United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Fletcher has filed a § 2255 motion based upon Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015). The matter has been well-briefed by an Assistant United States Attorney and an Assistant Federal Public Defender. I thank them for their good and prompt work.
Fletcher entered a plea of guilty to a one-count information charging possession of a firearm after having been convicted of three offenses which were violent felonies and serious drug offenses. Two of the convictions were for terroristic threats, and one of those convictions was committed when Fletcher was a juvenile. I sentenced him to 210 months in prison, but I subsequently reduced that sentence to 158 months in prison pursuant to Federal Rule of Criminal Procedure 35(b).
The government concedes that Johnson is retroactive. The government also concedes that Fletcher’s motion is timely. However, the government forcefully argues that Fletcher’s two convictions for terroristic threats under Neb. Rev. Stat. § 28-311.01 are qualifying felonies under the specific language of 18 U.S.C. § 924(e)(2)(B)(i), rather than the “residual clause” of 18 U.S.C. § 924(e)(2)(B)(ii) (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) declared invalid by Johnson.
With elaborations and qualifications, I agree with the government, and will deny Fletcher’s motion. Briefly, here is my reasoning:
Point 1-18 U.S.C. § 924(e)(1) and (e)(2)(B)(i) & (ii) state:
(e) (1) 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 a 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).
(2) As used in this subsection-
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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 . . . .
Point 2-Neb. Rev. Stat. § 28-311.01 provides that:
(1) A person commits terroristic threats if he or she threatens to commit ...