United States District Court, D. Oregon, Portland Division
E. Jones, U.S. District Court Judge.
1998, a jury found defendant Ernest Johnson, Jr. guilty of
three counts: armed bank robbery in violation of 18 U.S.C.
§ 2113(a) and (d) (Count 1); possession of a firearm in
connection with that robbery 18 U.S.C. § 924(c) (Count
2); and, being a felon in possession of a firearm in
violation of 18 U.S.C. § 924(g) (Count 3). (#76)
Following the trial, Probation prepared a presentence report
(PSR) which calculated defendant's offense level at 34
with criminal history category VI, yielding a guideline range
of 262 -327 months. Probation determined that on Count 1,
defendant qualified as a Career Offender pursuant to United
States Sentencing Guidelines (U.S.S.G) §§ 4B1.1 and
4B1.2 and on Count 3, for the enhanced penalties under the
Armed Career Criminal Act (ACCA).
Probation prepared the PSR, defendant's criminal history
included a number of prior convictions
• 1969 Oregon Robbery by Force and Violence, Unarmed
• 1970 Oregon Assault and Robbery While Armed
• 1982 Oregon Burglary II
• 1984 California for Robbery of an Inhabited Dwelling
• 1993 Oregon for Robbery I, Burglary I, Kidnapping II,
and Assault II
adopted the Guideline calculations and sentenced defendant to
300 months in prison and five years of supervised release on
Count 1, 60 months mandatory minimum consecutive sentence and
five years of supervised release on Count 2, and 300 months
in prison and five years of supervised release on Count 3 to
be served concurrently with the sentence imposed on Count 1.
Defendant received a total sentence of 360 months in prison
and five years of supervised release (#92, 93).
defendant was serving his sentence, the United States Supreme
Court issued a ruling invalidating the ACCA residual clause.
Johnson v. United States, 135 S.Ct. 2551 (2015).
Defendant filed a motion to vacate or correct his sentence
pursuant to 28 U.S.C. § 2255, based on Johnson
and subsequent case law. (# 170) The parties filed a
stipulation in which they agreed to litigate whether
defendant is still a Career Offender, whether he still
qualifies for the enhanced penalties under the ACCA, and
whether he should still receive a sentence of 360 months in
prison, followed by five years of supervised release. (#184)
direction, Probation prepared a new PSR which concluded that
defendant is no longer a Career Offender and is no longer
eligible for the enhanced penalties under the ACCA.
Probation's new calculations result in a total offense
level of 24 with criminal history category VI for a guideline
range of 110-125 months (with a maximum of 120 months on
Count3), plus a consecutive sentence of 60 months on Count 2.
The government disagrees with Probation's conclusions
that defendant no long qualifies as a Career Offender and is
ineligible for the ACCA sentencing enhancement. At the time
of the resentencing hearing, defendant had served more than
228 months in prison.
government has the burden to prove that a prior conviction
qualifies as a career offender predicate. United States