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United States v. Webster

United States District Court, D. Nebraska

March 8, 2017



          Joseph F. Bataillon Senior United States District Judge

         This matter is before the court after a hearing on November 7, 2016, on the defendant's motions to amend and to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Filing Nos. 82 and 87). He challenges his fifteen-year mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(c)(1)(A)(ii). Webster seeks relief under Johnson v. United States, 135 S.Ct. 2551 (2015) and Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). The decision in Johnson was given retroactive effect in cases on collateral review by the Supreme Court. Welch v. United States, 136 S.Ct. 1257, 1265 (2016). This is Webster's first § 2255 motion and was filed within one year of the Supreme Court's decision in Johnson.[1]

         I. BACKGROUND

         Percy Eugene Webster (“Webster”) was charged in a two count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count I) and with forfeiture of the firearm under 18 U.S.C. § 924(d) (Count II). Filing No. 1, Indictment. The indictment included the allegation that Webster had previously been convicted of four felonies, each of which appeared to be a predicate offense under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). On September 14, 2009, the government filed an Information of Prior Convictions, again charging the four predicate ACCA convictions: (1) a 1978 Nebraska armed robbery; (2) a 1981 Maryland robbery; (3) a 1988 Maryland burglary; and (4) a 1999 federal drug conspiracy. conviction for conspiracy to distribute crack cocaine. Filing No. 29, Information of Prior Convictions.

         The defendant entered a plea of guilty to the felon-in-possession and forfeiture counts pursuant to a plea agreement. Filing No. 17, Plea Agreement. Although Webster admitted committing the underlying offense, he did not admit that the ACCA was applicable. That issue was to be resolved by the court. The United States Probation Office (“Probation”) prepared a Presentence Investigation Report (“PSR”) which identified the four crimes set out above as predicate crimes for purposes of the ACCA. Filing No. 31, PSR (Sealed). Webster did not challenge the Nebraska robbery and drug convictions as ACCA predicates, but did object to the Maryland convictions for robbery in 1981 and burglary in 1988. Filing No. 24, Objection.

         At the original sentencing hearing on December 21, 2009, Webster argued for a sentence at the low end of the Guidelines range, absent any career-offender enhancement. He argued that the government could not meet its burden of proof that the Maryland convictions were constitutionally valid prior convictions for purposes of the ACCA. He agreed with Probation's Guidelines calculation, which was total offense level 19 and criminal history category VI, resulting in a sentencing range of 63-78 months. Filing No. 39, Transcript (“Tr.”) at 16-17. In support of the statutory enhancement, the government offered a PSR from Webster's 1999 federal conviction, to which Webster had not objected, that showed the two Maryland convictions and docket sheets from the cases resulting in the Maryland convictions. The defendant objected to those exhibits on the grounds of lack of foundation and violation of the Confrontation Clause under Shepard v. United States, 544 U.S. 13, 16 (2005).[2] The court sustained the defendant's objections and denied the government's motion for an enhanced sentence under the ACCA. Webster was sentenced to a term of imprisonment of 72 months, followed by three years of supervised release. He was also sentenced to a consecutive term of twenty-four months on a separate charge of violation of supervised release. Filing No. 39, Tr. at 19.

         The government appealed the defendant's sentence-it challenged the court's findings with respect to the 1988 burglary conviction, but did not appeal the court's findings on the 1981 robbery conviction. The Eighth Circuit Court of Appeals (“Eighth Circuit”) found the district court “erred when it concluded Shepherd did not allow the case history or the 1999 PSR to be used to show Webster was convicted of the 1988 Maryland burglary in daytime housebreak.” United States v. Webster, 636 F.3d 916, 919 (8th Cir. 2011) (“Webster I”). Finding that the “district court's factual determination as to the existence of a conviction for a particular crime and an analysis of the statute under the formal categorical approach must precede any Shepard analysis, ” the Eighth Circuit stated that Shepard's limitation of evidence is addressed “only to those situations where ‘a later court [is] determining the character of' the prior conviction” and does not apply “to antecedent factual questions such as whether the defendant was convicted of a crime at all, or of which crime the defendant was convicted.” Id. at 919. Further, the Appeals Court found that “any conviction under § 27-30 is a violent felony, ” and instructed that “if the district court finds Webster was convicted of the 1988 Maryland burglary, it should sentence Webster pursuant to the ACCA.” Id. at 920.[3] The sentence was reversed and the action was remanded for resentencing consistent with the Eighth Circuit's opinion. Id.

         This court conducted a resentencing hearing on June 1, 2011, and June 22, 2011. Filing No. 67, Transcript. At that hearing, the defendant again offered no objection to the two Nebraska convictions as predicate felonies. The court noted that it had earlier sustained the defendant's objection to documents supporting the 1981 robbery conviction referred to in ¶ 40 of the PSR. Filing No. 67, Tr. at 4. The defendant again objected to the 1981 conviction as an ACCA predicate offense. Id. at 3. The government expressly disavowed reliance on the 1981 conviction, conceding the defendant's objection to ¶ 40 of the PSR. Government counsel stated:

MR. WELLMAN: As to paragraph 40, we have no argument. When the Solicitor General authorized an appeal of this matter, they authorized us to appeal the second Maryland conviction from '88 and they said not to appeal the earlier conviction. So that's really not at issue here.


         The court admitted, over defendant's foundation objection, the 1988 case history (docket sheet) and the 1999 federal PSR as evidence of the 1988 burglary conviction. Id. at 6. The court afforded no weight to the 1999 PSR, reasoning that Webster had no incentive to object to it at the time. Relying on the docket sheet, the court found by a preponderance of the evidence that the government had established the 1988 burglary conviction. The court found the document referred to Webster's conviction for burglary multiple times and was “internally consistent with respect to” the conviction. Id. at 32-33. Finding that the evidence showed Webster had been convicted of three predicate offenses under the ACCA, and following the mandate of the Eighth Circuit, the court then sentenced Webster to the mandatory minimum sentence of fifteen years (180 months) imprisonment, to run concurrently with a sentence of twenty-four months for violation of supervised release, followed by three years of supervised release. Id. at 38. The sentence was affirmed on appeal. United States v. Webster, 662 F.3d 1016 (8th Cir. 2011) (“Webster II”).

         The court held a hearing on the present motion on November 7, 2016. The government offered no evidence. There was some discussion at the hearing regarding the potential applicability of the 1981 robbery conviction as an ACCA predicate offense. The parties were allowed additional time for briefing. In its brief, the government states “[t]he United States further submits an evidentiary hearing will not be needed as this matter can be resolved on the basis of the record and files before the Court.” Filing No. 92, Brief at 11. There is no evidence of the 1981 robbery conviction in the record. Pursuant to the Rule 55.1(g)(1) of the United States District Court for District of Nebraska Local Rules, the government acknowledged receipt of the exhibits submitted in connection with both the original sentencing and resentencing hearings. Filing No. 36, Exhibit Receipt; Filing No. 81, Amended Exhibit Receipt.[4]

         II. LAW

         Under 28 U.S.C. § 2255, a court may grant relief to a federal prisoner who moves to vacate, set aside or correct his sentence on any of the following grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Section 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of his sentence. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a ...

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