United States District Court, D. Minnesota
S. Ueland, Esq., United States Attorney's Office,
Minneapolis, MN, on behalf of Plaintiff.
Dante Moreno, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Aaron Dante Moreno's
(“Moreno”) pro se Motion to Vacate under 28
U.S.C. § 2255 [Criminal Docket No. 84] (“2255
Motion”). For the reasons set forth below,
Moreno's Motion is denied.
August 9, 2011, Moreno pled guilty to Count 1 of the
Indictment [Docket No. 1], which charged him with felon in
possession of a firearm, a violation of 18 U.S.C. §
922(g)(1). See Min. Entry [Docket No. 31]. The
sentence for a conviction under § 922(g)(1) is not more
than ten-years' imprisonment. 18 U.S.C. § 924(a)(2).
However, under the Armed Career Criminal Act
(“ACCA”), an individual who violated §
924(g) and has three previous convictions for a violent
felony, a serious drug offense, or both, is subject to a
fifteen-year minimum sentence. § 924(e)(1). The
presentence report (“PSR”) recited that Moreno
had six prior felony convictions that appeared to be
predicate offenses for purpose of the ACCA, two each for
burglary, assault, and terroristic threats.
time Moreno was sentenced, the ACCA defined a violent felony
as any crime punishable by imprisonment for a term exceeding
one year that: (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person of another”; (2) “is burglary, arson,
or extortion, [or] involves use of explosives”; or (3)
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” §
924(e)(2)(B). These definitions fell into three respective
categories: (1) the force clause; (2) the enumerated clause;
and (3) the residual clause. According to Moreno's PSR,
his prior felony convictions implicate the force, the
enumerated, and the residual clause of the ACCA; the PSR did
not, however, expressly specify which clause of the
ACCA's definition of “violent felony”
encompassed the predicate offenses.
sentencing, the PSR was adopted without change and without
further elaboration on Moreno's six ACCA predicate
offenses. Based on the PSR's determination that Moreno
was an armed career criminal pursuant to § 924(e)(2),
the Court sentenced Moreno to the mandatory minimum sentence
of 180 months. See Min. Entry [Docket No. 42].
Moreno did not directly appeal his sentence.
November 26, 2012, Moreno filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence.
See 2255 Mot. [Docket No. 47]. Moreno argued that 18
U.S.C. § 922(g) was unconstitutional in light of
National Federation of Independent Business v.
Sebelius, 132 S.Ct. 2566 (2012), and that he received
ineffective assistance of counsel. This § 2255 motion
did not raise any challenges to his prior felony convictions.
On January 31, 2013, that § 2255 motion was denied .
See Mem. Op. Order [Docket No. 53].
2015, the United States Supreme Court held that the
ACCA's residual clause-defining a violent felony as one
that “otherwise involves conduct that presents a
serious potential risk of physical injury to
another”-is unconstitutionally vague. See Johnson
v. United States, 135 S.Ct. 2551, 2563 (2015)
(“[I]mposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process.”). In
2016, the Supreme Court held that Johnson announced
a new substantive rule of constitutional law that applies
retroactively to cases on collateral appeal. Welch v.
United States, 136 S.Ct. 1257 (2016).
Johnson and Welch, Moreno's prior
felony convictions falling under the ACCA's residual
clause cannot be used as predicate offenses for enhanced
sentencing under § 924(e)(1). The Johnson
decision, however, did not disturb the legality of the force
and enumerated clauses of the ACCA. 135 S.Ct. at 2563. Thus,
an enhanced sentence due to at least three prior felony
convictions falling within those two clauses is lawful and
not impacted by Johnson.
16, 2016, Moreno sought permission from the Eighth Circuit
Court of Appeals to file a successive § 2255 Motion.
See Mot. Vacate Under § 2255 [Docket No. 81].
Moreno argued that in light of Johnson, he no longer
qualifies as an armed career criminal. See id. The
Eighth Circuit granted Moreno's request on December 1,
2016. See J. USCA [Docket No. 80]. On December 12,
2016, Moreno filed this § 2255 Motion.