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Greer v. United States

United States District Court, M.D. Georgia, Columbus Division

May 1, 2017

RONNIE J. GREER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

         28 U.S.C. § 2255, 4:16-CV-00202-CDL-MSH-1

          ORDER

          CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE

         “To guard against a spirit of oppression and tyranny on the part of rulers, and as the great bulwark of our civil and political liberties, trial by jury has been understood to require that the truth of every accusation, whether preferred in the shape of indictment, information or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of the defendant's equals and neighbors.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (internal citations omitted). Thus, “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. The “prior conviction exception” has created confusion as to the circumstances under which a sentencing judge may enhance a sentence based on a prior conviction. The most recent Supreme Court decision designed to bring clarity to this area of the law produced two separate concurring opinions, one dissenting opinion joined by two Justices, and one lone dissenting opinion.[1] This confusion may also explain why the Government has changed its position in this case and now joins the Petitioner in his contention that his sentence should not have been enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

         Approximately twelve years ago, when Petitioner was first sentenced, the Government insisted that his sentence should be enhanced pursuant to the ACCA, and when this Court refused to do so under Apprendi principles, the Government successfully appealed that decision to the Eleventh Circuit Court of Appeals. United States v. Greer (“Greer II”), 440 F.3d 1267 (11th Cir. 2006), vacating and superseding on denial of reh'g 435 F.3d 1327 (11th Cir. 2006). Based on what it describes as the evolving case law in this area, today the Government joins in Petitioner's presently pending motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.[2] With no prospect of an appeal, this Court could easily grant the pending motion and declare vindication of its original position. To do so, however, would require the Court to ignore current binding precedent, not the least of which is the Eleventh Circuit Court of Appeals prior decision in this very case. For the reasons explained in the remainder of this Order, the Court denies Petitioner's motion for reconsideration of this Court's previous order that denied Petitioner's § 2255 motion (ECF Nos. 85 & 86).

         BACKGROUND

         Petitioner was found guilty by a jury on September 23, 2004, of being a felon in possession of ammunition. 18 U.S.C. § 922(g)(1). The evidence presented at trial supported a finding that Petitioner was a convicted felon and was in possession of one pistol cartridge, two rifle cartridges, and one shotgun shell. No evidence was presented that he possessed any weapons. Moreover, the jury made no findings as to the violent nature of Petitioner's prior felony convictions. United States v. Greer (“Greer I”), 359 F.Supp.2d 1376, 1378 (M.D. Ga. 2005).

         At the conclusion of the trial, the Court referred the matter to the U.S. Probation Office to conduct a presentence investigation and prepare a presentence report. The presentence report prepared by the Probation Office calculated Petitioner's guideline sentence range based in part upon a factual finding that he had three previous convictions for a “violent felony” as contemplated by 18 U.S.C. § 924(e)(1), thus making him an armed career criminal under the federal sentencing guidelines and the ACCA. Id. This finding increased Petitioner's statutory maximum potential imprisonment sentence of ten years for felon in possession of ammunition, 18 U.S.C. § 924(a)(2), to a statutory minimum mandatory sentence of fifteen years. 18 U.S.C. § 924(e)(1). Without the armed career criminal enhancement, Petitioner's guideline range was 63 to 78 months. Id.

         It is undisputed that Petitioner had three prior felonies for violation of Georgia's terroristic threats statute, O.C.G.A. § 16-11-37. Because a defendant could violate the statute without using, attempting to use, or threatening to use physical force against another, this Court found that the fact of conviction alone under the statute does not unambiguously establish a violent felony for purposes of ACCA enhancement and that other evidence associated with the criminal conduct had to be evaluated to make that determination. Greer I, 359 F.Supp.2d at 1379-81 (distinguishing the Almendarez-Torres v. United States, 523 U.S. 224 (1998) “prior conviction” exception from Apprendi). Holding that the imposition of an enhanced mandatory minimum fifteen year prison sentence based upon non-jury factual findings would violate Petitioner's Sixth Amendment rights, this Court sentenced Petitioner to 78 months imprisonment followed by a three year period of supervised release. Id. at 1381.

         The Government appealed, and the Eleventh Circuit vacated the Court's sentence and remanded Petitioner's case for resentencing. Greer II, 440 F.3d at 1276. The Court of Appeals held that because the indictments for the three underlying felonies used to enhance Petitioner's sentence indisputably established that they were “violent felonies” within the meaning of the ACCA, the Sixth Amendment did not require a jury to make that determination. Id. at 1273. On remand, this Court sentenced the Petitioner to fifteen years imprisonment followed by a three year period of supervised release. Amended Judgment, ECF No. 57.

         Nine years passed, and in Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court decided that the residual clause of the ACCA is unconstitutionally vague. To manage the § 2255 motions generated by that decision, this Court appointed counsel to represent defendants in this district whose sentences had been enhanced under the residual clause of the ACCA to determine whether they may be entitled to relief under Johnson. Counsel was appointed to represent Petitioner on March 2, 2016. Order Appointing Counsel, ECF No. 72. And counsel filed a motion to correct Petitioner's sentence pursuant to 28 U.S.C. § 2255 three months later on June 21, 2016. Pet'r's Mot. to Vacate Sentence, ECF No. 75. The Government ultimately conceded that Petitioner did not qualify as an armed career criminal. Resp't's Resp. to Pet'r's Mot. to Vacate Sentence 5, ECF No. 81. Nevertheless, the Court denied Petitioner's motion, finding that he was not entitled to relief under Johnson because Johnson only applied to the residual clause of the ACCA, and Petitioner was not sentenced under that particular clause. Order Den. Pet'r's Mot. to Vacate Sentence, ECF No. 83.

