Edward Dembry v. United States
914 F.3d 1185
8th Cir.2019Background
- Dembry was convicted under 18 U.S.C. § 922(g)(1) and sentenced as an armed career criminal (ACCA) to 265 months based on prior Illinois robbery convictions; direct appeal affirmed.
- After Johnson (2015) invalidated the ACCA residual clause and Welch made that rule retroactive on collateral review, Dembry obtained permission to file a successive § 2255 claiming his ACCA sentence relied on the residual clause.
- The district court dismissed Dembry’s § 2255 petition, concluding his Illinois robbery convictions qualify as violent felonies under the ACCA force (elements) clause.
- The Government moved to remand after this appeal in light of Walker v. United States, which requires a movant to show by a preponderance that the residual clause actually led the sentencing court to apply the ACCA enhancement.
- Dembry conceded the sentencing record does not show reliance on the residual clause and argued Illinois robbery requires only minimal force insufficient under Johnson (2010).
- The court concluded recent precedent (including Stokeling and circuit decisions) shows Illinois robbery requires force sufficient to satisfy the force clause, so Dembry cannot prevail on the merits even if he cleared the § 2255 gatekeeping requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dembry may proceed with a successive § 2255 under 28 U.S.C. § 2255(h) (did sentencing rely on the residual clause?) | Dembry contends the ACCA enhancement relied on the residual clause; thus Johnson/Welch would permit relief. | Government argues Dembry cannot show by a preponderance that the sentencing court relied on the residual clause; Walker requires that showing. | Court did not decide gatekeeping because Dembry conceded the record shows no sentencing reliance and remand under Walker was unnecessary here. |
| Whether Illinois robbery is a violent felony under the ACCA force (elements) clause | Dembry argues Illinois robbery can be committed with only minimal force or resistance, which he says falls short of the ‘‘violent force’’ standard in Johnson (2010). | Government (and later precedent) argues Illinois robbery requires force sufficient to overcome resistance and thus satisfies the Johnson standard. | Court held Illinois robbery qualifies as a violent felony under the force clause (reinforced by Stokeling), so Dembry cannot obtain relief on the merits. |
| Whether this case should be remanded under Walker to let the district court determine if the residual clause was the basis for sentencing | Dembry sought adjudication; parties noted limited sentencing record. | Government moved to remand based on Walker’s clarification of the § 2255(h) standard. | Court denied remand as unnecessary because the sentencing record concession and the merits (force-clause viability) made remand pointless. |
Key Cases Cited
- United States v. Dembry, 535 F.3d 798 (8th Cir. 2008) (direct-appeal decision affirming conviction and ACCA sentence)
- Johnson v. United States, 576 U.S. 591 (2015) (holding ACCA residual clause unconstitutionally vague)
- Welch v. United States, 578 U.S. 120 (2016) (holding Johnson’s new rule is retroactive on collateral review)
- Walker v. United States, 900 F.3d 1012 (8th Cir. 2018) (requiring movant to show by a preponderance that sentencing relied on the residual clause before successive § 2255 relief)
- Johnson v. United States, 559 U.S. 133 (2010) (defining ‘‘physical force’’ in ACCA as ‘‘violent force’’)
- Stokeling v. United States, 139 S. Ct. 544 (2019) (clarifying force clause requires the amount of force necessary to overcome a victim’s resistance)
- United States v. Swopes, 886 F.3d 668 (8th Cir. 2018) (discussing realistic probability standard and robbery as violent felony)
- Shields v. United States, 885 F.3d 1020 (7th Cir. 2018) (holding Illinois robbery is a violent felony under the force clause)