United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court for initial review of a Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255
Motion"), ECF No. 365, filed by pro se Defendant,
Bradford Winnie. Rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts
requires initial review of a defendant's § 2255
motion. Rule 4(b) states:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
pleading guilty to the offenses of possession of stolen
firearms in violation of 18 U.S.C. §§ 922(j) &
924(a)(2) (Count I), and felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) & 924(e)
(Count II), the Defendant received a sentence of 120 months
incarceration on Count I and 210 months incarceration on
Count II, to be served concurrently, to be followed by 3
years of supervised release on Count I and 3 years of
supervised release on Count II, to be served concurrently.
ECF No. 276. The Defendant did not appeal the conviction or
§ 2255 Motion, the Defendant asserts that the sentence
should be vacated pursuant to the Supreme Court's
decisions in Johnson v. United States, 576 U.S.__,
135 S.Ct. 2551 (2015), and Welch v. United States,
578 U.S.__, 136 S.Ct. 1257 (2016).
Johnson, the Supreme Court held the residual clause
of the Armed Career Criminal Act of 1984, 18 U.S.C.
§924(e)(1), (the “ACCA”), to be
unconstitutionally vague, and therefore void. In
Welch, the Supreme Court held “that
Johnson is retroactive in cases on collateral
review[.]” 136 S.Ct. at 1268.
Beckles v. United States, 580 U.S.__, No. 15-8544,
2017 WL 85578 (March 6, 2017), the Supreme Court held that
the United States Sentencing Guidelines (“USSG”),
including the residual clause of USSG § 4B1.2(a), which
contained language identical to the residual clause in the
ACCA, are not subject to vagueness challenges
under the Due Process Clause.
review of the Defendant's Presentence Investigation
Report (“PSR”), ECF No. 274, reveals that the
Defendant received a sentencing enhancement under USSG §
2K2.1(a)(2) due to prior crimes of violence, i.e.,
robbery and two bank robberies, and USSG §
4B1.4(b)(3)(A) for possessing a firearm in connection with a
burglary, which the Defendant contends fell within the scope
of the residual clause of USSG § 4B1.2(a). In light of
the Supreme Court's decision in Beckles, the
Defendant's argument lacks merit with respect to his
sentence under the USSG.
extent the Defendant asserts that he was improperly sentenced
pursuant to the unconstitutionally vague residual clause of
the ACCA at issue in Johnson, this argument also
lacks merit. Section 924(e)(1) of the ACCA mandates a minimum
fifteen-year sentence for individuals who violate 18 U.S.C.
§ 922(g) and also have three previous convictions for a
violent felony or serious drug offense, or both. 18 U.S.C.
§ 924(e)(1). Section 924(e)(2)(B) defines a violent
felony as a crime that is punishable by a term of
imprisonment exceeding one year, and -
(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.
18 U.S.C. § 924(e)(2)(B) (emphasis added). Subsection
(i) is referred to as the “elements clause, ” the
enumerated crimes in subsection (ii) comprise what is
referred to as the “enumerated clause, ” and the
remaining italicized language above is the residual clause.
In Johnson, the Supreme Court invalidated only the
residual clause. 576 U.S. __, 135 S.Ct. at 2563. Therefore,
sentences pursuant to the elements and enumerated clauses of
§ 924(e)(2)(B) remain valid. Id.
Defendant pled guilty to a violation of 18 U.S.C.
§§ 922(g), i.e., felon in possession of a
firearm, and 924(e)(1) was applied due to his prior
convictions for robbery under Nebraska state law and two
separate bank robberies under federal law.
order to succeed on his § 2255 Motion, the Defendant
must show that one of his prior convictions fell within the
residual clause rather than the elements clause or enumerated
clause. Robbery under Nebraska law and federal bank robbery
have been found to constitute violent felonies under the
elements clause. See, e.g., Mosley v. United
States, No. 4:16-cv-00863, 2017 WL 513031, at *2 (E.D.
Mo. Feb. 8, 2017) (concluding federal bank robbery
convictions pursuant to 18 U.S.C. § 2113 are violent
felonies under the ACCA's elements clause) (citing
United States v. Boman, 810 F.3d 534, 543 (8th Cir.
2016); United States v. Hicks, 374 Fed. App'x.
673 (8th Cir. 2010) (concluding robbery under Nebraska state
law “has as an element, the use, attempted use, or
threatened use of physical force against the person of