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Crews v. United States

United States District Court, S.D. Georgia, Waycross Division

February 1, 2018

MARK ELDON CREWS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Approximately six years ago, this Court sentenced Mark Eldon Crews (“Crews”) to fifteen years' imprisonment under the Armed Career Criminal Act (“ACCA”). Crews, who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, has now filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 106.)[1]Crews contends that the Court must resentence him following the United States Supreme Court's decision in Johnson v. United States, ___U.S. at___, 135 S.Ct. 2551, 2563 (June 26, 2015). However, Johnson only invalidated the ACCA's residual clause, and Crews has failed to demonstrate that the Court relied upon that clause in any way during his sentencing proceedings. To the contrary, the record reveals that the Court sentenced Crews as an armed career criminal due to his extensive history of burglary convictions and the ACCA's specific enumeration of burglary as a crime of violence.

         Because Crews does not raise a valid Johnson claim, I RECOMMEND this Court DISMISS Crews' Motion to Vacate, Set Aside, or Correct his Sentence for lack of jurisdiction under 28 U.S.C. § 2255(h). (Doc. 106.) Alternatively, to the extent that the Court reaches the merits of Crews' arguments, it should DENY his Motion on the merits. Further, I RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Crews a Certificate of Appealability and in forma pauperis status on appeal. Additionally, for reasons that follow, the Court DENIES Crews' Motion to Amend. (Doc. 112.)

         BACKGROUND

         I. The Armed Career Criminal Act

         The Court typically begins its discussion of a matter by detailing the factual and procedural background of the case before it. However, the facts and history of Crews' case will be better understood by first discussing the federal statutes under which Crews was prosecuted and recent cases pertinent to those laws.

         Federal law prohibits certain persons, including convicted felons, from shipping, possessing, or receiving firearms in or affecting interstate commerce. 18 U.S.C. § 922(g)(1). Ordinarily, an individual who violates this prohibition faces a statutory maximum sentence of ten years' imprisonment. 18 U.S.C. § 924(a). However, a statutory provision known as the “Armed Career Criminal Act” or “ACCA” imposes a higher mandatory minimum term of imprisonment for certain offenders. Any person who violates Section 922(g) and has on three or more occasions been convicted for a “serious drug offense” or “violent felony” will receive a mandatory minimum sentence of fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). The ACCA provides, in relevant part:

the term “violent felony” means any 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, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B).[2]

         The first prong of this definition, set forth in subsection (i), has come to be known as the “elements clause, ” while the crimes listed at the beginning of the subsection (ii), “burglary, arson, or extortion, or involves use of explosives, ” have come to be known as the “enumerated crimes.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Finally, the last portion of subsection (ii), “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” is commonly referred to as the “residual clause.” Id.

         In the landmark case of Johnson, ___U.S. at___, 135 S.Ct. at 2563, the Supreme Court held that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process[.]” Thus, the Court struck down that portion of the ACCA. However, the Court also emphasized that its “decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Id. In Welch v. United States, ___U.S.___, 136 S.Ct. 1257, 1264-65 (Apr. 18, 2016), the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review.

         While the four enumerated crimes (or the “enumerated crimes clause”) have not suffered the same fate as the residual clause, they have been the subject of numerous recent decisions of the Supreme Court and the Eleventh Circuit Court of Appeals. These decisions inform an analysis that is more complicated than would appear at first blush: whether an offender's prior conviction that bears the label of an enumerated crime actually constitutes a conviction for one of the enumerated offenses for purposes of the ACCA. Rather than merely relying on the label attached to an offender's prior conviction, federal courts must assess whether the defendant committed one of the enumerated crimes actually envisioned upon the passage of the ACCA. To conduct this inquiry, a sentencing court must assess the elements forming the basis of the offender's conviction and compare those elements to the “generic crime-i.e., the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013).

         Decisions regarding whether a burglary conviction qualifies as an ACCA predicate offense demonstrate how courts approach the enumerated crimes. Though the ACCA specifically lists “burglary” as a violent felony, merely because a state conviction is labeled a “burglary” does not automatically qualify it as a predicate offense under the ACCA. Rather, “[a]s the [ACCA] has been interpreted, a conviction for ‘generic burglary' counts as a violent felony, while a conviction for ‘non-generic burglary' does not.” United States v. Ranier, 616 F.3d 1212, 1213 (11th Cir. 2010), abrogated on other grounds by United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). A “generic” burglary is “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). A “non-generic” burglary is one that “do[es] not include all of the elements essential to generic burglaries, ” including burglaries of boats, automobiles, and other non-buildings. Ranier, 616 F.3d at 1214.

