentencing
Guidelines - 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.” 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. Johnson submitted no objections to the
portion of the PSR setting out his ACCA eligibility. (PSR
Addendums, ECF Nos. 25-1, 25-2.)
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
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. 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.
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.
Re-Sentencing, Appeal, and Initial Section 2255
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
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).
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.)
Second 2255 Petition
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
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 ...