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United States v. Eskridge

United States District Court, D. Kansas

March 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DARRON L. ESKRIDGE, Defendant. Criminal Action No. 08-20153-01-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On 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.

         Factual Background

         On 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.[1] Defendant appealed. On April 13, 2011, the Tenth Circuit affirmed his conviction and sentence. See Order And Judgment (Doc. #133).

         On 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 (Doc. #141).

         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). 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).

         Analysis

         The 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).

         Under 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, 2017).

         Defendant 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 minimum.

         I. Procedural Bar

         The 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.[2] 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).

         In his 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, ...

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