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United States v. Lindley

United States District Court, W.D. Arkansas, Fort Smith Division

January 19, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
THOMAS LINDLEY DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant/Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on February 16, 2016. (Doc. 31) The United States filed a response (Doc. 34) on March 18, 2016. Following a stay pending the decision in Mathis[1], the Defendant/Petitioner filed a memorandum in support of his § 2255 motion (Doc. 43) on September 14, 2016. The United States filed its supplemental response (Doc. 44) on October 7, 2016. Defendant/Petitioner filed a reply (Doc. 47) on December 7, 2016. The matter is ready for report and recommendation.

         I. Background

         On April 6, 2011, Defendant/Petitioner, Thomas Lindley (“Lindley”), was named in an Indictment charging him, having previously been convicted of a crime punishable by imprisonment exceeding one year, with knowingly possessing a firearm, which had been shipped and transported in interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 1) Lindley was arrested on April 25, 2011, and he appeared for arraignment before the Hon. James R. Marschewski, Chief United States Magistrate Judge, on May 5, 2011, at which time Lindley entered a not guilty plea to the Indictment. (Doc. 5) John B. Schisler (“Schisler”), Assistant Federal Public Defender, was appointed to represent Lindley. (Doc. 7)

         On June 21, 2013, Lindley appeared before the Hon. P. K. Holmes, III, Chief United States District Judge, for a change of plea hearing. (Doc. 13) Pursuant to a written Plea Agreement (Doc. 14), Lindley pleaded guilty to the Indictment charging him with knowingly possessing a firearm, which had been shipped and transported in interstate commerce, after having been previously convicted of a crime punishable by imprisonment exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 13; Doc. 14, ¶ 1) The Court tentatively approved the Plea Agreement and ordered a Presentence Investigation Report. (Doc. 13)

         An initial Presentence Investigation Report (“PSR”) was prepared on September 19, 2011. (Doc. 17) In it, Lindley's criminal conduct resulted in a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). (Doc. 18, ¶ 10) Since Lindley was subject to an enhanced penalty pursuant to 18 U.S.C. § 924(e), he was considered an armed career criminal within the meaning of U.S.S.G. § 4B1.4, which elevated his offense level to 33. (Doc. 17, ¶ 16) After a reduction of three levels for acceptance of responsibility (Doc. 17, ¶ 17), Lindley's total offense level was determined to be 30 (Doc. 17, ¶ 18).

         Lindley was found to have 24 criminal history points, placing him in criminal history category VI. (Doc. 17, ¶ 49) Because Lindley was determined to be an armed career criminal, the statutory minimum term of imprisonment was 15 years, and the statutory maximum term of imprisonment was life. (Doc. 17, ¶ 63) Based on a total offense level of 30 and a criminal history category of VI, the advisory guideline range for imprisonment was 168 to 210 months; but, because Lindley faced a mandatory minimum sentence of 15 years as an armed career criminal, the guideline range for imprisonment was 180 to 210 months. (Doc. 17, ¶ 64) Absent the armed career criminal finding, the statutory maximum for the offense of conviction would have been not more than ten years imprisonment. (Doc. 2; Doc. 17, ¶ 63) The United States advised that it had no objections to the PSR. (Doc. 17, p. 17) Lindley, through his counsel, made two objections to the PSR, both of which resulted in corrections being made by the Probation Officer. (Id.) A final PSR was submitted to the Court on November 17, 2011. (Doc. 17)

         Lindley appeared for sentencing on December 8, 2011. (Doc. 16) The Court made inquiry that Lindley was satisfied with his counsel; the PSR was reviewed in open court; counsel and Lindley were afforded the opportunity to make statements; and, the Court imposed a low-end guidelines sentence of 180 months imprisonment, five years supervised release, a $3, 000.00 fine, and a $100.00 special assessment. (Doc. 16) Judgment was entered by the Court on December 8, 2011. (Doc. 18)

         Lindley filed a Notice of Appeal from the Judgment on December 20, 2011. (Doc. 20) On appeal, his counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and he argued (1) that Lindley's prior convictions were not “violent felonies” because his family members were the victims in at least two of his four burglary convictions and his robbery conviction did not involve a weapon, and (2) that this Court treated the sentencing guidelines as mandatory. United States v. Lindley, 481 Fed.Appx. 294 (8th Cir. 2012). These arguments failed, and the Eighth Circuit affirmed this Court's judgment. Id.

         On February 16, 2016, Lindley filed his pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 31) Lindley's motion cites the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and he argues that his “prior convictions that were counted under the residual clause must be disregarded, and Petitioner must be resentenced to a non-ACCA sentence if he no longer has three prior qualifying convictions for crimes of violence.” (Doc. 31, p. 4)

         The United States' response to the motion was filed on March 18, 2016. (Doc. 34) In it, the United States argued that burglary is one of the offenses specifically enumerated as a “violent felony” in 18 U.S.C. § 924(e)(2)(B)(ii); that Johnson did not call into question application of the enumerated offenses or the remainder of the ACCA's definition of a “violent felony”; that the Eighth Circuit found Lindley's prior convictions to be “violent felonies” in his direct appeal; and, that by using the modified categorical approach, and relying on United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015), Lindley's prior burglary convictions are “violent felonies” under the ACCA. The United States asserted, “[t]he Eighth Circuit[']s decision in Mathis is decisive here.” (Doc. 34, p. 10)

         On April 8, 2016, Lindley filed a Motion to Stay Proceedings (Doc. 35) in which he referred to the Government's Mathis argument and noted that the United States Supreme Court had granted certiorari in Mathis v. United States, 136 S.Ct. 894 (Jan. 19, 2016). An Order (Doc. 36) was entered on May 2, 2016 granting the stay pending the Supreme Court's decision in Mathis.

         Mathis v. United States, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) was decided on June 23, 2016. This Court then entered an Order (Doc. 39) on August 8, 2016 terminating the stay and requesting additional briefing. Lindley filed his Memorandum in Support of Motion Under 28 U.S.C. § 2255 (Doc. 43) on September 14, 2016. The United States filed its response (Doc. 44) on October 7, 2016. Lindley then filed a reply (Doc. 47) on December 7, 2016.

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Lindley's § 2255 motion, the United States' response, and the files and records of this case conclusively show that Lindley is entitled to relief under Johnson, and the undersigned recommends that his motion pursuant to § 2255 (Doc. 28) be granted, his sentence be vacated, and that Lindley be re-sentenced without the ACCA enhancement based on his pre-1993 Arkansas burglary convictions.

         A. Johnson, Welch, and the Residual Clause of the ACCA

         The ACCA defines the term “violent felony” as a crime punishable by a term of ...


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