United States v. Wilfong
16-6342
| 10th Cir. | Mar 17, 2017Background
- In 2011 a jury convicted Neil Wilfong of possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1); at sentencing the government sought an ACCA enhancement under 18 U.S.C. § 924(e).
- The probation office listed four predicate convictions: a federal § 844(e) conviction (telephone threat re: explosive), a state larceny-from-a-person, and two state assaults with a dangerous weapon.
- The district court found the § 844(e) conviction qualified as a violent felony under the ACCA elements clause and the larceny qualified under the residual clause; Wilfong was sentenced to 300 months.
- On direct appeal the Tenth Circuit affirmed, relying on the larceny as a residual-clause predicate (Wilfong conceded the two assaults were violent felonies), and the judgment became final in July 2013.
- After Johnson v. United States (2015) invalidated the ACCA residual clause and Welch made that retroactive, Wilfong filed a § 2255 motion challenging the larceny (timely under § 2255(f)(3)) and seeking to challenge the § 844(e) conviction and the assaults; the government conceded the larceny no longer counts but argued the other predicates still qualify and that challenges to them were time-barred.
- The district court denied relief, concluding Johnson did not affect the § 844(e) conviction because the court had found it a violent felony under the elements clause; Wilfong appealed seeking a certificate of appealability (COA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson provides a timeliness basis for collateral attack on § 844(e) predicate | Wilfong: Johnson allows § 2255(f)(3) tolling because recharacterization after Johnson made his sentence excessive | Gov: Johnson only invalidates the residual clause, not the elements clause; § 844(e) was treated under elements clause so Johnson doesn't apply; challenges are time-barred | Held: Johnson does not implicate the § 844(e) predicate because the conviction was found to qualify under the elements clause; § 2255 claim is time-barred and no COA granted |
| Whether § 844(e) conviction is a violent felony under ACCA | Wilfong: § 844(e) is not a violent felony (and appellate counsel ineffective for not challenging factual reliance) | Gov: § 844(e) qualifies as a violent felony under the elements clause; even without larceny predicate, three predicates remain | Held: Court accepted district court’s prior conclusion that § 844(e) qualifies under the elements clause; did not reach ineffective-assistance merits because timeliness fails |
| Whether appellate counsel was ineffective for not challenging sentencing reliance on PSR facts | Wilfong: appellate counsel should have argued sentencing court erred by using PSR facts to define § 844(e) elements | Gov: Any such claim is untimely and/or meritless because elements-clause characterization stands | Held: Court did not find the timeliness issue reasonably debatable and declined COA; ineffective-assistance claim not resolved on merits |
| Entitlement to Certificate of Appealability (COA) | Wilfong: reasonable jurists could debate timeliness and ACCA application | Gov: Timeliness is not reasonably debatable; Johnson inapplicable to elements clause findings | Held: COA denied; appeal dismissed |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (made Johnson retroactive on collateral review)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuance of a certificate of appealability)
- United States v. Wilfong, [citation="528 F. App'x 814"] (10th Cir. 2013) (direct appeal affirming conviction and relying on larceny as ACCA predicate)
- In re Encinias, 821 F.3d 1224 (10th Cir. 2016) (Tenth Circuit noting Johnson does not affect elements or enumerated clauses)