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United States v. Long

United States District Court, W.D. Arkansas, Fayetteville Division.

August 23, 2016

UNITED STATES OF AMERICA PLAINTIFF
v.
TIMOTHY LONG DEFENDANT

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS STATES DISTRICT JUDGE

         Currently before the Court are Timothy Long's Motion for Relief Under 28 U.S.C. § 2255 (Doc. 19) and the Government's Response (Doc. 24). Long's Motion argues that he was sentenced under the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii), which was held unconstitutional in Johnson v. United States, 135 S.Ct. 2551 (2015). The Government's Response concedes that the sentence is unconstitutional and must be vacated. The Court therefore GRANTS Long's Motion (Doc. 19) and ORDERS the case to be set for resentencing.

         I. BACKGROUND

         Timothy Long pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) on February 2, 2010. On June 18, 2010, the U.S. Probation Office filed a Presentence Investigation Report ("PSR") noting that Long had three prior violent felony convictions, which qualified as predicate offenses under the Armed Career Criminal Act (the "ACCA"). (Doc. 16). Under the ACCA, a defendant convicted of an offense under 18 U.S.C. § 922(g) who has three previous convictions for a "violent felony" or a "serious drug offense" is subject to a 15-year mandatory minimum sentence, regardless of the statutory maximum for the § 922(g) offense.

         In Long's case, the PSR relied on the following three prior violent felony convictions: (1) Battery 2nd Degree in Benton County Circuit Court on November 13, 2001; (2) Aggravated Assault in Benton County Circuit Court on November 13, 2001; (3) Fleeing (By Vehicle with Extreme Indifference) in Benton County Circuit Court on July 12, 2005. (Doc. 16, ¶ 10). Accordingly, on June 18, 2010, this Court[1] enhanced Long's sentence under the ACCA, and sentenced him to 192 months imprisonment, five years of supervised release, a $15, 000.00 fine, and a $100.00 special assessment. (Doc. 18). Long filed the instant Motion under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence on May 20, 2016. The Motion relies on Johnson, 135 S.Ct. 2551 (2015), and argues that Long is no longer subject to the 15-year mandatory minumum sentence required under the ACCA. The Government agrees that under Johnson, Long is entitled to relief and should be resentenced accordingly.

         II. DISCUSSION

         A. ACCA

         Generally, a defendant found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) is subject to a maximum term of imprisonment of ten years. 18 U.S.C. § 924(a)(2). However, if the defendant has three or more prior convictions for a "serious drug offense" or a "violent felony, " the ACCA imposes a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as a crime punishable by a term of imprisonment 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.

18 U.S.C. § 924(e)(2)(B) (emphasis added).

         The phrase "or otherwise involves conduct that presents a serious potential risk of physical injury to another" is known as the ACCA's "residual clause." See Johnson, 135 S.Ct. at 2556. In Johnson, the Supreme Court held that the residual clause was unconstitutionally vague because "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." 135 S.Ct. at 2557. Accordingly, "[i]ncreasing a defendant's sentence under the clause denies due process of law." Id.

         In striking the residual clause, the Court held the clause void in its entirety. Johnson, 135 S.Ct. at 2561. Additionally, on April 18, 2016, the Supreme Court held that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. Welch v. United States, 136 S.Ct. 1257 (2016).[2] Thus, defendants whose sentences were previously enhanced under the ACCA may be entitled to resentencing if the prior felonies on which the enhancement relied only qualified as violent felony predicates under the residual clause.

         B. Determining Whether a State-Law Conviction Qualifies as a ...


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