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United States v. Faulkner

United States District Court, D. Minnesota

March 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ALEXANDER FAULKNER, Defendant.

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         Defendant Alexander Faulkner filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, that motion is denied.

         BACKGROUND

         In May 2015, a jury found Faulkner guilty on two counts of being a felon in possession of firearms and ammunition as an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). At sentencing, the Court determined that Faulkner was an armed career criminal within the meaning of the Armed Career Criminal Act (“ACCA”) because he had four qualifying predicate offenses in his criminal history: a 1982 attempted burglary in Illinois, a 1984 burglary in Indiana, and two 1996 federal drug offenses. Faulkner was given a sentence of 280 months on each count, to run concurrently.

         In sentencing-related position papers and at the sentencing hearing, Faulkner did not challenge the 1984 burglary as an ACCA predicate. He did challenge the other three predicates, however, and pursued those arguments before the Eighth Circuit Court of Appeals. During that appeal process, the Government conceded that the 1982 burglary no longer qualified as an ACCA offense because of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Eighth Circuit affirmed the sentence on the basis of the three remaining predicate felonies. Faulkner now argues that the 1984 burglary is not a qualifying offense.

         DISCUSSION

         Faulkner advances two main arguments in support of his position. First, he contends that his 1984 burglary conviction is no longer a valid predicate offense because of the Supreme Court's holding in Johnson. Second, he argues that if the 1984 conviction survives Johnson, it is still invalid because Indiana's burglary law is too broad to qualify as generic burglary, thereby falling outside of the ACCA.

         A. Procedural Default

         As a threshold matter, the Court first addresses the fact that Faulkner's claim regarding his 1984 burglary is procedurally defaulted. The Government rightly contends that Faulkner's failure to raise this issue at trial or on direct appeal creates a procedural default. See, e.g., Lindsey v. United States, 615 F.3d 998, 1000 (8th Cir. 2010). However, as Faulkner argues - and as the Government acknowledges in its November 27, 2017 response brief - there is a miscarriage-of-justice exception to the procedural default rule when a sentence is shown to be in excess of that authorized by law. See Sun Bear v. United States, 644 F.3d. 700, 704 (8th Cir. 2011) (“[A] miscarriage of justice cognizable under § 2255 occurs when the sentence is in excess of that authorized by law.”). Here, should Faulkner's 1984 conviction be shown to be an invalid ACCA predicate offense, his 280-month sentence would be greater than authorized by law, because the statutory maximum for Faulkner's two felon-in-possession counts would be 240 months.[1] Therefore, the Court evaluates Faulkner's procedurally defaulted claim on the merits to determine if his sentence is unauthorized by law, which in turn would trigger the miscarriage-of-justice exception.

         B. Residual Clause Argument

         Faulkner first argues that if the inclusion of his 1984 burglary as a predicate offense was based on the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii), that conviction is no longer valid for ACCA purposes because of the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015). This argument fails, however, because the basis for including this conviction was not the residual clause of § 924(e)(2)(B)(ii). Instead, it was the first clause of that provision - the “enumerated offense” clause - which specifically lists burglary as a predicate offense.

         Faulkner is correct that at sentencing, the Court never explicitly stated the basis for including the 1984 offense as a predicate. However, there was no occasion for the Court to provide such a basis because Faulkner expressly stated that he did not have an objection to the inclusion of this conviction as a predicate. See Fletcher v. United States, 858 F.3d 501, 504 (8th Cir. 2017). Moreover, the fact that Faulkner objected to his 1982 conviction on residual clause grounds, while remaining silent as to his 1984 conviction, further reinforces the fact that both Faulkner and the Court understood that his 1984 conviction would count as a predicate based on the enumerated offense clause - not the residual clause - of § 924(e)(2)(B)(ii). Accordingly, Faulkner's residual clause argument fails.

         C. Enumerated Offense Clause Arguments

         Faulkner next argues that even if the Court relied on the enumerated offense clause of § 924(e)(2)(B)(ii) to qualify his 1984 burglary, his sentence should still be vacated. Faulkner bases this argument on the well-established principle that a prior conviction only qualifies as an ACCA predicate offense if “its elements are the same as, or narrower than, those of the generic offense.” Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). Generic burglary for the purposes of the ACCA has the basic elements of “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598-99 (1990). Faulkner argues that his 1984 conviction for Class C burglary under Indiana code § 35-43-2-1 cannot be an ACCA predicate because the Indiana statute defines “burglary” more broadly than generic burglary. That statute, ...


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