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United States v. Norton

United States District Court, E.D. Arkansas, Western Division

May 18, 2016

UNITED STATES OF AMERICA
v.
MICHAEL WAYNE NORTON

          ORDER

          SUSAN WEBBER WRIGHT, UNITED STATES DISTRICT JUDGE

         Pending are Defendant’s Motion to Vacate, Set Aside, or Correct Sentence based on United States v. Johnson[1] (Doc. No. 48) and Motion for Order (Doc. No. 46). The Government has responded.[2] For the reasons set out below, the Motion to Vacate, Set Aside, or Correct Sentence is GRANTED and the Motion for Order is MOOT.

         I. BACKGROUND

         On December 28, 2004, Defendant pled guilty to being a felon in possession of a firearm (Count 1) and possession of a stolen firearm (Count 2).[3] On June 28, 2005, Defendant was sentenced to 180 months in prison on Count 1, a concurrent 120 months on Count 2, and 5 years supervised release.[4] Defendant’s sentence was enhanced under the Armed Career Criminal Act (“ACCA”) based on prior convictions for attempted burglary, escape, and two second degree burglaries.

         II. DISCUSSION

         A. ACCA

         Under the ACCA, a defendant receives an increased sentence if he had three separate, previous convictions for “a violent felony or a serious drug offense, or both . . . .”[5] “Violent felony” was defined, in part, as a felony 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 . . . .[6]

         The phrase “or otherwise involves conduct that presents a serious potential risk of physical injury to another” is known as the “residual clause.” In United States v. Johnson, [7] the Supreme Court held that the “residual clause” of the ACCA was unconstitutionally vague and violated due process.

         The Government concedes that Defendant’s prior convictions for fleeing and attempted burglary fall under the residual clause found unconstitutional in Johnson. Accordingly, the ACCA does not apply because Defendant has only two prior burglary convictions that qualify.

         Without the ACCA enhancement, Defendant’s total offense level is 29[8] and his criminal history category is VI. This results in a guideline range of 151-188 months, but the range is above the 120-month statutory maximum.

         B. USSG § 5G1.2

         As mentioned earlier, Defendant was convicted of both felon in possession of a firearm and possession of a stolen firearm. Originally, the sentences for the two counts were to ...


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