United States District Court, E.D. Arkansas, Western Division
ROY WILSON UNITED STATES DISTRICT JUDGE
is Defendant’s Motion to Vacate, Set Aside, or Correct
Sentence based on Johnson v. United
States (Doc. No. 21). The Government has
responded. For the reasons set out below, the motion
is GRANTED. Defendant’s Motion for Bond (Doc. No. 24)
is DENIED as MOOT.
November 17, 2006, Defendant pled guilty to being a felon in
possession of a firearm. On March 2, 2007, he was sentenced to
188 months in prison and 3 years supervised
release. Defendant’s sentence was enhanced
under the Armed Career Criminal Act (“ACCA”)
based on five prior convictions for residential burglary and
two for commercial burglary.
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 Johnson
v. United States,  the Supreme Court held that the
“residual clause” of the ACCA was
unconstitutionally vague and violated due process.
Government concedes that Defendant’s prior conviction
for residential burglary before 1993 and commercial burglary
are no longer “violent felonies” under the ACCA.
Accordingly, the ACCA does not apply, because Defendant no
longer has three prior qualifying convictions.
the ACCA enhancement, Defendant’s total offense level
is 15 and his criminal history category is VI.
This results in a guideline range of 41-51 months.
reasons set out above, Defendant’s Motion to Vacate,
Set Aside, or Correct Sentence (Doc. No. 44) is GRANTED.
Under the Sentencing Reform Act of 1984, and considering
provisions found in 18 U.S.C. § 3553, Defendant’s
sentence is reduced to 41 months. Supervised release ...