United States District Court, D. Minnesota
P. Petterson, Assistant United States Attorney, for
D. Richman, for defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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' 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,
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.
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.
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.)
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.)
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)).
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 ...