United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
G. Brown has filed a pro se motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Document
#19. On October 2, 2013, Brown was indicted for being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). Document #1. On February 5, 2014, Brown pleaded
guilty pursuant to the terms of his plea agreement. Document
#17. The Court sentenced Brown to 84 months in prison and to
one year of supervised release. Id. at 2-6. For the
following reasons, Brown's motion is denied.
U.S.C. § 2255 provides prisoners in federal custody a
mechanism to challenge the constitutionality, legality, or
jurisdictional basis of a sentence imposed by the Court.
Relief under section 2255 is “reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and, if uncorrected would result in a complete
miscarriage of justice.” United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). “Unless
the motion and the files and the records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusion
of law with respect thereto.” 28 U.S.C. § 2255(b).
Here, the motion and the files and the record of the case
conclusively show that Brown is entitled to no relief.
argues that his sentence should be vacated and corrected
pursuant to Johnson v. United States, __ U.S. __,
135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the
residual clause definition of “violent felony” in
the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague. Document #19
at 4. The guidelines' definition of “crime of
violence” includes an identical residual clause, but
the Supreme Court has yet to determine its constitutionality.
Brown was not sentenced under section 924, but he was
subjected to an enhanced advisory guideline sentencing range
because he had previously been convicted of a “crime of
parties stipulated in the plea agreement that U.S.S.G. §
2K2.1(a) applied to Brown. Document #15 at 4. Section
2K2.1(a)(4)(A) establishes a base offense level of twenty if
“the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of
either a crime of violence or a controlled substance offense
. . .” The guidelines defined “crime of violence
as” at the time Brown was sentenced as any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another,
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives,  or otherwise involves conduct that
presents a serious potential risk of physical injury to
U.S.S.G. § 4B1.2(a) (2013) (residual clause in italics).
Brown's prior conviction was for committing a Texas
felony robbery offense. The issue is whether robbery is a
“crime of violence” under the residual clause. If
Brown was sentenced under the force clause or if he was
convicted of an enumerated offense, then Johnson
does not apply to his sentence. See Johnson, 135
S.Ct. at 2563 (“[This] decision does not call into
question [the] application of the Act to the four enumerated
offenses.”). The application notes following the
guidelines state: “‘Crime of violence'
includes . . . robbery . . . .” U.S.S.G. § 4B1.2
(2013). Congress amended the guidelines in 2016 to include
“robbery” as an enumerated offense in the actual
guidelines. U.S.S.G. § 4B1.2(a)(2)(2016). But
Texas's designation of a particular statute as its
“robbery” statute does not necessarily mean that
it qualifies as “robbery” under section 4B1.2(a)
of the guidelines.
was convicted of violating section 29.02 of the Texas Penal
Code, which provides
[A] person commits [robbery] if, in the course of committing
theft . . . and with intent to obtain or maintain control of
the property, he: intentionally, knowingly, or recklessly
causes bodily injury to another; or intentionally or
knowingly threatens or places another in fear of imminent
bodily injury or death.
Tex. Penal Code Ann. § 29.02 (West 2015). The Fifth
Circuit held that section 29.02 was an enumerated offense
under U.S.S.G. § 2L1.2, because robbery as defined under
Texas law “falls within the generic, contemporary
meaning of ‘robbery.'” United States v.
Santiesteban-Hernandez, 469 F.3d 376, 379 (5th Cir.
2006) (abrogated on other grounds by United States v.
Rodriguez, 711 F.3d. 541, 554 (5th Cir. 2013)). See
also, United States v. Ortiz-Rojas, 575
Fed.Appx. 494, 495 (5th Cir. 2014). Like section 4B1.2(a) of
the guidelines, section 2L1.2 does not list
“robbery” as an enumerated offense in the body of
the guidelines, but lists it in the application notes.
See United States v. Fennell, No.
3:15-CR-433-L (01), 2016 WL 4491728 at *3 (applying the
holding in Santiesteban-Hernandez to sections 2K2.1
and 4B1.2 of the guidelines). The Fifth Circuit explained:
Although the precise state definitions vary, the generic form
of robbery ‘may be thought of as aggravated larceny,
' containing at least the elements of
‘misappropriation of property under circumstances
involving [immediate] danger to the person.' Wayne R.
LaFave, Substantive Criminal Law § 20.3 intro., (d)(2)
(2d ed. 2003). The immediate danger element is what makes
robbery ‘deserving of greater punishment than that
provided for larceny' and extortion, id. . . .
Although the majority of states focus on an act of force in
articulating the requisite level of immediate danger, and the
Texas statute focuses on the realization of the immediate
danger through actual or threatened bodily injury, the
difference is not enough to remove the Texas statute from the
family of offenses commonly known as ‘robbery.'
Rather, the elements of the Texas statute substantially
correspond to the basic elements of the generic offense, in
that they both involve theft and immediate danger to a
Santiesteban-Hernandez, 469 F.3d at 380-81. This
Court agrees with the Fifth Circuit's characterization of
section 29.02 and the Eighth Circuit follows a similar
procedure in determining whether an offense designated by
state law as an enumerated offense falls within the generic
definition of that offense. See, e.g., United
States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011)
(“[W]e examine the elements of the underlying state
offense to determine if the conviction necessarily
involved ‘the use, attempted use, or threatened use of
physical force against the person of another, ' U.S.S.G.
§ 4B1.2(a)(1), otherwise encompassed the generic
definition of one of theenumerated offenses in
Application Note 1 of the Commentary to section 4B1.2,
or fits within the residual clause of section
4B1.2(a)(2).”) (emphasis added). Texas's robbery
offense is not a “crime of violence” ...