United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
December 1, 2009, the Court sentenced defendant to 327 months
in prison. On May 6, 2016, the Tenth Circuit granted
defendant leave to file a second or successive motion under
28 U.S.C. § 2255 based on Johnson v. United
States, 135 S.Ct. 2551 (2015). See Order (Doc.
#143). This matter is before the Court on defendant's
Motion To Vacate Sentence (Doc. #145) filed May 6,
2016. For reasons stated below, the Court sustains
defendant's motion and resentences defendant to 120
months in prison.
November 5, 2008, a grand jury charged Darron L. Eskridge
with one count of possessing a firearm after having been
convicted of three or more violent felonies, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e)(1).
See Indictment (Doc. #1). On August 27, 2009, a jury
found defendant guilty. The Court found that under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B), defendant had six prior convictions for violent
felonies. Defendant's total offense level was 34, with a
criminal history category VI, resulting in a Guidelines range
of 262 to 327 months in prison. On December 1, 2009, the
Court sentenced defendant to 327 months in
prison. Defendant appealed. On April 13, 2011, the
Tenth Circuit affirmed his conviction and sentence. See
Order And Judgment (Doc. #133).
April 16, 2012, defendant filed a motion to vacate sentence
under 28 U.S.C. § 2255. See Motion Under 28 U.S.C.
§ 2255 To Vacate, Set Aside, Or Correct Sentence By A
Person In Federal Custody (Doc. #134). Defendant
asserted that his conviction should be vacated because his
counsel provided ineffective assistance. Specifically, he
argued that (1) before trial, counsel advised defendant not
to accept a 15-year plea deal, (2) at trial, he did not call
co-defendant John Roland as a witness, (3) at sentencing, he
did not challenge the enhancement of his sentence under the
ACCA and (4) on appeal, he did not challenge the jury's
finding that defendant was in constructive possession of the
firearm. On December 12, 2013, the Court overruled
defendant's motion. See Memorandum And Order
6, 2016, the Tenth Circuit granted defendant leave to file a
second or successive motion under 28 U.S.C. § 2255 based
on Johnson v. United States, 135 S.Ct. 2551 (2015).
See Order (Doc. #143). On May 6, 2016, defendant
filed a pro se motion to vacate his sentence under 28 U.S.C.
§ 2255. See Motion To Vacate Sentence (Doc.
#145). Defendant asserts that under Johnson, the
Court should vacate his enhanced sentence under the ACCA and
resentence him to 120 months in prison, the statutory maximum
for an offense under 18 U.S.C. § 922(g)(1).
standard of review of Section 2255 petitions is quite
stringent. The Court presumes that the proceedings which led
to defendant's conviction were correct. See Klein v.
United States, 880 F.2d 250, 253 (10th Cir. 1989).
the ACCA, the Court must impose a sentence of at least 15
years in prison if a defendant has “three previous
convictions for a violent felony or a serious drug offense,
or both, committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). The ACCA defines
a “violent felony” as a crime punishable by a
term of imprisonment exceeding one year that (1) “has
as an element the use, attempted use, or threatened use of
physical force against the person of another” (the
elements clause), (2) “is burglary, arson, . . .
extortion, or involves use of explosives” (the
enumerated-offenses clause) or (3) “otherwise involves
conduct that presents a serious potential risk of physical
injury to another” (the residual clause). 18 U.S.C.
§ 924(e)(2)(B); see United States v. Wilfong,
No. 16-6342, 2017 WL 1032571, at *1 (10th Cir. Mar. 17,
argues that he is entitled to relief under Johnson.
In Johnson, the Supreme Court held that the residual
clause portion of the “violent felony” definition
under the ACCA is unconstitutional under the
void-for-vagueness doctrine. 135 S.Ct. at 2557-60, 2563;
see Welch v. United States, 136 S.Ct. 1257, 1260-61
(2016). Based on Johnson, defendant argues that at
least four of his six prior convictions are not qualifying
crimes for purposes of the ACCA's 15-year statutory
government asserts that because defendant has not shown that
his claim is based on Johnson, it is barred as a
second or successive motion. See Government's
Response To Defendant's Motion To Vacate Sentence
(Doc. #155) at 7-10. In particular, the government contends
that if the Court counted defendant's prior convictions,
not under the residual clause, but under some other clause of
Section 924(e)(2)(B) to which Johnson does not
apply, then defendant's motion does not rely on
Johnson. See id. at 9-10. Unfortunately,
the record does not reflect whether at sentencing, the Court
counted defendant's prior convictions under the residual
clause or one of the other clauses in the ACCA. Even so, the
Court finds that defendant's motion is based on
Johnson. As explained below, before
Johnson, defendant could not establish that his
prior convictions did not qualify under Section 924(e)(2)(B).
first Section 2255 motion, defendant alleged that at
sentencing, counsel should have objected that in determining
whether his prior convictions qualified as predicate offenses
under the ACCA, the Court did not follow the procedure set
forth in Shepard v. United States, 544 U.S. 13
(2005). Defendant asserted that his prior convictions for
second-degree burglary under Mo. Rev. Stat. § 569.170
did not qualify under the ACCA because he never actually
entered a house or building. See Motion Under 28 U.S.C.
§ 2255 (Doc. #134) at 6. The Court overruled
defendant's claim as follows:
Convictions for second-degree burglary under Mo. Rev. Stat.
§ 569.170 qualify as burglary within the meaning of
Section 924(e)(2)(B)(ii) so long as the burglary is of a
“building or structure.” United States v.
Walker, 497 Fed.Appx. 676, 676 (8th Cir. 2013);
United States v. Bell, 445 F.3d 1086, 1090-91 (8th
Cir. 2006). The Presentence Investigation Report
(Doc. #91) (“PSIR”) noted that defendant
satisfied the requirements for a sentencing enhancement under
the ACCA because he had been convicted of six violent
felonies under Section 924(e)(2)(B): (1) on February 21, 1997
in Jackson County Circuit Court, Kansas City, Missouri, Case
No. CR96-1813 for Exhibiting a Deadly Weapon, (2) on February
21, 1997 in Jackson County Circuit Court, Kansas City,
Missouri, Case No. CR96-71584 for Burglary, Second Degree,
(3) on March 13, 2003 in Clay County Circuit Court, Liberty,
Missouri, Case No. 7CR102004332 for Burglary, Second Degree
and Attempted Second Degree Burglary, (4) on July 3, 2003 in
Platte County Circuit Court, Platte City, Missouri, Case No.
03CR8226501 for Burglary, Second Degree, (5) on January 19,
2007 in Clay County Circuit Court, Liberty, Missouri, Case
No. 06CY-CR01560 for Burglary, Second Degree, and (6) on
January 19, 2007 in Clay County Circuit Court, ...