United States District Court, D. Minnesota
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. §
RICHARD H. KYLE United States District Judge
Defendant, Corey James Benjamin, has filed a pro se
Motion for reconsideration, based on the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), which held unconstitutional the residual clause of
the Armed Career Criminal Act (“ACCA”). Doc. No.
64. After careful consideration of Benjamin's Motion, the
Government's response, and the law and facts applicable
to this case, the Motion for reconsideration will be denied
for the reasons that follow.
Indictment filed on September 12, 2011, charged Defendant
with being a felon in possession of a firearm. The case was
the result of investigation by the Mille Lacs Tribal Police
Department which responded to a report of shots fired on the
Mille Lacs Indian Reservation on July 24, 2011. Presentence
Report (“PSR”) ¶ 5. Officers located several
spent 9mm shell casings near the home of Tracy Harrington and
subsequently located the Defendant behind a neighboring home.
Benjamin was identified by several witnesses as having fired
a handgun. A gunshot residue test on Benjamin was positive.
Benjamin then admitted to law enforcement that he had fired
the weapon and disposed of it in a wooded area behind the
parties' plea agreement, Defendant agreed to plead guilty
to Count 1 alleging felon in possession of a firearm. Doc.
No. 24, Plea Agreement ¶ 2 (filed under seal). Defendant
further agreed that he was subject to the Armed Career
Criminal provision found in Title 18 U.S.C.
§ 924(e). Doc. No. 24, Plea Agreement
¶ 6. The PSR documented the following crimes in
violation of Minnesota state law: second degree assault in
2004; fifth degree assault in 2008; fifth degree assault in
2009; and third degree burglary in 2009. PSR ¶ 9. A PSR
was prepared by the United States Probation Office.
determined that because Defendant had at least three prior
convictions for violent felonies, he was an Armed Career
Criminal under the ACCA, subject to a statutory minimum term
of imprisonment of 15 years and a Guidelines offense level of
30. This Court and the parties agreed with these assessments.
See Sentencing Transcript (“Tr.”) at
2-3. Defendant did not object to the PSR and acknowledged
that “Defendant's criminal history subjects him to
§ 924(e).” Doc. No. 30,
Def's. Sentencing Mem. at 1. This Court adopted the PSR,
found Defendant to be an Armed Career Criminal, and imposed a
sentence of 180 months. Tr. at 9. Defendant filed no appeal.
moved to vacate his sentence after the Supreme Court
invalidated the residual clause within 18 U.S.C. §
924(e) in Johnson v. United States. This Court
denied Defendant's petition. See Doc. No. 60.
Defendant now moves this Court to reconsider this ruling
based upon the holding in McArthur v. United States,
F.3d, 2017 WL 744032 (8th Cir. Feb. 23, 2017), which
invalidated Minnesota's Third Degree Burglary as a
predicate offense for purposes of the ACCA's mandatory
minimum sentence. Defendant also relies upon United
States v. Headbird, 832 F.3d 844 (8th Cir. 2016) in
support for his request for reconsideration.
to reconsider require the “courts' prior
permission, ” which will be granted only upon a showing
of “compelling circumstances.” D. Minn. LR
7.1(j); see United States v. Fenner, Crim.
No. 06-211 (01) (2012 WL 2884988, at *1 (D. Minn. July 13,
2012) (Davis, C.J.) (applying Local Rule 7.1 to Section 2255
Motions for reconsideration serve a limited function: to
correct manifest errors of law or fact or to present newly
discovered evidence . . . Nor should a motion for
reconsideration serve as the occasion to tender new legal
theories for the first time.
Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413
(8th Cir. 1988). Further, a motion to reconsider should not
be employed to re-litigate old issues but rather to
“afford an opportunity for relief in extraordinary
circumstances.” Dale and Selby Superette &
Deli v. U.S. Dep't of Agric., 838 F.Supp.
1346, 1348 (D. Minn. 1993).
time he violated 18 U.S.C. § 922(g),
Defendant had at least three prior felony convictions for
crimes that were violent felonies under the elements clause
of the ACCA, that is, crimes that had “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). These were: second degree assault in 2004;
fifth degree assault in 2008; and fifth degree assault in
2009. PSR ¶¶ 35, 48-51. These three felony
convictions remain valid predicate offenses for purposes of
the ACCA's mandatory minimum sentence.
these aforementioned assault offenses (assault in the second
degree and assault in the fifth degree) requires an
“assault”. Under Minnesota law,
“assault” is defined as: “(1) an act done
with intent to cause fear in another of immediate bodily harm
or death; or (2) the intentional infliction of or attempt to
inflict bodily harm upon another.” Minn. Stat. §
609.02, subd. 10. In United States v. Schaffer, 818
F.3d 796, 798 (8th Cir. 2016), the Eighth Circuit held that a
conviction for committing an “act with intent to cause
fear in another of immediate bodily harm or death” in
violation of Minnesota Statutes Section 609.2242, subd. 1(1)
qualified as a violent felony as defined in the ACCA's
force clause, 18 U.S.C. § 924(e)(2)(B)(i), because the
offense “ha[d] as an element the threatened use of
physical force against the person of another.”
(internal quotation marks omitted). A defendant who
intentionally inflicts bodily harm is by definition using
“physical force” capable of causing that harm.
Roberts v. Holder, 745 F.3d 928, 931 (8th Cir.
2014). Thus, Minnesota felony fifth degree assault
necessarily is a violent felony under the ACCA. See
18 U.S.C. § 924(e)(2)(B)(i).
second-degree assault statute under which Defendant was
convicted makes it a crime to “assault another with a
dangerous weapon.” Minn. Stat. § 609.222, subd. 1
(1994); Id. (2001). To be convicted of Minnesota
second degree assault, a defendant must use a dangerous
weapon to intentionally cause another person to fear
immediate bodily harm or death or to intentionally inflict or
attempt to inflict bodily harm on another person. Minn. Stat.
§§ 609.02, subd. 10, 609.222, subd. 1. Minnesota
defines a “dangerous weapon” as “any
firearm, ” any weapon “capable of producing death
or great bodily harm, ” any “combustible or
flammable liquid or other device or instrumentality that, in
the manner it ...