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United States v. Erickson

United States District Court, D. Oregon

May 9, 2017

UNITED STATES OF AMERICA
v.
SHAWN PATRICK ERICKSON, Defendant.

          OPINION AND ORDER

          Michael McShane, United States District Judge

         Pursuant to 28 U.S.C. § 2255, defendant Shawn Patrick Erickson moves to vacate or correct his 15 year sentence. In 2010, Judge Owen M. Panner sentenced Erickson to 15 years pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).[1]

         Generally, 18 U.S.C. § 922(g) prohibits a felon like Erickson from possessing a firearm. Ordinarily, ten years is the maximum term of imprisonment for a violation of § 922(g). However, if a felon with three previous convictions for “a violent felony or a serious drug offense” violates § 922(g), the ACCA mandates a sentence of at least 15 years. 18 U.S.C. § 924(e)(1).

         Erickson argues that after the Supreme Court struck down the ACCA's residual clause, he no longer has the three requisite convictions required for an enhanced sentence under the ACCA. Therefore, Erickson argues his 15 year sentence is unconstitutional because it exceeds the ten year maximum sentence under § 922(g). In deciding this issue, I must determine whether an Oregon conviction for Robbery III has as an element the use of “physical force against the person of another” and thus constitutes a “violent felony” under the ACCA. § 924(e). I agree with the three other Oregon district judges to consider this issue and conclude Oregon's Robbery III does not qualify as a “violent felony” under the ACCA.

         DISCUSSION

         The parties agree that if Oregon's Robbery III is not a violent felony under the ACCA, Erickson lacks the requisite prior convictions necessary for the ACCA's 15 year mandatory minimum. In Oregon, as relevant here:

(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS 164.135 the person uses or threatens the immediate use of physical force upon another person with the intent of:
(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking;

ORS 164.395(1).

         As noted, a felon in possession who violates 18 U.S.C. § 922(g) is subject to a 15 year mandatory minimum if the felon has three previous convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). Under the ACCA:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . 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 ...

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