United States District Court, D. Kansas
MEMORANDUM AND ORDER ON MOTION TO VACATE
Honorable J. Thomas Marten United States District Court
August 26, 2009 an Indictment was entered against defendant
Robert Cameron Foust charging him with four counts: (1) Hobbs
Act robbery in violation of 18 U.S.C. § 1951; (2)
brandishing a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c); (3) felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and § 924(a); and (4) possession of a stolen
firearm in violation of 18 U.S.C. § 922(j) and
§924(a)(2). (Dkt. 16). Mr. Foust entered a plea of
guilty under Fed. R. Crim. P. 11(c)(1)(C) to counts 1, 2, and
3 of the Indictment on December 8, 2009. (Dkt. 44). The
parties to the Plea Agreement jointly recommended to the
court a prison sentence of 32 years, or 384 months, as an
appropriate disposition of the case. (Dkt. 44, p.4-5). Mr.
Foust was sentenced pursuant to the terms of the Plea
Agreement on March 2, 2010 to a term of 150 months in custody
on count 1, 84 consecutive months in custody on count 2, and
150 consecutive months in custody on count 3 for a total term
of 384 months. (Dkt. 49).
to the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), Mr.
Foust filed a petition (Dkt. 53) pursuant to 28 U.S.C. §
2255 asking the Court to vacate: (1) his conviction for
brandishing a firearm in furtherance of a crime of violence
pursuant to 18 U.S.C. § 924(c), and (2) his Armed Career
Criminal sentence enhancement pursuant to 18 U.S.C. §
924(e). (Dkt. 53). The court stayed Mr. Foust's petition
at the parties' request, as the appellate courts were
expected to issue a ruling dispositive of the issues in the
petition. (Dkt. 57.)
Supreme Court decided United States v. Davis on June
24, 2019. 139 S.Ct. 2319 (2019). The parties agree, and the
Court concurs, that controlling authority now exists which
directs the disposition as to both claims of Mr. Foust's
Foust's first claim, that his § 924(c) conviction
for brandishing a firearm during the commission of a crime of
violence is constitutionally infirm, is DENIED. Mr. Foust
asserts that his § 924(c) conviction is invalid because
it is parasitic upon his conviction for Hobbs Act robbery
(see 18 U.S.C. § 1951) which does not qualify
as a crime of violence under either § 924(c)(3)(A)'s
“force” or “elements” clause or
§ 924(c)(3)(B)'s “residual” clause.
Davis struck down the residual clause of §
924(c)(3)(B) as unconstitutionally vague. 139 S.Ct. at 2336.
Precedent decided subsequent to Mr. Foust's petition,
however, makes clear that a Hobbs Act robbery conviction
requires proof that the defendant used, attempted to use, or
threatened to use physical force. See §
924(c)(3)(A); see also United States v. Harris, 761
Fed.Appx. 852 (10th Cir. 2019) (Hobbs Act robbery
is a crime of violence under § 924(c)(3)(A)'s
elements clause); United States v. Melgar-Cabrera,
892 F.3d 1053, 1060-66 (10th Cir. 2018) (same); United
States v. Jefferson, 911 F.3d 1290, 1296-99 (10th Cir.
2018) same); Stokeling v. United States, 139 S.Ct.
544 (2019) (finding a Florida robbery statute very similar to
Hobbs Act robbery requires proof the defendant used physical
force). Because the Davis decision left the force
clause of § 924(c)(3)(A) intact, and because Hobbs Act
robbery is a crime of violence pursuant to that clause, Mr.
Foust's conviction for brandishing a firearm in
furtherance of Hobbs Act robbery (a crime of violence), was
second argument advanced by Mr. Foust contends that the Armed
Career Criminal Act (ACCA) sentence enhancement under 18
U.S.C. § 924(e) was improperly applied to his Count 3
conviction for felon in possession of a firearm in violation
of 18 U.S.C. §§922(g)(1) and 924(a). Section 924(e)
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent
felony or serious drug offense, or both, committed on
occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen
years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).
