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Reeves v. United States

United States District Court, D. Maine

October 16, 2018

JOSEPH SCOTT REEVES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Joseph Scott Reeves moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Amended Motion, ECF No. 55.) In 2006, following a guilty plea, Petitioner was convicted of possession of firearms as a felon, Hobbs Act robbery, and use of firearms during the commission of a federal crime of violence; he was sentenced to a total prison term of 262 months. (Judgment, ECF No. 29 at 1-2.) Petitioner did not appeal from the conviction or the sentence.

         Petitioner asserts a claim pursuant to Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015). (Amended Motion at 1.) Following a review of Petitioner's motion, the Government's request for dismissal, and the record, I recommend the Court grant the Government's request to dismiss Petitioner's section 2255 motion.

         I. Factual Background and Procedural History

         Petitioner was convicted of possession of firearms as a felon, 18 U.S.C. § 922(g)(1) (Count 1); Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count 2); and use of firearms during the commission of a federal crime of violence, 18 U.S.C. § 924(c) (Count 3). (Judgment at 1.)

         The Court concluded Petitioner was a career offender under the sentencing guidelines, USSG § 4B1.1(a). (Presentence Order, ECF No. 26 at 1-2 n.2, and at 7; Sentencing Tr., ECF No. 52 at 8.) The Court sentenced Petitioner to prison terms of 120 months on Count 1; 178 months on Count 2, to run concurrently; and 84 months on Count 3, to run consecutively to Count 2, for a total prison sentence of 262 months. (Judgment at 2.) The prison terms were to be followed by supervised release terms of three years on Counts 1 and 2, and five years on Count 3, with all supervised release terms to run concurrently. (Judgment at 3.)

         Petitioner states he placed his pro se motion in the prison mailing system on January 25, 2016. (Motion, ECF No. 43 at 7.) Petitioner included in the pro se motion a claim under Johnson. (Memorandum in Support, ECF No. 43-1 at 1.) Counsel was appointed to represent Petitioner with respect to the Johnson claim. (Order, ECF No. 46.) Petitioner, represented by counsel, filed an amended motion. (Amended Motion at 1.) In the amended motion, Petitioner withdrew all claims except the Johnson claim. (Id. at 3.)

         II. Discussion

         In Johnson, the statute at issue was the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), which imposes a 15-year mandatory minimum prison term when a defendant is convicted of a violation of 18 U.S.C. § 922(g) and has three previous convictions, committed on separate occasions, “for a violent felony or a serious drug offense, or both.” 135 S.Ct. at 2555-57. Section 924(e)(2)(B) defines the term “violent felony” and provides:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         Section 924(e)(2)(B)(i) is known as the “force” clause or the “elements” clause; the provision of section 924(e)(2)(B)(ii) that references burglary, arson, extortion, and the use of explosives is known as the “enumerated offenses” clause; the remainder of section 924(e)(2)(B)(ii), i.e., the provision “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” is known as the “residual” clause. United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017); United States v. Edwards, 857 F.3d 420, 422-23 & n.2 (1st Cir. 2017).

         In Johnson, the Court held the residual clause unconstitutionally vague. 135 S.Ct. at 2555-57. The Court left intact the force clause and the enumerated offenses clause of section 924(e)(2)(B): ‚ÄúToday's decision does not call into question application of the Act to the four enumerated offenses, or the ...


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