204 F.Supp.3d 1069
W.D. Mo.2016Background
- Marcel Small pled guilty in 2005 to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced under the ACCA to 188 months based on three prior convictions: two second-degree burglaries and one second-degree robbery.
- The ACCA imposes a 15-year mandatory minimum if the defendant has three prior "violent felony" convictions; that term includes generic burglary and crimes that have as an element the use, attempted use, or threatened use of physical force.
- Johnson v. United States (2015) struck down the ACCA residual clause; Small filed a timely § 2255 motion seeking resentencing under Johnson.
- The PSR had treated Missouri second-degree burglary (including burglary of an inhabitable structure) and Missouri second-degree robbery as ACCA predicates.
- The district court applied the categorical approach (per Mathis/Taylor) to determine whether the Missouri offenses match the elements of the ACCA-listed offenses and concluded Missouri second-degree burglary (as to inhabitable structures) and second-degree robbery are not ACCA predicates.
Issues
| Issue | Small's Argument | United States' Argument | Held |
|---|---|---|---|
| Whether Missouri second-degree burglary of an "inhabitable structure" is generic burglary for ACCA | The burglary conviction does not match generic burglary because Missouri law covers non-buildings | The burglary conviction still counts as ACCA "burglary" | Not a qualifying ACCA burglary – statute lists alternative means broader than generic burglary |
| Whether Missouri second-degree robbery qualifies as a "violent felony" (force element) for ACCA | Missouri robbery does not require "violent force" as defined by the Supreme Court | The robbery conviction should qualify as a force crime under ACCA | Not a qualifying ACCA violent felony – Missouri robbery can be committed with less-than-violent force |
| Whether Johnson applies retroactively to Small's § 2255 motion | Johnson applies retroactively under Welch | N/A | Johnson is retroactive; Small's motion is timely and cognizable |
| Remedy — resentencing required? | Request resentencing without ACCA enhancement | Government opposed, arguing other ACCA grounds remain | Court granted § 2255 relief and will schedule resentencing |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical approach; distinguish elements from means; state statutes that list alternative means may be overbroad)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause unconstitutional)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson held to be retroactive on collateral review)
- Taylor v. United States, 495 U.S. 575 (1990) (definition of generic burglary and categorical approach)
- United States v. Schaffer, 818 F.3d 796 (8th Cir. 2016) (defining "physical force" as violent force in ACCA context)