United States District Court, E.D. Arkansas, Western Division
WEBBER WRIGHT, UNITED STATES DISTRICT JUDGE
are Defendant’s Motion to Vacate, Set Aside, or Correct
Sentence based on United States v.
Johnson (Doc. No. 48) and Motion for Order (Doc.
No. 46). The Government has responded. For the reasons
set out below, the Motion to Vacate, Set Aside, or Correct
Sentence is GRANTED and the Motion for Order is MOOT.
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). 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. 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.
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 . . .
.” “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 . . .
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,  the Supreme Court held that the
“residual clause” of the ACCA was
unconstitutionally vague and violated due process.
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.
the ACCA enhancement, Defendant’s total offense level
is 29 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.
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 ...