         As with all enumerated crimes, to assess whether a state conviction for burglary qualifies as a generic crime, the Court can employ two methods. First, the Court must assess the state statute under “the categorical approach.” Howard, 742 F.3d at 1345-46. If that assessment does not end the inquiry, then the Court must determine whether the statute can be assessed under the “modified categorical approach.” Id. Under the “categorical approach, ” courts “compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic' crime-i.e., the offense as commonly understood.” Descamps, 570 U.S. at 257. Under this approach, “[t]he prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. If the statute so qualifies, then this ends the inquiry: the conviction is a violent felony, and the modified categorical approach is not needed. Howard, 742 F.3d at 1345.

         However, if the burglary statute is broader than the elements of the generic crime, the statute itself does not qualify as a predicate offense under the categorical approach. Thus, the court must then determine whether it can apply the “modified categorical approach” to assess whether the defendant's conviction under the statute does qualify as a predicate offense. Id. Courts can use the modified categorical approach in those instances “when a prior conviction is for violating a so-called divisible statute.” Descamps, 570 U.S. at 257. A divisible statute is a statute which “sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to . . . determine which alternative formed the basis of the defendant's prior conviction.” Id.

         To determine which alternative of a divisible statute formed the basis for the prior conviction, a court can assess a limited class of documents including the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shephard v. United States, 544 U.S. 13, 16 (2005). These documents are commonly referred to as “Shephard documents.” If a statute is divisible, the Court can use the Shephard documents to “do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Descamps, 570 U.S. at 257. If the Shephard documents show that the defendant was found guilty under elements of a divisible statute which match elements of the generic offense instead of those which do not, the prior conviction is an ACCA predicate. Howard, 742 F.3d at 1347. In contrast, “a statute is indivisible if it contains ‘a single, indivisible set of elements.'” Id. at 1346 (quoting Descamps, 570 U.S. at 258 & at 257 (defining an indivisible statute as one “‘not containing alternative elements'”). “If a statute is indivisible, a court may not apply the modified categorical approach, and that is the end of the inquiry; the prior conviction cannot qualify as an ACCA predicate regardless of what any Shephard documents may show.” Id.

         In Howard, the Eleventh Circuit assessed whether the defendant's conviction under Alabama's third-degree burglary statute qualified as a generic burglary, and thus, a predicate violent felony under the ACCA. The Eleventh Circuit noted “[t]he elements of generic burglary under the ACCA are: (1) ‘an unlawful or unprivileged entry into, or remaining in, ' (2) ‘a building or other structure, ' (3) ‘with intent to commit a crime.'” Id. at 1348 (quoting Taylor, 495 U.S. at 598). The Eleventh Circuit first determined that the Alabama statute that the defendant in Howard was convicted under did not qualify as a generic burglary under the categorical approach because the elements of the offense were not the same as, or narrower than, those of the generic offense. Id. (citing Ranier, 616 F.3d at 1215). The Howard court then assessed whether the statute was divisible, and therefore, was able to be assessed under the modified categorical approach. The court noted that, under Descamps, the “key to determining divisibility . . . is whether the statute sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile.” Id. (internal citation omitted) (emphasis in original). The Alabama statute contains nothing “suggest[ing] its definition of ‘building' is drafted in the alternative.” Id. “The items that follow each use of the word ‘includes' in the statute are non-exhaustive examples of items that qualify as a ‘structure' and thus count as a ‘building' under . . . § 13A-7-l(2). . . . The statutory definition of ‘building' does not say what is not included. In light of the Descamps decision, illustrative examples are not alternative elements.” Id. (internal citations omitted). Thus, the Eleventh Circuit determined that Alabama's third-degree burglary statute, § 13A-7-7, is a non-generic and indivisible statute, and a conviction under that statute “cannot qualify as a generic burglary under the ACCA.” Id. at 1349.

         In Mathis v. United States, ___U.S.___, 136 S.Ct. 2243 (June 23, 2016), the Supreme Court further clarified how courts should employ the modified categorical approach. The Court held that the fact that a statute contains multiple alternative means of committing the crime does not make the statute divisible, if these means are not alternative elements but rather only factual determinations about an element, and thus, unnecessary to the jury's determination of guilt for the crime. Mathis, ___U.S. at___, 136 S.Ct. at 2251-54. Put another way, the Court held that, when using the modified categorical approach to determine whether a prior conviction is a “violent felony” or “serious drug offense” under the ACCA, a court should focus on the “elements” of the statutory offense rather than on that offense's non-essential “means” of commission. Id.

