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Myers v. United States

United States District Court, D. Maine

June 22, 2017



          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner John Wayne Myers moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 54.) In 2001, following a jury trial, Petitioner was convicted of being a felon in possession of firearms and ammunition; the Court sentenced Petitioner to a term of 235 months in prison. Petitioner contends he is entitled to be resentenced because, pursuant to Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), his prior Wisconsin burglary convictions no longer qualify as violent felonies for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

         The First Circuit granted Petitioner's request to file a successive section 2255 motion to address “solely the issue of whether Petitioner's Wisconsin burglaries qualified as predicates under § 924(e)(2)(B).” (Myers v. United States, Nos. 16-1864, 16-2135 (1st Cir. Jan. 12, 2017).) The First Circuit “express[ed] no opinion about the ultimate merits of the issue.” Id. The Government has requested summary dismissal. (Response, ECF No. 77.)

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         Petitioner was convicted of being a felon in possession of firearms and ammunition, 18 U.S.C. § 922; the Court sentenced him to a prison term of 235 months, to be followed by a term of five years of supervised release. United States v. Myers, 294 F.3d 203, 204, 206 (1st Cir. 2002). (Jury Verdict, ECF No. 22; Sentencing Tr., ECF No. 32 at 317; Judgment, ECF No. 29.)

         At sentencing, the Government introduced without objection the criminal complaints and judgments for two Wisconsin burglary convictions, one in 1968 and the other in 1972. (Sentencing Tr. at 304-07; Attachments to Response, ECF Nos 77-1, 77-2.) The criminal complaints in both cases, and the judgment in the 1968 case, establish that the 1968 conviction and one count of the 1972 conviction involved the entry of a building without consent and with felonious intent. (Attachments, ECF Nos. 77-1 at 3, 9, 77-2 at 2.) The Court asked counsel whether the facts regarding the Wisconsin burglaries, among other prior convictions, were accurate. (Sentencing Tr. at 307.) Counsel conceded that the Government had established the prior convictions by a preponderance of the evidence. (Id.)

         The remaining background relevant to Petitioner's motion is set forth in the First Circuit's judgment granting permission to file a successive section 2255 motion:

Petitioner essentially concedes that his Wisconsin armed robbery qualified as a violent felony under 18 U.S.C. § 924(e)(2)(B)(i). Irrespective, he develops no argument that the armed robbery did not qualify, and the ground fails. However, it is unclear under current precedent whether Petitioner's Wisconsin burglary convictions qualified as violent felonies.

(Myers, Nos. 16-1864, 16-2135 (1st Cir. Jan. 12, 2017).)

         II. Discussion

         Petitioner's sentence was enhanced, pursuant to 18 U.S.C. § 924(a)(2), (e)(1), because the Court found he had at least three prior convictions that qualified as “violent felonies” under section 924(e)(2)(B).[1] (Sentencing Tr., ECF No. 32 at 310.) Without the enhancement, he faced a maximum of ten years in prison, but with three prior violent felonies, he faced a minimum of fifteen years in prison. 18 U.S.C. § 924(a)(2), (e)(1).

         In Johnson, the Supreme Court held that the so-called “residual clause” of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. 135 S.Ct. at 2557. In Welch v. United States, ___ U.S. ___, __, 136 S.Ct. 1257, 1268 (2016), the Supreme Court determined that “Johnson announced a substantive rule that has retroactive effect in cases on collateral review.” However, in Johnson, the Court explicitly left intact the enumerated offenses provision of section 924(e)(2)(B)(ii): “Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Id. at 2563. Burglary is one of the offenses enumerated in section 924e)(2)(B)(ii). Therefore, to the extent Petitioner's prior Wisconsin burglary convictions remain valid under the enumerated crimes provision of section 924(e)(2)(B)(ii), Petitioner is not entitled to relief under Johnson.[2]

         The central issue is whether Petitioner is entitled to relief based on the Supreme Court's recent decision in Mathis v. United States, __ U.S. __, 136 S.Ct. 2243 (2016).[3] In Mathis, in its assessment of Iowa's burglary statute, the Supreme Court reiterated that a prior crime does not qualify as a predicate violent felony under section 924(e)(2)(B)(ii) unless “its elements are the same as, or narrower than, those of the generic offense.” 136 S.Ct. at 2247. The Court determined that the same rule applies to a statute of conviction “that lists multiple, alternative means of satisfying one (or more) of its elements.” Id. at 2248. Because Iowa's burglary statute provided the offense could be committed in land, water or air vehicles, as well as buildings and structures, the “locational element” of the burglary statute rendered the crime broader than generic burglary, which includes only buildings and structures, id. at 2250.

         Although the First Circuit apparently has not decided whether a Wisconsin burglary of a “building or dwelling” is a generic burglary, the Eighth Circuit did so in United States v. Lamb, 847 F.3d 928 (8th Cir. 2017), which provides persuasive authority. See Powell v. Alexander, 391 F.3d 1, 24 (1st Cir. 2004) (noting that a party's reliance on nonbinding but persuasive authority from another circuit on an issue of first impression in this circuit, provided a “plausible” argument). In Lamb, which was on remand for reconsideration following Mathis, the Eighth Circuit held that a Wisconsin burglary of a “building or dwelling” constituted a “violent felony” under the enumerated crimes clause, 18 U.S.C. §924(e)(2)(B)(ii), for purposes of an enhanced sentence. 847 F.3d at 930, 933-34.

         Specifically, the Court concluded that section 943.10(1m) of the Wisconsin burglary statute is divisible because subsections (a) through (f) “list the locational elements of divisible burglary offenses.”[4] 847 F.3d at 932. The Court held that a modified categorical ...

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