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United States v. Fisher

United States District Court, E.D. Pennsylvania

April 21, 2017

UNITED STATES OF AMERICA
v.
DAVID LEE FISHER

          MEMORANDUM

          ROBERT F. KELLY, Sr. J.

         Presently before the Court is a Motion to Correct Sentence Under 28 U.S.C. § 2255 (“§ 2255”) by David Lee Fisher (“Fisher”), the Response in Opposition filed by the United States of America (“Government”), and Fisher's Reply. For the reasons set forth below, we grant Fisher's Motion.

         I. BACKGROUND

         On February 26, 2003, Fisher was convicted of one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), which generally carries a mandatory minimum sentence of ten years. On June 27, 2003, Fisher was sentenced to a term of imprisonment of 327 months. His sentence was based, in part, on the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). “Under 18 U.S.C. § 922(g), it is unlawful for a person who has been previously convicted of a felony to possess a firearm. A defendant convicted under that section is subject to a fifteen-year minimum sentence under the ACCA if he ‘has three previous convictions . . . for a violent felony or a serious drug offense, or both[.]'” United States v. Abbott, 748 F.3d 154, 157 (3d Cir. 2014) (quoting 18 U.S.C. § 924(e)). The United States Court of Appeals for the Third Circuit (“Third Circuit”) affirmed Fisher's conviction, but vacated his sentence and remanded for resentencing in accordance with United States v. Booker, 543 U.S. 220 (2005). See United States v. Fisher, 126 F. App'x 71, 74 (3d Cir. 2005) (not precedential). On March 13, 2006, at the resentencing hearing, Fisher was sentenced to a term of imprisonment of 224 months, which was based, in part, on the ACCA.

         Fisher moves to correct his sentence under § 2255 contending that his sentence is invalid in light of the ruling in Johnson v. United States, - U.S. -, 135 S.Ct. 2551 (2015) (holding that the residual clause of the ACCA's definition of “violent felony” is unconstitutionally vague).[1]“In Johnson, the Supreme Court struck down the so-called residual clause of this definition [of the ACCA] - ‘or otherwise involves conduct that presents a serious potential risk of physical injury to another' - as void for vagueness.” United States v. Dobbin, 629 F. App'x 448, 452 (3d Cir. 2015) (citing Johnson, 135 S.Ct. at 2563). However, “Johnson did not disturb the other parts of the ACCA, including the ACCA's other two means of determining whether a potential predicate crime is a crime of violence: namely, the ‘elements' clause at 924(e)(2)(B)(i) dealing with the use or threatened use of force, and the ‘enumerated offense' clause at 924(e)(2)(B)(ii).” United States v. Parks, No. 15-cr-0152, 2017 WL 679945, at *3 (M.D. Pa. Feb. 21, 2017) (citation omitted); see also Miller v. Cameron, No. 14-cv-5531, 2016 WL 6892745, at *4 (E.D. Pa. Nov. 23, 2016) (“Johnson did not strike down any other portion of the ACCA, or even any other portion of the definition of ‘violent felony'; sentences imposed under other clauses in that same section of the statute are still valid.”).

         Fisher does not challenge the Court's reliance on two prior serious drug convictions as predicate crimes, but only argues that the third conviction for aggravated assault no longer qualifies as a valid predicate crime for his enhanced sentence under the ACCA.[2] Thus, our case focuses on the “elements” clause; specifically, whether Fisher's predicate crime of aggravated assault is a “violent felony” under the ACCA.

         II. LEGAL STANDARD

         28 U.S.C. § 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to “vacate, set aside, or correct the sentence” where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). If a party is entitled to relief under § 2255(a), “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. § 2255(b). A petitioner is entitled to an evidentiary hearing unless the motion, files, and records of the case show conclusively that the petitioner is not entitled to relief. Id.; see also United States v. Ritter, 93 F. App'x 402, 404 (3d Cir. 2004). In this case, an evidentiary hearing is unnecessary, and we will dispose of Fisher's § 2255 Motion on the record.

         III. DISCUSSION

         A. Categorical/Modified Categorical Approach

         “When deciding whether a previous conviction counts as a ‘violent felony or a serious drug offense' under the ACCA, a sentencing court may look only to the elements of a defendant's prior conviction, not ‘to the particular facts underlying those convictions.'” Abbott, 748 F.3d at 157 (quoting Descamps v. United States, __ U.S. __, 133 S.Ct. 2276, 2283 (2013)). “This elements-based inquiry has come to be called the ‘categorical approach.'” Id. (quoting Descamps, 133 S.Ct. at 2281). The elements of the crime of conviction must necessarily match the elements of a “violent felony” as defined in the ACCA. Id. “[T]he ACCA ‘generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.'” Id. (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)). “A court should ‘not [look] to the particular facts underlying those convictions.'” Id. (quoting at Taylor, 495 U.S. at 600). “If the elements of the crime of conviction ‘cover a greater swath of conduct than the elements of the relevant ACCA offense, ' if the elements are broader than the ACCA offense, then the conviction does not qualify as a predicate offense under the ACCA.” United States v. Harris, 205 F.Supp.3d 651, 660 (M.D. Pa. 2016) (quoting Mathis v. United States, __ U.S.__, 136 S.Ct. 2243, 2251 (2016)). “Even if a defendant's ‘conduct fits within' the ACCA offense, ‘the mismatch of elements' disqualifies the conviction as a predicate offense.” Id. (quoting Mathis, 136 S.Ct. at 2251). “In other words, we look to the elements of the prior offense ‘to ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the statute.'” United States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016) (quoting Hernandez-Cruz v. Att'y Gen., 764 F.3d 281, 285 (3d Cir. 2014)). “The elements, not the facts, are key.” Id. (citing Descamps, 133 S.Ct. at 2283).

         In some cases, the “modified categorical approach” applies. When the statute of conviction is divisible, identifying multiple, alternative elements, rather than a single, indivisible set of elements, courts apply the “modified categorical approach” to identify the particular crime of conviction. See Abbott, 748 F.3d at 157 (quoting Descamps, 133 S.Ct. at 2285). “The purpose of the modified categorical approach is to ‘help effectuate the categorical analysis when a divisible statute . . . renders opaque which element played a part in the defendant's conviction.'” Id. (quoting Descamps, 133 S.Ct. at 2283). “When faced with divisible statutes, we apply a ‘modified categorical approach' that allows us ‘to consult a limited class of documents . . . to determine which alternative formed the basis of the defendant's prior conviction.'” United States v. Henderson, 841 F.3d 623, 627 (3d Cir. 2016) (quoting Descamps, 133 S.Ct. at 2281). “Under this approach, if a statute is divisible, a court may consult ‘the charging paper and jury instructions' when the conviction resulted from a jury trial, Taylor, 495 U.S. at 602 . . . or, when the conviction resulted from a guilty plea, ‘the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.' Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).” United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014), as amended (Nov. 4, 2014). “The modified categorical approach still ‘retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime.'” Id. (quoting Descamps, 133 S.Ct. at 2285).

         At sentencing, it is the Government's burden to demonstrate the applicability of a sentencing enhancement by a preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 156 (1997); United States v. Hill,, - F.Supp.3d -, No. 07-cr-371, 2016 WL 7076929, at *6 (W.D. Pa. Dec. 5, 2016) (“It is the Government's burden at sentencing to demonstrate the applicability of a sentencing enhancement by a preponderance of the evidence.”).

         B. The ACCA's Definition of ...


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