United States District Court, E.D. Pennsylvania
F. KELLY, Sr. J.
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.
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Fisher, 126 F. App'x 71, 74 (3d Cir. 2005) (not
precedential).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.
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).“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
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. Thus, our case focuses on the
“elements” clause; specifically, whether
Fisher's predicate crime of aggravated assault is a
“violent felony” under the ACCA.
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.
Categorical/Modified Categorical Approach
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.
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).
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
The ACCA's Definition of ...