Deshawn Fletcher v. United States
2017 U.S. App. LEXIS 9174
| 8th Cir. | 2017Background
- Fletcher pleaded guilty in 2012 to being a felon in possession of a firearm and was sentenced under the Armed Career Criminal Act (ACCA) based on three prior convictions: a drug conviction and two Nebraska felony convictions for making terroristic threats (one juvenile, one adult).
- His sentence became final in August 2013; he filed a § 2255 motion after Johnson invalidated the ACCA residual clause (filed November 2015 / Welch retroactivity acknowledged).
- The district court denied relief, concluding Fletcher’s terroristic-threats convictions qualify as ACCA violent felonies under the ACCA force clause, not relying on the residual clause.
- Fletcher argued (1) his juvenile terroristic-threats conviction did not involve the use or carrying of a firearm/knife/destructive device and (2) under Descamps the court could not look beyond the statutory elements to determine whether the Nebraska statute requires physical force.
- The panel held the juvenile-use-or-carry claim was procedurally defaulted (not raised on direct appeal and Descamps was decided before his judgment became final) and analyzed whether Nebraska’s terroristic-threats statute categorically qualifies under the ACCA force clause.
- The court concluded the Nebraska statute, as interpreted by the Nebraska Supreme Court, requires a “crime of violence” that involves injury/abuse through use of physical force against a person, so the convictions categorically qualify under the ACCA force clause; thus Johnson afforded no relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fletcher’s juvenile terroristic-threats conviction involved use/carrying of a firearm, knife, or destructive device (preliminary ACCA requirement for juvenile offenses) | Fletcher: Descamps prevents examining facts beyond statutory elements; claim that juvenile conviction did not involve use/carrying | Government: Did not raise procedural-default below; argued convictions qualify under force clause (implicitly that juvenile requirement satisfied or irrelevant) | Court: Claim is procedurally defaulted (Descamps decided before judgment final; Fletcher failed to raise on direct appeal; no cause/prejudice or actual innocence shown) |
| Whether Nebraska terroristic-threats convictions qualify as ACCA violent felonies after Johnson (i.e., under the force clause) | Fletcher: Statute can reach threats to property (e.g., arson) and thus might not have an element of threatened physical force against a person | Government: Nebraska law, as interpreted by its Supreme Court, defines “crime of violence” to entail injury/abuse through physical force against a person; no realistic probability Nebraska would apply statute to threats to property alone | Court: Nebraska statute categorically qualifies under ACCA force clause; no realistic probability it covers only property threats; convictions are violent felonies and Johnson does not require resentencing |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating the ACCA residual clause)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits use of the modified categorical approach; focuses on statutory elements)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (categorical approach requires a realistic probability the state would apply statute in nongeneric way)
- United States v. Schaffer, 818 F.3d 796 (8th Cir. 2016) (standard of review: de novo for ACCA violent-felony determinations)
- United States v. Sanchez-Martinez, 633 F.3d 658 (8th Cir. 2011) (Minnesota terroristic-threats statute did not qualify under force clause due to broader state definition of "crime of violence")
- United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (indirect harms can constitute use of force under ACCA analysis)
- United States v. Clinkscale, 559 F.3d 815 (8th Cir. 2009) (addressing Minnesota terroristic-threats statute; distinguished here due to Nebraska’s different definition of "crime of violence")