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Fletcher v. United States

United States Court of Appeals, Eighth Circuit

May 26, 2017

Deshawn Maurice Fletcher Petitioner - Appellant
v.
United States of America Respondent - Appellee

          Submitted: November 17, 2016

         Appeal from United States District Court for the District of Nebraska - Lincoln

          Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.

          GRUENDER, Circuit Judge.

         Deshawn Fletcher appeals the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his criminal sentence. For the reasons below, we affirm the district court.[1]

         I.

         Fletcher pleaded guilty in August 2012 to one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), to 210 months, which the district court subsequently reduced to 158 months under Federal Rule of Criminal Procedure 35(b). Fletcher did not appeal, and his conviction became final on August 16, 2013, when the time to appeal the district court's amended judgment expired. See Fed. R. App. P. 4(b)(1)(A); Never Misses A Shot v. United States, 413 F.3d 781, 782 (8th Cir. 2005) (per curiam) (noting that a conviction becomes final in the absence of an appeal on the date the time to appeal expires). His ACCA predicate offenses consisted of possession with intent to distribute crack cocaine and two Nebraska felony convictions for making terroristic threats (one as a juvenile and one as an adult). At sentencing, Fletcher did not object to the revised presentence investigation report's ACCA classification. Thus, the district court did not have occasion to articulate how Fletcher's terroristic threats convictions qualified as ACCA predicate offenses. Fletcher filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on November 13, 2015 after the Supreme Court invalidated the residual clause of the ACCA. See Johnson v. United States, 135 S.Ct. 2551, 2563 (2015); Welch v. United States, 136 S.Ct. 1257, 1268 (2016) (applying Johnson retroactively). The district court denied Fletcher's motion, determining that his prior convictions for making terroristic threats qualify under the force clause. Fletcher appeals.

         II.

         We review de novo a "district court's determination of whether [a] conviction qualifies as a violent felony under the ACCA." United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (citation omitted). Under the ACCA, a person convicted of being a felon in possession of a firearm is subject to a mandatory minimum sentence of fifteen years if he has three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). Fletcher does not dispute that he has been convicted of a qualifying serious drug offense. Thus, the only question is whether his two Nebraska felony convictions for making terroristic threats qualify as violent felonies.

         The ACCA defines a violent felony as:

[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult 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, [or] involves the use of explosives . . . .[2] Id. at § 924(e)(2)(B).

         The key question in this case is whether a conviction under the Nebraska terroristic threats statute qualifies as a violent felony under the ACCA without the residual clause. However, Fletcher also challenges whether a juvenile conviction for making terroristic threats can meet the preliminary requirement that a qualifying juvenile offense "involv[e] the use or carrying of a firearm, knife, or destructive device." See id. The parties have generally assumed that this question is part of a single Johnson claim, but we disagree. An act of juvenile delinquency cannot qualify as a violent felony under any clause of the ACCA, including the residual clause, unless the court first determines that it involved the use or carrying of a firearm, knife, or destructive device. In this way, the question of whether a juvenile conviction involved the use or carrying of a firearm, knife, or destructive device is completely separate from the question of whether the juvenile conviction is an enumerated offense or qualifies under the force clause. See 924(e)(2)(B)(i), (ii). Indeed, the only way in which the residual clause could have affected a juvenile conviction is if the offense first met the preliminary condition that it involve a firearm, knife, or destructive device. Thus, Fletcher's contention that his juvenile conviction did not involve the use or carrying of a firearm, knife, or destructive device is a separate claim ...


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