United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
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.
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.)
timely filed his § 2255 motion in July 2016, less than
one year after his conviction became final. 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. (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
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.)
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).
MINNESOTA FIRST- AND SECOND-DEGREE ASSAULT
Eighth Circuit Court of Appeals has held that Minnesota
second-degree assault, Minn. Stat. § 609.222 (2016),
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),
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). 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).
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).
MINNESOTA SIMPLE ROBBERY
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
Eighth Circuit Precedent
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).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 ...