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Grant v. United States

United States District Court, E.D. New York

July 5, 2017

DOUG GRANT, Petitioner,
UNITED STATES, Respondent.



         On July 23, 2008, Petitioner Doug Grant (“Petitioner”) pled guilty, pursuant to 18 U.S.C. § 922(g)(1), to possession of a firearm after having been convicted of a felony. On December 9, 2009, Petitioner was sentenced to 180 months of imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The imposed sentence was the minimum mandated by ACCA.

         On December 15, 2015, Petitioner, proceeding pro se, filed a motion to vacate his sentence under 28 U.S.C. § 2255 alleging that the District Court inappropriately relied on the residual clause of the ACCA in sentencing him. On February 22, 2016, Petitioner filed a motion to appoint counsel, which the Court granted on February 24, 2016. On March 3, 2016, the Court granted counsel leave to supplement Petitioner's pro se petition. On March 18, 2016, Petitioner, represented by counsel, filed the motion currently before this Court, pursuant to 28 U.S.C. § 2255 (“Petition, ” Dkt. Entry No. 49), seeking relief from his sentence on the ground that it violates the United States Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the ACCA was unconstitutionally vague. Petitioner argues that the Court should vacate his sentence under Johnson because it was based on this Court's finding that he was an armed career criminal under the ACCA's residual clause. The government opposed the Petition on April 22, 2016 (“Opposition, ” Dkt. Entry No. 51), and Petitioner replied on June 10, 2016 (“Reply, ” Dkt. Entry No. 53).

         For the reasons set forth below, the petition is granted. The Court finds Petitioner is not an armed career criminal. Accordingly, Petitioner's sentence is vacated and he is to be resentenced forthwith.


         A. Petitioner's Convictions, Guideline Range Calculation, and Sentencing

         On July 23, 2008, Petitioner pled guilty to possessing two guns after previously having been convicted of a felony. In the presentence report (“PSR”), the Probation Department (“Probation”) concluded that Petitioner had obtained three prior violent felony convictions: (1) a 1982 New York conviction for second degree assault, (2) a 1988 South Carolina conviction for second degree burglary, and (3) a 1989 South Carolina conviction for strong armed robbery.

         At the time of Petitioner's sentencing, the Court applied an ACCA enhancement due to the three prior violent felony convictions. As a result, Petitioner's total offense level increased to 30 from 21.[1] His Criminal History Category was determined to be V. As calculated in the PSR, without the ACCA enhancement, Petitioner's Sentence Guideline Range (“SGR”) was 70-87 months. With the ACCA enhancement, Petitioner's SGR was 151-188 months. ACCA requires the imposition of a mandatory minimum sentence of fifteen (15) years or 180 months. Thus, the effective SGR was 180-188 months. On December 9, 2009, this Court sentenced Petitioner to 180 months of imprisonment.

         B. The Johnson Cases

         Under the ACCA, a defendant found to have committed three prior “violent felon[ies]” or “serious drug offense[s], ” is subject to a mandatory minimum sentence of 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as follows:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . 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). Subsection (i) of the definition is known as the “force clause” and the latter half of subsection (ii) is known as the “residual clause.”

         In 2010, the Supreme Court defined “physical force” as set forth in the ACCA's force clause. Johnson v. United States, 559 U.S. 133 (2010) (“Johnson I”). The Court rejected the common law definition that force can be satisfied by even the slightest offensive touching. Id. at 137. Instead, the Court defined physical force under the ACCA as “violent force - that is, force capable of causing physical pain or injury to another person.” Id. at 140 (emphasis in original). The Court reviewed various definitions of violence to help clarify its definition, concluding that the word “violent” in § 924(e)(2)(B) connotes a substantial degree of force, and, thus, physical force in the ACCA indicated “strong physical force” and “force strong enough to constitute ‘power.'” Id. at 140-42. However, “the Court did not construe § 924(e)(2)(B)(i) to require that a particular quantum of force be employed or threatened to satisfy its physical force requirement.” United States v. Hill, 832 F.3d 135, 142 (2d Cir. 2016) (emphasis in original).

         In 2015, the Supreme Court struck the residual clause of the ACCA as unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”). The Court found that the residual clause had failed to provide “fair notice to defendants” and “invite[d] arbitrary enforcement by judges, ” because it both “leaves grave uncertainty about how to estimate the risk posed by a crime” and “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Johnson, 135 S.Ct. at 2557-58. The Court found this “double-layered uncertainty” problematic because it required courts “first to estimate the potential risk of physical injury posed by ‘a judicially imagined ‘ordinary case' of [the] crime' at issue, and then to consider how this risk of injury compared to the risk posed by the four enumerated crimes, which are themselves, the Court noted, ‘far from clear in respect to the degree of risk each poses.'” Hill, 832 F.3d at 145 (quoting Johnson 2015, 135 S.Ct. at 2557-58) (alterations in Hill).

         When read together, Johnson I and II indicate that a defendant can receive an ACCA enhancement only if his three prior felony convictions meet the “violent force” standard articulated in Johnson I or are ACCA enumerated offenses.


         Pursuant to 28 U.S.C. § 2255, a petitioner may challenge a sentence if “the sentence was imposed in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). A petition made under § 2255 is considered timely if: (i) it is filed within one year of the “the date on which the right asserted was initially recognized by the Supreme Court, ” (ii) “if that right has been newly recognized by the Supreme Court, ” and (iii) if the rule has been made “retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). To permit retroactive application on collateral review, the new rule articulated by the Supreme Court must “place[] certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or “require[] the observance of those procedures that . . . are implicit in the concept of ordered liberty.” Teague v. Lane, 489 U.S. 288, 307 (1989) (internal quotation marks omitted). In Welch v. United States, 136 S.Ct. 1257 ...

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