United States District Court, W.D. Arkansas, Fayetteville Division.
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS STATES DISTRICT JUDGE
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.
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 §
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 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.
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).
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.
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). 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.
Determining Whether a State-Law Conviction Qualifies as a