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United States v. Taylor

United States District Court, D. Minnesota

February 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DERRICK TAYLOR, Defendant. Civil No. 16-2498 (JNE)

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         Defendant Derrick Taylor filed a motion under 28 U.S.C. § 2255, seeking to vacate his current sentence on the basis that he does not have three prior violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). (See Dkt. Nos. 65, 76.) The Government opposed the motion. (See Dkt. No. 74.) Having reviewed Taylor's § 2255 motion, the relevant law, and the record, the Court denies the motion.

         On September 4, 2015, Taylor pled guilty to the crime of Felon in Possession of a Firearm, see 18 U.S.C. §§ 922(g)(1), 924(e)(1). (See Dkt. No. 43.) Taylor also agreed that he was subject to the ACCA's sentence enhancement provisions because he has three prior violent felony convictions. See § 924(e)(1). A violent felony is 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 other; 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 . . . .

§ 924(e)(2)(B). At sentencing, the Court determined that the advisory imprisonment range under the United States Sentencing Guidelines, in view of the offense and Taylor's criminal history, was 188-235 months. (See Dkt. No. 61.) The Court granted a downward variance and imposed 180 months' imprisonment-the mandatory minimum sentence under § 924(e)(1). (See Dkt. No. 60.)

         Taylor timely filed his § 2255 motion in July 2016, less than one year after his conviction became final.[1] At sentencing, Taylor had five prior adult felony convictions. Four convictions for crimes the Court determined to be violent arose from three discrete incidents. (See Dkt. No. 50.) Taylor argues that none of these convictions is properly considered an ACCA predicate offense. (See Dkt. No. 65.) The offenses in question are: (1) a 2006 conviction for first-degree assault, Minn. Stat. § 609.221; (2) a 2006 conviction for simple robbery, Minn. Stat. § 609.24; and (3) two 2009 convictions for second-degree assault, Minn. Stat. § 609.222.[2] (See Dkt. No. 65.) Taylor points to the decision in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), which held that the “residual clause” of the definition of violent felony is unconstitutionally vague. (See Dkt. No. 65.) Now that the residual clause is no more, he argues his prior crimes are not violent felonies, as currently defined. (See id.) Thus, he claims that his sentence must be vacated. (Id.)

         The Government responds that despite the decision in Johnson, all of the above-listed prior convictions fall within violent felony's first sub-definition-the “elements” or “force” clause. (See Dkt. No. 74.) Taylor replies that at the very least, his simple robbery conviction does not fall within the force clause. (See Dkt. No. 76.)

         I. PHYSICAL FORCE

         When determining whether a crime falls within the force clause, courts consider: (1) the language of the statute providing for the crime, and (2) the applicable binding court precedent interpreting the elements of the crime. See United States v. Bell, 840 F.3d 963, 965-66 (8th Cir. 2016). The force clause requires physical force, which is “force exerted by and through concrete bodies, ” not “intellectual force or emotional force.” Johnson v. United States (Curtis Johnson), 559 U.S. 133, 138-39 (2010). The degree of force required is more than “the merest touching, ” and instead “force capable of causing physical pain or injury.” Id. at 139-140. For example, “a slap in the face” is sufficient because it requires a degree of force capable of inflicting pain. Id. at 143. Other examples include hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling; “[n]one of [these] actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” United States v. Castleman, 134 S.Ct. 1405, 1421 (2014) (Scalia, J., concurring in part and in the judgment); see also United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017) (recognizing Justice Scalia's interpretation as authoritative because he wrote the Curtis Johnson opinion); United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016) (applying Justice Scalia's interpretation in the same context).

         II. MINNESOTA FIRST- AND SECOND-DEGREE ASSAULT

         The Eighth Circuit Court of Appeals has held that Minnesota second-degree assault, Minn. Stat. § 609.222 (2016), [3] falls within the force clause. See United States v. Lindsey, 827 F.3d 733, 740 (8th Cir. 2016). First-degree assault, Minn. Stat. § 609.221, subd. 1 (2016), [4]employs almost identical language to that of second-degree assault, but requires the infliction of “great bodily harm.” Great bodily harm is “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (2016).[5] Both first- and second-degree assault plainly require as an element the use, attempted use, or threatened use of physical force capable of inflicting pain or injury. See United States v. Salido-Rosas, 662 F.3d 1254, 1256-57 (8th Cir. 2011) (“[C]ausing or attempting to cause bodily injury or making another person fear imminent bodily harm necessarily requires using, attempting to use, or threatening to use physical force.”); see also United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (holding that Minnesota felony domestic assault, which requires an act causing fear of immediate bodily harm or death, is a violent felony).

         To the extent Taylor argues that the definition of “bodily harm” renders Minnesota assault crimes divisible, the Court determines that the definition Taylor refers to is inapplicable to Taylor's two assault convictions because those crimes require “great” or “substantial” bodily harm. See §§ 609.221, 609.222. Taylor's first- and second-degree assault convictions are violent felonies. See 18 U.S.C. § 924(e)(1).

         III. MINNESOTA SIMPLE ROBBERY

         Taylor devotes most of his argument to the assertion that Minnesota simple robbery does not fall within the force clause. (See Dkt. No. 76.) The Eighth Circuit has determined that it does. See United States v. Raymond, 778 F.3d 716, 717 (8th Cir. 2015); United States v. Johnson (Samuel Johnson), 526 F.App'x 708, 711 (8th Cir. 2013) (unpublished); see also United States v. Fogg, 836 F.3d 951, 953, 956 (8th Cir. 2016) (affirming sentence enhancement when the district court determined that Minnesota simple robbery is a predicate offense, and the appeal did not dispute this determination); United States v. Armstrong, 554 F.3d 1159, 1164, 1166 (8th Cir. 2009) (same). Nevertheless, in support of his argument, Taylor cites three cases: United States v. Pettis, No. 15-CR-233 (PJS/FLN), 2016 WL 5107035, at *2-3 (D. Minn. Sept. 19, 2016), United States v. Eason, 829 F.3d 633, 641-42 (8th Cir. 2016), and United States v. Bell, 840 F.3d 963, 965-66 (8th Cir. 2016). Taylor argues that Minnesota simple robbery is similar to the robbery crimes in Eason (Arkansas) and Bell (Missouri). (See Dkt. No. 76.) Taylor asks this Court to apply Pettis's reasoning and find-contrary to Eighth Circuit precedent-that Minnesota simple robbery is not a violent felony. For the reasons that follow, the Court is not persuaded.

         A. Eighth Circuit Precedent

         In 2009, the Eighth Circuit in United States v. Sawyer held that Arkansas robbery is a “crime of violence” for the purposes of U.S.S.G. § 4B1.2(a)(1).[6]See588 F.3d 548, 556 (8th Cir. 2009). The Eighth Circuit referred to that holding when, in 2013, it determined that Minnesota simple robbery is a violent felony. See United States v. Johnson (Samuel Johnson), 526 F.App'x 708, 711 (8th Cir. 2013) (unpublished), rev'd and remanded on other grounds,135 S.Ct. 2551 (2015). In Raym ...


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