         II. Crews' Conviction and Sentencing

         On December 8, 2010, a grand jury in this District returned a one-count Indictment alleging that Crews was a convicted felon in possession of a firearm and an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Doc. 1.)[3] The Indictment charged that Crews had accumulated several state felony convictions before his possession of a firearm on October 30, 2010. (Id.) The grand jury specifically listed those prior felonies, including numerous burglary and attempted burglary convictions in Georgia and one burglary conviction in Florida. (Id.) The Government's Penalty Certification filed at the commencement of the case stated that Crews faced a minimum term of imprisonment of fifteen years under the ACCA. (Doc. 2.)

         On June 13, 2011, Crews pleaded guilty before the Honorable Lisa Godbey Wood to the sole charge against him, possession of a firearm by a convicted felon and being an armed career criminal. (Doc. 31.) Before accepting Crews' guilty plea, Judge Wood explained to Crews that, because he was an armed career criminal, he faced a minimum statutory penalty of fifteen years' imprisonment. (Doc. 48, pp. 12, 17-18 (“That is if I accept your guilty plea, I must sentence you to at least fifteen years imprisonment.”).) Crews responded that he understood the penalties involved, and he specifically understood the mandatory minimum penalty. (Id. at pp. 12-13 & 18 (“I mean, if I go to trial, I will lose. I understand that. I was found sleeping in the woods with a pistol in my pocket. So I will take the fifteen years.”).) As part of the plea agreement, the Government agreed that it would not argue for a sentence above the statutory minimum of fifteen years. (Id. at pp. 20-21.)

         Prior to Crews' sentencing hearing, United States Probation Officer Scot Riggs prepared a Pre-Sentence Investigation Report (“PSI”). Probation Officer Riggs laid out Crews' offense conduct and criminal history in detail and calculated Crews' statutory penalties, as well as his advisory Guideline range. The PSI set forth a lengthy list of adult criminal convictions. (PSI, ¶¶ 24-31.) Probation Officer Riggs detailed seven convictions for burglary and three convictions for attempted burglary that Crews obtained in the state courts of Georgia and Florida. (Id. at ¶¶ 27-30.) In Paragraph 20 of the PSI, when calculating Crews' offense conduct, Probation Officer Riggs stated, “As is shown in Part B (Criminal History) below, the defendant has been convicted of seven separate burglary offenses and three separate attempted burglary offenses (see paragraphs 27 through 30). Since the instant offense is a conviction for 18 U.S.C. §§ 922(g)(1) and 924(e), the defendant is an armed career criminal within the meaning of U.S.S.G. § 4B1.4.” (Id. at ¶ 20.) The Probation Officer concluded that Crews' Guideline range was 180 to 210 months' imprisonment. (Id. at ¶ 53.)

         Crews' counsel filed objections to a number of the Probation Officer's conclusions, including the conclusion in Paragraph 20 that Crews must be sentenced under the ACCA due to his burglary convictions. (Addendum to PSI, pp. 3-4.) Crews' counsel questioned whether four of the prior convictions should be considered as separate offenses. He pointed out that all of the burglaries were commercial, not residential, and that Crews was prepared to show that the offenses fell outside of the “‘generic' definition.” (Id.)

         Probation Officer Riggs responded at length to Crews' objections. Specifically, the Probation Officer stated:

The defendant is subject to an enhanced sentence as an armed career criminal because he stands convicted of a violation of 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon) and he has at least three prior convictions for a “violent felony” or “serious drug offense, ” or both, committed on occasions different from one another. 18 U.S.C. § 924(e)(1) and U.S.S.G. § 4Bl.4. Application Note 1 to § 4B 1.4 states that the terms “violent felony” and “serious drug offense” are defined in 18 U.S.C. § 924(e)(2). The offense of “burglary” is specifically enumerated as a “violent felony” for the purposes of sentencing as an armed career criminal.

(Id. at p. 4 (emphasis supplied).) The Probation Officer also explained why Crews' seven separate burglary offenses and three separate attempted burglary offenses over a period of approximately five months qualified as “violent felonies” under the ACCA. Probation Officer Riggs reiterated, “As previously noted, the offense of burglary is specifically enumerated as aviolent felony' for the purposes of the ACCA.” (Id. at p. 5 (emphasis supplied).) Probation Officer Riggs then detailed why Crews' prior convictions met “the elements of generic burglary-unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” (Id. (citing Taylor, 495 U.S. at 599).) The Probation Officer asserted:

