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United States v. Toomer

United States District Court, E.D. Pennsylvania

April 27, 2017

UNITED STATES OF AMERICA
v.
TERIAN TOOMER Civil Action No. 16-3235

          MEMORANDUM

         Bartle, J.

         Before the court is the motion of petitioner Terian Toomer to correct his sentence under 28 U.S.C. § 2255 in light of the recent decision of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated a provision of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924.[1]

         In April 2002, Toomer pleaded guilty to a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He was sentenced to 235 months of imprisonment in June 2002. The court found that he was subject to ACCA, which prescribes a fifteen-year mandatory minimum sentence for a felon in possession of a firearm who has three prior “violent felony” convictions. See § 924(e)(1). If the felon in possession of a firearm has less than three prior violent felony convictions, he is subject to a maximum sentence of ten years imprisonment. See Welch v. United States, 136 S.Ct. 1257, 1261 (2016).

         At the time of his sentencing, Toomer had the following prior convictions: (1) first-degree robbery in Pennsylvania; (2) second-degree robbery in Pennsylvania; (3) second-degree aggravated assault in Pennsylvania; (4) robbery with a deadly weapon in Maryland; (5) attempted robbery with a deadly weapon in Maryland; and (6) assault with intent to rob in Maryland.[2] It was not contested that at least three of those convictions were violent felonies under the definition then found in § 924(e)(2)(B). Thus, the court made this finding without specifying which of the definitions of violent felony under § 924(e)(2)(B) was applicable.

         I.

         Prior to Johnson and at the time of Tomer's sentencing, ACCA read:

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony . . . committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years . . .
(2) As used in this subsection-
. . .
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . that --
(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 . . .

See § 924(e) (emphasis added).

         In Johnson, the Supreme Court decided that what is known as the “residual clause” of ACCA was void for vagueness. See Johnson, 135 S.Ct. at 2563. This clause stated that a prior conviction was a violent felony if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” See § 924(e)(2)(B)(ii). The Court in Johnson determined that “[t]he text of the residual clause provides little guidance on how to determine whether a given offense ‘involves conduct that presents a serious potential risk of physical injury.'” See Welch, 136 S.Ct. at 1261 (quoting § 924(e)(2)(B)(ii)). The Court subsequently held in Welch that Johnson applies retroactively to petitioners who were sentenced under ACCA before Johnson had been decided. See id. at 1265.

         Following Johnson, a prior conviction is a violent felony only if it falls into one of two categories: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; or (2) “is burglary, arson, or extortion, [or] involves the use of explosives.” See § 924(e)(2)(B). Here, because Toomer's prior convictions are not for burglary, arson, extortion, or the use of explosives, they must now satisfy the “force clause” to be deemed violent felonies under ACCA.[3] Toomer asserts that less than three of his prior convictions “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another.” See id. If he is correct, his sentence, which exceeded ten years, is unlawful.[4]

         The Supreme Court, as set forth in Taylor v. United States, 495 U.S. 575 (1990), has required the application of the “categorical approach” in deciding whether a prior conviction is a violent felony for purposes of ACCA. It “focus[es] solely on whether the elements of the crime of conviction sufficiently match” ACCA “while ignoring the particular facts of the case.” See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) (citing Taylor, 495 U.S. at 600-01). The Supreme Court has explained:

“Elements” are the “constituent parts” of a crime's legal definition -- the things the “prosecution must prove to sustain a conviction.” Black's Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, see Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999); and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty, see McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Id. After the court has identified the elements of a prior offense, “[t]he court then lines up that crime's elements alongside” those required by ACCA “and sees if they match.” See id. A prior offense is a violent felony under ACCA if the elements of the prior offense are the same as or narrower than required by ACCA. See Descamps v. United States, 133 S.Ct.

         2276, 2283-84 (2013) (citing Taylor, 495 U.S. at 600). If the elements of the prior offense are broader than ACCA, the prior conviction is not an ACCA predicate offense. See Mathis, 136 S.Ct. at 2251.

         Unfortunately, identification of the elements of the prior conviction statute is not always a straightforward exercise. Some statutes are considered “divisible” because they “list elements in the alternative, and thereby define multiple crimes.” See id. at 2249. Where the statute is divisible, the court must apply the “modified categorical approach” to determine which of the possible elements “was integral to the defendant's conviction (that is, which was necessarily found or admitted).” See id. Under this circumstance, the court considers “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted ...


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