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United States v. Willis

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

December 18, 2018




         Currently before the Court are Objections to the Magistrate Judge's Report and Recommendation (Doc. 38) filed by Defendant/Petitioner Shane Willis. On May 2, 2016, Mr. Willis filed a Motion to Vacate under 28 U.S.C. § 2255 (Doc. 30) requesting that the Court vacate his sentence and set it for resentencing. The Government responded to the Motion to Vacate on June 6, 2016 (Doc. 32), and Mr. Willis filed his Reply on June 27, 2016. (Doc. 33). On April 4, 2018, Magistrate Judge Wiedemann issued her Report and Recommendation ("R&R"), recommending that Mr. Willis' Motion be denied. See Doc. 37. Mr. Willis filed his objections to the R&R on April 12, 2018. Having considered the R&R and the objections thereto, the Court now ADOPTS the R&R and DENIES the Motion to Vacate.

         I. BACKGROUND


         On November 14, 2012, the Defendant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to the Armed Career Criminal Act (the "ACCA"), the Presentence Investigation Report ("PSR") provided for an enhancement because the Defendant had four previous convictions for violent felonies: residential burglary, terroristic threatening, second degree battery, and second degree domestic battery. (Doc. 36 ¶¶ 31-33, 35). Because he had at least three prior convictions for violent felonies, what would have been a 10-year maximum sentence now became a fifteen-year minimum sentence. 18 U.S.C. § 924(e)(1). He was subsequently sentenced to 15 years imprisonment, and the Eighth Circuit affirmed the sentence on appeal. (Doc. 29).


         Mr. Willis now seeks to be resentenced, arguing that two of these four convictions no longer qualify as violent felonies under the ACCA and that the ACCA enhancement was thus improperly applied. Mr. Willis first argues that his March 7, 2001 conviction for terroristic threatening no longer qualifies as a predicate offense under the ACCA because it could only be considered a crime of violence pursuant to the "residual clause," which has been declared unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). He further argues that his conviction for residential burglary does not qualify as a violent felony under extant Eighth Circuit law.[1]

         Magistrate Judge Wiedemann's R&R found and recommended that Mr. Willis' terroristic threatening conviction qualified as a violent felony under the ACCA and, as a result, he had the three predicate convictions necessary to trigger the ACCA sentencing enhancement. The R&R also recommended denying a certificate of appealability. Mr. Willis filed his Objections, requesting that the Court decline to adopt the R&R. (Doc. 38).


         When a defendant makes specific objections to portions of a magistrate judge's report and recommendation, the district court must review the contested findings or recommendations de novo. See 28 U.S.C. § 636(b)(1). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

         Categorically, Mr. Willis lodged three objections to the R&R.[2] The first objection contends that the ACCA enhancement was improperly applied because Mr. Willis was convicted of aggravated assault rather than terroristic threatening. The second contends that, even if he was convicted of terroristic threatening, this conviction should not be considered a violent felony for purposes of the ACCA. Finally, even if the Court disagrees with the above two contentions, Mr. Willis contends that he should be granted a certificate of appealability because whether his conviction for terroristic threatening should remain a crime of violence is an open question that he should be entitled to pursue further on appeal. The Court considers each objection in turn.

         A. Conviction for Terroristic Threatening[3]

         Mr. Willis first contends that there is an ambiguity in his March 7, 2001 conviction for terroristic threatening. Namely, the state court judgment cited the terroristic threatening statute, Ark. Code Ann. § 5-13-301, but listed the offense of conviction as aggravated assault, an offense the government concedes would not qualify as a predicate violent felony. See Doc. 36, p. 4. Because of this ambiguity, Mr. Willis contends that the Court should employ the rule of lenity and find that he was convicted of aggravated assault. The Court disagrees.

         The evidence presented to the Court surrounding Mr. Willis' March 7, 2001 conviction is as follows:

1. The Felony Information for No. CR 2000-2016 dated December 21, 2000 accuses Mr. Willis of "Aggravated Assault" (Count 1) and "Terroristic Threatening" (Count ...

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