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United States v. Shelby

United States District Court, D. Oregon, Portland Division

June 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ALAN LAWRENCE SHELBY, Defendant.

          OPINION AND ORDER

          Robert E. Jones, United States District Court Judge

         This matter comes before the Court on Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C, § 2255 [#31]. For the reasons set forth below, I DENY Defendant's Motion.

         BACKGROUND

         In 1995, defendant Alan Shelby (Shelby) pleaded guilty to a superseding information that charged him with, among other things, being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Prior to his guilty pleas in this case, Shelby had four prior Oregon state convictions and one federal conviction that the government relied on at sentencing in pursuing the ACCA sentencing enhancements: three Robbery I convictions in Lane County; a Robbery II conviction in Crook County; and, a Conspiracy to Manufacture, Possession With Intent to Distribute and Distribution of Methamphetamine conviction in Oregon Federal District Court. I sentenced Shelby to 180 months on the felon in possession charge pursuant to the ACCA mandatory minimum sentence. Shelby did not appeal his conviction or sentence.

         In 2015, the United States Supreme Court held that "imposing an increased sentence under the residual clause of [ACCA] violates the Constitution's guarantee of due process." United States v. Johnson (Johnson II), 135 S.Ct. 2551, 2563 (2015). A year later, the Court made its ruling retroactive. Welch v. United States, 136 S.Ct. 1257 (2016). Thereafter, Shelby filed this Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255. Specifically, Shelby contends that once the Supreme Court invalidated the residual clause of the ACCA, his three prior Robbery I convictions no longer qualify as "violent felonies" under the ACCA. Thus, he now lacks the three prior "violent felony" convictions required for the imposition of the ACCA sentencing enhancements. He asks to be resentenced.

         In response, the Government argues that Shelby was sentenced pursuant to the "force clause" of the ACCA and not the now invalid residual clause, and that Shelby's Robbery I convictions are "violent felonies" pursuant to the ACCA.

         DISCUSSION

         1. Sentencing Enhancements Under the ACCA

         A person who has previously been convicted of "a crime punishable for a term exceeding one year" may not possess or receive any firearm or ammunition, "which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g) A person who violates § 922(g) and has three qualifying prior convictions for a violent felony or serious drug offense is subject to imprisonment of not less than 15 years, regardless of the statutory maximum for the offense. Under § 924(e)(2)(B), the term "violent felony" means any crime 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" In Johnson II, the Supreme Court held that the last portion of § 924(e)(2)(B)(ii), commonly known as the residual clause, is void for vagueness. Thus, in order for a person to be subject to the ACCA enhancement the prior felony convictions must either include the use, attempted use or threatened use of physical force ("force clause") or be burglary, arson, extortion or one that involves the use of explosives ("enumerated list".) Three of Shelby's prior convictions are for Robbery I and if Robbery I is not a "violent felony" under the ACCA, then he will not have three qualifying prior convictions. As Robbery I is not included in the enumerated list, I must determine if Shelby was sentenced pursuant to the residual clause, and if so, whether his convictions qualify as a violent felonies under the force clause for purposes of the ACCA.

         2. Was Shelby sentenced under the residual clause?

         The government argues that Shelby has not met his burden to prove that he was sentenced pursuant to the now unconstitutional residual clause. See, Simmons v. Blodgett, 110 F.3d 39 (9th Cir. 1997). Neither party points to any evidence in the record to prove I relied on the residual clause when imposing the sentence. "[W]hen it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant's § 2255 claim 'relies on' the constitutional rule announced in Johnson II." United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017). But, "it may be possible to determine that a sentencing court did not rely on the residual clause-even when the sentencing record alone is unclear-by looking to the relevant background legal environment at the time of sentencing." Geozos, 870 F.3d at 896.

         For that, the government points to an unpublished Ninth Circuit case, United States v. Varnado, 952 F.2d 1400 (9th Cir. 1992), in which, three years prior to my sentencing of Shelby, the Ninth Circuit reversed a sentence imposed by Judge Redden for the identical crime. The Court stated: "Varnado's prior Oregon conviction[] for first-degree robbery . . . qualif[ies] as [a] violent felon[y] under the Armed Career Criminal Act because [it] ha[s] 'as an element the use, attempted use, or threatened use of physical force against the person of another....'18 U.S.C. § 924(e)(2)(B)(i)" I am not persuaded by the government's argument. I would have been aware of the unpublished Ninth Circuit opinion in one of two instances: if the opinion resolved one of my cases; or, if at the time of sentencing, one of the parties brought the opinion to my attention, As Vardano fits neither of these situations, pursuant to Geozos, I must assume the sentencing relied on the residual clause. However, that assumption is of no help to Shelby because, as set out in the next section, I find Robbery I constitutes a "violent felony" under the ACCA.

         3. Determining Whether Robbery I Constitutes a ...


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