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United States v. Brandsgaard

United States District Court, D. Minnesota

April 23, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
TROY ALLEN BRANDSGAARD, Defendant.

Michelle E. Jones, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN., for plaintiff.

Katherine Menendez, Assistant Federal Defender, OFFICE OF THE FEDERAL DEFENDER, Minneapolis, MN., for defendant.

ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255

JOHN R. TUNHEIM, District Judge.

Petitioner Troy Allen Brandsgaard pled guilty to a charge of aiding and abetting felon in possession of a firearm on May 4, 2005, and is currently serving a sentence of 180 months, followed by a supervised release term of three years. Brandsgaard moved to vacate his sentence pursuant to 28 U.S.C. § 2255 on June 20, 2014. His motion relies on the United States Supreme Court's ruling in Descamps v. United States, 133 S.Ct. 2276 (2013). Because Descamps did not announce a newly recognized right, the ruling does not provide additional time for Brandsgaard to appeal his conviction. Brandsgaard's habeas petition was filed more than one year after his conviction became final. Therefore, the Court will deny Brandsgaard's motion.

BACKGROUND

The United States filed a superseding indictment against Brandsgaard on January 3, 2005, charging him with two counts of aiding and abetting a felon in possession of a firearm and one count of aiding and abetting possession of stolen firearms. (Superseding Indictment, Jan. 3, 2005, Docket No. 33.) Brandsgaard pled guilty, as part of a plea agreement, to aiding and abetting a felon in possession of firearms after having been convicted of three violent offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (Plea Agreement ¶ 1, May 4, 2005, Docket No. 93.) On November 17, 2005, the Court sentenced Brandsgaard to 180 months imprisonment, followed by three years of supervised release. (Sentencing J., Jan. 4, 2006, Docket No. 104.) Brandsgaard did not file a direct appeal.

For sentencing purposes, Brandsgaard was determined to be an "armed career criminal" due to several previous offenses. The Armed Career Criminal Act ("ACCA") holds that a person qualifies as an armed career criminal if they have three previous convictions for violent felonies or drug convictions. 18 U.S.C. § 924(e)(1). Brandsgaard's status under the ACCA was based in part on convictions for third degree burglary, escape, and second degree assault. (Superseding Indictment at 1.) The Presentence Investigation Report also identified a terroristic threats conviction as an additional predicate offense.

Brandsgaard filed this motion to vacate his sentence under 28 U.S.C. § 2255 on June 20, 2014. (Mot. to Vacate Sentence Under 28 U.S.C. § 2255 ("Mot. to Vacate"), June 20, 2014, Docket No. 122.) In his motion, Brandsgaard argues that his sentence was improperly enhanced under the ACCA, because his terroristic threats and escape offenses no longer qualify as "violent felonies" under the ACCA. (Id. at 1-2, 7-22.)

ANALYSIS

I. STANDARD OF REVIEW

Section 2255 allows a federal prisoner a limited opportunity to seek postconviction relief on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).

II. DESCAMPS AND BRANDSGAARD'S SENTENCE

Brandsgaard filed this § 2255 motion more than eight years after his conviction and within one year of the Supreme Court's decision in Descamps. The Antiterrorism and Effective Death Penalty Act ("AEDPA") restricts habeas corpus relief in this case, requiring that the petition be filed within one year of the conviction, or within one year of the Supreme Court recognizing a new right that the prisoner now asserts. See 28 U.S.C. § 2255(f)(1), (f)(3). Under 28 U.S.C. § 2255(f)(1), the initial time for Brandsgaard to file a habeas petition expired in 2006, one year after Brandsgaard's conviction became final.[1]

Brandsgaard asserts that his § 2255 motion is timely, because it was filed within one year of the Supreme Court's decision in Descamps, which Brandsgaard maintains created a newly recognized right that is retroactively applicable to cases on collateral review. Specifically, Brandsgaard argues that Descamps established a new rule of law by drawing "a clear distinction between divisible statutes, which permit further inquiry, and indivisible statutes, which do not." (Mot. to Vacate at 5.) The Court concludes, however, that the decision in Descamps did not announce a new right. Rather, it reiterated that the distinction between divisible and indivisible statutes matters for the purposes of ACCA determinations, which is a distinction ...


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