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United States v. Willis

United States District Court, D. Minnesota

April 6, 2017

United States of America, Plaintiff,
Michael Edward Willis, Defendant.

          LeeAnn K. Bell, United States Attorney counsel for plaintiff.

          James S. Becker, Office of the Federal Defender, counsel for defendant.


          David S. Doty, Judge United States District Court

         This matter is before the court upon the motion by defendant Michael Edward Willis to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants the motion.


         On May 31, 2011, Willis pleaded guilty to Armed Career Criminal in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The presentence investigation report (PSR) concluded that Willis was subject to the fifteen-year mandatory minimum sentence imposed by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), because he had four previous violent felonies: (1) Michigan unarmed robbery; (2) Minnesota first-degree burglary; (3) Minnesota simple robbery; and (4) Michigan breaking and entering. On November 1, 2011, the court sentenced Willis to 180 months' imprisonment, the statutory minimum, and Willis did not object or appeal his sentence.

         On November 30, 2012, Willis filed his first pro se motion under 28 U.S.C. § 2255, which the court denied on March 19, 2013. See ECF Nos. 49, 58. On June 16, 2016, Willis filed a second pro se § 2255 motion, [1] arguing that his sentence is unconstitutional in light of United States v. Johnson, 135 S.Ct. 2551 (2015).[2] See ECF No. 71. The government opposes the motion.


         I. Availability of Relief Under Johnson

         Under the ACCA, a defendant with three or more previous convictions for a “violent felony” faces at least fifteen years' imprisonment. See 18 U.S.C. 924(e). A “violent felony” is any crime that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause];” or (2) “is burglary, arson, or extortion, involves the use of explosives [the enumerated-offense clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].” 18 U.S.C. §§ 924(e)(2)(B)(i)-(ii). In Johnson, the Supreme Court struck down the residual clause as unconstitutionally vague. See Johnson, 135 S.Ct. at 2563.

         Willis argues that his sentence is unconstitutional because his four predicate offenses were based on the residual clause. The government responds that Willis is not entitled to relief because he has not shown that the court relied on the residual clause in sentencing him. See In re Moore, 830 F.3d 1268, 1273 (8th Cir. 2016) (“[T]he district court cannot grant relief in a § 2255 proceeding unless the movant shows ... that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence.”).

         Although Willis must show he is entitled to relief under Johnson, he need not meet the insurmountable burden of reading the court's mind. At sentencing, neither the court nor the PSR stated which clause qualified Willis's felonies as predicate offenses. Further, neither party presented evidence or argument on the issue. Under these circumstances, the court concludes that it is possible it relied upon the residual clause at sentencing, and Willis has shown he is entitled to relief. See Bevly v. United States, No. 4:16CV965, 2016 WL 6893815, at *1 (E.D. Mo. Nov. 23, 2016) (“In a situation where the Court cannot determine under what clause the prior offenses were determined to be predicate offenses, the better approach is for the Court to find relief is available, because the Court may have relied on the unconstitutional residual clause.”); Villanueva v United States, 191 F.Supp.3d 178, 184 (D. Conn. 2016) (“The court considers, among other facts, the absence of any discussion in court concerning under which of the ACCA subsections [defendant's] assault convictions qualified, as strong circumstantial evidence that the court used ... the broad-sweeping Residual Clause.”). The court, however, must examine whether Willis's felonies remain predicate offenses under either the force or enumerated-offense clauses. If so, the court's reliance on the residual clause was harmless, and Willis is not entitled to relief. See United States v. Ladwig, 192 F.Supp.3d 1153, 1159 (applying harmless error analysis to a § 2255 claim under Johnson).

         II. Predicate Offenses

         A. 1985 Michigan ...

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