18 U.S.C. §924(e)(1). The ACCA enhancement was applied
to Mr. Foust's Count 3 conviction pursuant to 18 U.S.C.
§ 924(e) and U.S.S.G. § 4B1.4. The predicate
offenses for the enhancement were three convictions for
third-degree burglary under Alabama law. (See Dkt.
47, PSR, ¶ 67, 86, 98, 99). The government agrees with
Mr. Foust's position that the sentencing enhancement was
improperly applied in the wake of
Johnson, a state law burglary conviction could
qualify as a crime of violence in two ways. First, a
defendant's sentence could be enhanced under 18 U.S.C.
§ 924(e)(2)(B)(i) if he “was convicted of a crime
having ‘the basic elements' of generic
burglary-i.e., unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit
a crime.” Descamps v. United States, 133 S.Ct.
2276, 2283 (2013). Second, even where the defendant had been
convicted of a burglary that did not meet the elements of the
generic offense, an enhancement was available under the
residual clause of § 924(e)(2)(B)(ii), because
“‘by its nature,' burglary ‘involves a
substantial risk that the burglar will use force against a
victim in completing the crime.'” United States
v. Maldonado, 696 F.3d 1095, 1100 (10th Cir. 2012)
(quoting Leocal v. Ashcroft, 543 U.S. 1, 10, 125
S.Ct. 377, 160 L.Ed.2d 271 (2004)) (abrogated by United
States v. Copeland, 921 F.3d 1233, 1250-51
(10th Cir. 2019) (noting that court's prior
reliance upon the residual clause to enhance a sentence was
error under the Johnson decision)).
Tenth Circuit's rule that non-generic burglary qualified
as a crime of violence under the residual clause was based on
the Supreme Court's decision in James v. United
States, 550 U.S. 192 (2007). James held that
attempted burglary, though it did not meet the generic
definition of the crime, qualified as a violent felony
because it created a substantial risk of the use of force.
Id. at 208; see also Maldonado at 1101
(relying on James to conclude that non-generic
California burglary was a violent felony under the residual
clause). In the process of excising the residual clause, the
United States Supreme Court's decision in
Johnson overruled James. See Johnson, 135
S.Ct. at 2563. Subsequent to the Johnson decision,
then, non-generic burglaries which qualified as § 924(e)
predicates only under the residual clause of §
924(e)(2)(B)(ii) can no longer support an ACCA enhancement.
parties agree, and the court concurs, that Mr. Foust's
prior Alabama third-degree burglary convictions do not fit
the generic definition of burglary that would qualify them as
predicates under the ACCA. See United States v. Howard,
742 F.3d 1334, 1349 (11th Cir. 2014) (“the statute is
non-generic and indivisible, which means that a conviction
under Alabama Code § 13A-7-7 cannot qualify as generic
burglary under the ACCA.”); United States v.
Jones, 743 F.3d 826, 828 (11th Cir. 2014)
(“treating the use of Alabama convictions for third
degree burglary as violent felonies for ACCA purposes is
plain error”). It follows that Mr. Foust's prior
Alabama burglary convictions would qualify as ACCA predicates
only under the unconstitutional § 924(e) residual
clause. Consequently, in the wake of the Johnson
decision, the ACCA enhancement was improperly applied to Mr.
Foust's Count 3 conviction. Mr. Foust's petition, as
to his second argument, is GRANTED.
parties have jointly requested that the Court re-sentence Mr.
Foust to 285 months. The original sentence in this case of
384 months was the result of a binding plea agreement.
(See Dkt. 44). The court's sentence for Counts 1
and 2 remains unaffected.
Count 3, the parties agree that removing the unconstitutional
ACCA enhancement would result in a new base offense level of
14. See USSG § 2K2.1(a)(4). But, because the
sentencing guidelines group Count 1 with Count 3,
(see Dkt. 47, PSR ¶ 56), the highest offense
level applicable to either grouped offense predominates.
See U.S.S.G. §3D1.2. The court consequently