The burglary statute at issue in each of the defendant's six prior Georgia convictions (O.C.G.A. § 16-7-1) includes elements which fall outside the scope of generic burglary (e.g., unlawfully entering locations other than buildings or structures, such as vehicles, aircrafts, watercrafts, etc.). Therefore, the Court is authorized to review the charging documents and certain other court documents to determine if a conviction under a “non-generic” burglary statute still qualifies as “burglary” under the ACCA. See Shepard v. United States, 544 U.S. 13, 26 (2005). See also United States v. Ranier, 616 F.3d 1212, 1215(11th Cir. 2010) (“A conviction under a non-generic burglary statute still counts as ‘burglary' under the ACCA if the defendant was actually found guilty of the elements of a generic burglary.”). . . . At least with respect to each of the defendant's six prior Georgia burglary convictions (paragraphs 27, 28, and 29), a review of the charging documents reveals that each of those offenses meet the elements of generic burglary (i.e., Crews unlawfully entered a building or structure with the intent to commit a theft). Therefore, the probation officer maintains that the defendant is an armed career criminal because he stands convicted of a violation of 18 U.S.C. § 922(g) and he has at least three prior convictions for violent felony offenses.

(Addendum to PSI, p. 5 (emphasis supplied).)

         On the eve of the sentencing hearing, Crews' counsel submitted a sentencing memorandum on Crews' behalf. (Doc. 40.) In the sentencing memorandum, counsel argued that sentencing Crews as an armed career criminal under the ACCA, as well as under United States Sentencing Guideline Section 4B1.4, would violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution. (Id.)

         Crews appeared before Judge Wood for a sentencing hearing on February 8, 2012. (Doc. 49.) At that hearing, Judge Wood heard from Crews' counsel, counsel for the Government, and the United States Probation Officer in detail regarding Crews' objections to the PSI. (Id. at pp. 3-28.) This colloquy included discussion amongst Judge Wood, counsel, and the Probation Officer regarding Crews' objections to the Probation Officer's recommendation that Crews be designated as an armed career criminal. (Id. at pp. 14-26.)

         Crews' counsel began the discussion by stating that he understood that, under Taylor, Crews' numerous convictions for burglary of commercial buildings qualified as generic burglaries under the ACCA. (Id. at pp. 14-15.) However, counsel reiterated his arguments from his sentencing memorandum that the ACCA's application to Crews' burglaries of commercial buildings violated the Due Process, Equal Protection, and Cruel and Unusual Punishment Clauses. (Id. at pp. 15-19.)

         In response, counsel for the Government cited at length from the Supreme Court's holding in Taylor. (Id. at pp. 20-21.) Counsel explained that, under Taylor, a person commits a “burglary” for purposes of Section 924(e) if “he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” (Id. at p. 21.) The Government's counsel then stated that Crews' burglary and attempted burglary convictions of commercial buildings fall squarely within the Supreme Court's definition of burglary. (Id. at pp. 21-22.)

         Judge Wood then discussed Crews' burglary convictions with Probation Officer Riggs. Judge Wood stated that the Court “understand[s] that there are ten to choose from when we are talking about burglary in Mr. Crews' case. There are seven actual burglary convictions and three attempted burglary convictions.” (Id. at p. 23.) After Probation Officer Riggs confirmed that understanding, Judge Wood asked Probation Officer Riggs, “In looking at the Shephard documents, walk me through which ones qualify under Georgia's non-generic burglary statute as predicate offenses for armed career criminal purposes.” (Id.) In a case-by-case colloquy with Judge Wood, Officer Riggs then confirmed that the Shepard documents established that Crews entered buildings without authority and with intent to commit a crime on ten different occasions and that he damaged the roofs of several buildings during six of his burglaries and attempts. (Id. at pp. 23-25.) Judge Wood then asked Crews' counsel if he disputed any of these instances of burglary, and counsel stated that he did not and that “as to what the indictments say as to what Mr. Crews pled guilty to, I have reviewed them, and I do not dispute those facts as alleged, Your Honor, at least as to the entry of a structure, Judge.” (Id. at pp. 25-26.)

         Judge Wood then overruled Crews' objection to Paragraph 20 of the PSI and found “that the credible evidence shows that the armed career criminal designation is appropriate and the enhancement is correctly applied in Mr. Crews' case.” (Id. at p. 26.) She further concluded that she did “not find it tempting” to find that the ACCA is unconstitutional as applied to Crews. (Id.) Judge Wood adopted the findings of facts and conclusions of the PSI and overruled Crews' objections. (Id. at p. 28.) She specifically overruled Crews' questions of Guideline applications with respect to Paragraphs 15, 20, 24, 25, and 35 and held that she “concur[red] with the findings in the PSI and its addendum.” (Id. (emphasis ...


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