         Petitioner subsequently filed a motion for reconsideration of the Court's denial of his § 2255 motion. Pet'r's Mot. for Reconsid., ECF Nos. 85 & 86. The Government now acknowledges that Petitioner was not sentenced under the ACCA's residual clause, and therefore, he is not entitled to relief under Johnson. Resp't's Resp. to Pet'r's Mot. for Reconsid. 3-4, ECF No. 88. But it maintains that the Court should still grant Petitioner's motion because recent decisions by the Supreme Court cast doubt on the Court of Appeals' previous determination that Petitioner's terroristic threat convictions qualify as violent felonies for purposes of the elements clause of the ACCA.[3]

         DISCUSSION

         The ACCA increases the imprisonment sentence for someone convicted of being a felon in possession of a firearm or ammunition if the defendant has three prior convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). “Violent felony” is defined as any state or federal felony that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “elements clause”); (2) “is burglary, arson, or extortion, [or] involves use of explosives” (the “enumerated clause”); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the “residual clause”). 18 U.S.C. § 924(e)(2)(B). Petitioner's sentence was enhanced pursuant to the elements clause based upon his three previous convictions under Georgia's terroristic threats statute, O.C.G.A. § 16-11-37. The Court of Appeals determined that those convictions had as an element the use, attempted use, or threatened use of physical force against another person.

         As the Court of Appeals explained, and this Court initially found, the Georgia statute “prohibits both violent and nonviolent behavior, so proof that a defendant was convicted for violating the statute does not, without more, prove that he has been convicted of a violent felony for ACCA purposes.” Greer II, 440 F.3d at 1273. The court further found that the indictments introduced at the sentencing hearing for each of the three state court convictions “proved that [Petitioner's] three prior convictions were crimes of violence under the ACCA.” Id. Two of the indictments allege that the Petitioner threatened to murder someone and the other one alleged that he threatened to commit an aggravated assault when he simulated using a pistol against someone. Greer I, 359 F.Supp.2d at 1381 n.7. This Court thought “that if anything beyond the conviction itself and the statutory elements had to be considered in making the violent crime finding, the Constitution requires that the jury make it.” Greer II, 440 F.3d at 1273. That thought was mistaken according to the Court of Appeals.

         The Court of Appeals held that the sentencing judge could make that decision, particularly when it could be made by simply reviewing the conviction documents and the indictments. See id. at 1275 (recognizing trial judge's authority to make the ACCA violent felony determination when it can be made by looking at the records sanctioned in Shepard v. United States, 544 U.S. 13 (2005)). It concluded that whether Petitioner's three convictions for terroristic threats had as an element the use, attempted use, or threatened use of physical force against another person could easily be determined from the “conviction document[s] read along with the indictment[s] and in light of the statutory elements of the offense.” Id. Accordingly, the Court of Appeals remanded the matter with direction that Petitioner be sentenced as an armed career criminal under the ACCA. Id. at 1276. On remand, this Court sentenced the Petitioner to the minimum mandatory fifteen year sentence under the ACCA. Amended Judgment 2.

         Petitioner and the Government now contend that the Court of Appeals got it wrong when it found that Petitioner should be sentenced as an armed career criminal under the ACCA. Petitioner maintains that the Supreme Court's invalidation of the ACCA's residual clause in Johnson v. United States, 135 S.Ct. 2551 (2015) entitles him to relief (the “Johnson claim”). Although the Government appeared to initially agree with Petitioner on his Johnson claim, it modified its position after this Court pointed out that Petitioner was not sentenced under the residual clause of the ACCA. Resp't's Resp. to Pet'r's Mot. for Reconsid. 3-4. In the alternative, Petitioner and the Government maintain that Petitioner is entitled to relief even if Johnson does not apply.

         They argue that under the Supreme Court's recent decisions in Descamps v. United States, 133 S.Ct. 2276 (2013) and Mathis v. United States, 136 S.Ct. 2243 (2016), the Court of Appeals erred when it concluded that Petitioner's three prior convictions under the Georgia terroristic threats statute qualified as ACCA predicate offenses under the elements clause of the ACCA (the “Mathis/Descamps claim”). They contend that the use, attempted use, or threatened use of physical force against another person is not an element of the statute, and therefore, any conviction under it is not a violent felony for ACCA purposes.

         I. The Johnson Claim Lacks Merit

         As this Court explained in its previous order, Johnson has no application to Petitioner's motion because he was sentenced under the elements clause, not the residual clause, of the ACCA. See In re Hires, 825 F.3d 1297, 1299 (11th Cir. 2016) (explaining that “prisoners who were sentenced under the elements or enumerated clauses, without regard to the residual clause at all, of course, do not fall within the new substantive rule in Johnson”). Petitioner has no Johnson claim, and continued insistence that he does is frivolous. The Court ...


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