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United States v. Cook

United States District Court, D. Nebraska

May 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LAWRENCE RAY COOK, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge

         This matter is before the court on the defendant's motion and amended motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Filing No. 197 and Filing No. 199). He challenges his fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(c)(1)(A)(ii). Cook seeks relief under Johnson v. United States, 135 S.Ct. 2551 (2015) (hereinafter, “Johnson (2015)”).

         The Supreme Court has given the decision in Johnson (2015) retroactive effect in cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016). The Eighth Circuit Court of Appeals has authorized Cook to file a successive 28 U.S.C. § 2255 motion on the issue of whether he “qualifies as an armed career criminal based on his Nebraska convictions for making terroristic threats and for assault after Johnson.” Filing No. 200.

         I. BACKGROUND

         Cook was indicted for being a felon in possession of a firearm and ammunition after having been convicted of several felony crimes. Filing No. 1, Indictment. The government later filed an Information of Prior Convictions under 18 U.S.C. § 924(e)(1), alleging prior convictions for (1) a terroristic threat, (2) assault by a confined person, and (3) assault on an officer, then considered to be three prior “crimes of violence” that subjected him to a term of not less than fifteen (15) years under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(c)(1)(A)(ii). Filing No. 34.

         On October 28, 2008, a jury found Cook guilty of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Filing No. 82, Verdict. Cook was sentenced to 204 months' (seventeen years) of imprisonment to be followed by a five-year term of supervised release. Filing No. 102, Judgment. Cook's sentence was affirmed on appeal and his first motion for post-conviction relief was denied. Filing Nos. 96, Notice of Appeal; 122, 8th Circuit Opinion; 129, Motion to Vacate; and 141, Memorandum and Order; see United States v. Cook, 603 F.3d 434 (8th Cir. 2010).

         In the present motion, Cook contends that his conviction for terroristic threats is not a crime of violence after Johnson (2015). The government argues that Johnson (2015) does not afford Cook any relief under 28 U.S.C. § 2255. It contends that Cook's predicate terroristic threats conviction is not affected by Johnson (2015), arguing that Cook's status as an armed career criminal was based on the ACCA's force clause, rather than the residual clause invalidated in Johnson (2015). Further, the government argues that the definition of a “crime of violence” under Nebraska law fits within the definition of a violent felony in the ACCA and accordingly a conviction under Nebraska's terroristic threats statute is categorically a violent felony under the ACCA.

         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 narrow range of injuries that are outside the ambit of a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987).

         The ACCA enhances a sentence for an individual convicted under 18 U.S.C. § 922(g) from a statutory maximum of ten years to a statutory minimum of fifteen years if a defendant has been convicted as a felon in possession of a firearm “and has three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1). At the time of Cook's sentencing, the ACCA gave three definitions of “violent felony.” 18 U.S.C. § 924(e)(2)(B). It referred to any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). That provision is known as the “force clause.” See United States v. Jordan, 812 F.3d 1183, 1185 (8th Cir. 2016). The ACCA also covered any offense that “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)(ii). The first nine words of that subsection are called the “enumerated crimes clause, ” and the last thirteen are called the “residual clause.” See id. The Supreme Court found the residual clause unconstitutionally vague in Johnson, 135 S.Ct. at 2563, but did not invalidate the force clause or the enumerated crimes clause of the ACCA's definition of a violent felony.

         To determine whether a prior conviction under a statute that encompasses a single crime is a predicate violent felony offense under the ACCA, the court must apply a categorical approach, which focuses solely on the elements of the crime of conviction and whether they match the definition under the ACCA, while ignoring the particular facts of the case. Mathis v. United States, 136 S.Ct. 2243, 2248 (2016); United States v. McFee, 842 F.3d 572, 574 (8th Cir. 2016) (stating that “[t]o determine whether a prior conviction qualifies as an ACCA predicate offense under the force clause, [courts] typically ‘apply a categorical approach, looking to the elements of the offense as defined in the . . . statute of conviction rather than to the facts underlying the defendant's prior conviction'”) (quoting United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016)). In contrast, when a state statute is divisible, “in that it defines multiple crimes, some of which are ACCA predicate offenses ‘and some of which are not, [courts] apply a modified categorical approach to look at the charging document, plea colloquy, and comparable judicial records for determining which part of the statute the defendant violated.'” McFee, 842 F.3d at 574-75. A list of alternative elements is divisible, but a list of alternative means is not. Id.; see Mathis, 136 S.Ct. at 2256.

         As noted, under the force clause, a prior conviction must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The meaning of “physical force” in § 924(e)(2)(B)(i) is a question of federal law, not state law. Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson (2010)”). The phrase “physical force” in § 924(e)(2)(B)(i) “means violent force-that is, force capable of causing physical pain or injury to another person.” Id.; United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir. 2012). The Nebraska Supreme Court's interpretation of state law, however, applies with respect to the determination of the elements of the underlying predicate crime. Johnson (2010), 559 U.S. at 140.

         “The elements of a crime ‘are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.'” McFee, 842 F.3d at 575 (quoting Mathis, 136 S.Ct. at 2248). If the elements of the crime of conviction “cover a greater swath of conduct than the elements of the relevant ACCA ...


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