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United States v. Oslund

United States District Court, D. Minnesota

October 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD ASHTON OSLUND, Defendant.

          Nathan P. Petterson, Assistant United States Attorney, for plaintiff.

          Robert D. Richman, for defendant.

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          JOHN R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT

         Petitioner Richard Ashton Oslund is currently serving a life sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(c)(1)(A), (e)(1), (j)(1). Oslund seeks to vacate the sentence under 28 U.S.C. § 2255, arguing that the Court imposed an illegal sentence under Johnson v. United States, 135 S.Ct. 2551 (2015), because Oslund's previous Minnesota second-degree burglary conviction is not a “violent felony.” The Court will deny Oslund's motion.

         BACKGROUND

         On October 26, 2004, a jury found Oslund guilty of robbery affecting interstate commerce in violation of 18 U.S.C. § 1951 (“Count I”), murder with a firearm during a robbery affecting interstate commerce in violation of 18 U.S.C. § 924 (c)(1)(A), (j)(1) (“Count II”), and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g), 924(e) (“Count III”). United States v. Oslund, 453 F.3d 1048, 1051-52 (8th Cir. 2006). A probation officer prepared a presentence investigation report (“PSR”) calculating a Guideline range of 240-months' imprisonment for the robbery conviction, 120-months'[1] to life imprisonment for the murder conviction, and a mandatory life sentence for the firearm conviction. (PSR ¶¶ 80-81 (on file with the Court).) As part of calculating the Guideline range, the PSR recommended Oslund qualified as an armed-career criminal under the ACCA because he had three prior “violent felon[ies] or serious drug offense[s]” committed in Minnesota: (1) second-degree sale of a controlled substance; (2) first-degree sale of a controlled substance; and (3) second-degree burglary. (Id. ¶¶ 33, 44-46.)

         As recommended, U.S. District Judge James Rosenbaum found Oslund was an armed-career criminal under the ACCA based, in part, on his Minnesota second-degree burglary conviction. Oslund was sentenced to 240-months' imprisonment for the burglary, life imprisonment for the murder, and life imprisonment under the ACCA.

         (Am. J. in a Crim. Case at 2, Mar. 28, 2006, Docket No. 143.) Judge Rosenbaum concluded the robbery and ACCA convictions were “to run concurrently with each other” and the murder conviction was “imposed to run consecutively of all other counts.” (Id.) At sentencing, the judge stated that “it would be contrary to [the judge's] recommendation” if Oslund were ever released. Oslund, 435 F.3d at 1061 (quoting Sentencing Tr. at 32, May 26, 2005, Docket No. 141). Judge Rosenbaum also stated “that it was optimistic that Oslund would not be released” and that the judge was “placing [Oslund] in a position where” his conduct could not be repeated. Id. (quoting Sentencing Tr. at 34-35). The Eighth Circuit affirmed Oslund's convictions and sentence on direct appeal. Id. at 1052.

         On November 29, 2007, Oslund filed a section 2255 motion to vacate, modify, or correct his sentence and judgment arguing his trial counsel provided ineffective assistance. (Mot. to Vacate, Modify, Evidentiary Hr'g, or to Correct the Sentence and J., Nov. 29, 2007, Docket No. 148.) The Court denied Oslund's motion. (Order Denying Mot. to Vacate, July 24, 2008, Docket No. 158.)

         On June 23, 2016, Oslund filed a second section 2255 motion challenging his ACCA conviction in light of Johnson. (See Appl. for Leave to File a Second or Successive Mot. to Vacate, Set Aside or Correct Sentence, June 23, 2016, Docket No. 167.) On August 30, 2016, the Eighth Circuit certified Oslund's section 2255 motion, holding the motion raised a new issue of constitutional law made retroactively available on collateral review. (J. of USCA at 2, Aug. 30, 2016, Docket No. 169.)

         DISCUSSION

         I. RELEVENT LAW

         Section 2255(a) permits a prisoner to move the court that sentenced him to “vacate, set aside or correct the sentence” on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Such relief “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).

         At issue here is the application of the ACCA. At the time of Oslund's conviction, the ACCA provided enhanced penalties for persons convicted of being a felon in possession of a firearm with three prior “violent felonies” as defined by the statute. 18 U.S.C. §§ 922(g), 924 (e)(1). The statute provided in relevant part:

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony . . . committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years . . . .
(2) As used in this ...

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