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Oslund v. United States

United States District Court, D. Minnesota

July 17, 2019

RICHARD ASHTON OSLUND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Erica H. MacDonald, United States Attorney, Lisa D. Kirkpatrick and Andrew R. Winter, Assistant United States Attorneys, for petitioner.

          Richard D. Richman, for respondent.

          MEMORANDUM OPINION

          JOHN R. TUNHEIM CHIEF JUDGE

         Petitioner Richard Oslund brought a motion under 28 U.S.C § 2255, challenging his sentence under Johnson v. United States, 135 S.Ct. 2551, 2557 (2015). Oslund asserts that, at his sentencing in 2004, the court relied on the unconstitutional residual clause of the Armed Career Criminal Act (“ACCA”) to find that his prior conviction for second-degree burglary was a violent felony. The Court found that Oslund brought a valid challenge under Johnson but denied his motion under the concurrent-sentence doctrine. On appeal, the Eighth Circuit remanded to this Court to determine whether Oslund has shown by a preponderance of the evidence that that the sentencing court relied on the residual clause of the ACCA in finding that his prior second-degree burglary conviction was a violent felony. Based on a thorough review of the record and the relevant background legal environment, the Court will find that he has.

         BACKGROUND

         In 2004, Oslund was convicted by a jury of three Counts: (I) Robbery Affecting Interstate Commerce in violation of 18 U.S.C. § 1951; (II) Murder with a Firearm During a Robbery Affecting Interstate Commerce in violation of 18 U.S.C. § 924 (c)(1)(A), (j)(1); and (III) Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). United States v. Oslund, No. CR 03-151 (JRT/FLN), 2017 WL 4621280, at *1 (D. Minn. Oct. 13, 2017).

         At the time of Oslund's sentencing, the ACCA provided that a person convicted of being a felon in possession of a firearm with three prior convictions for serious drug offenses or violent felonies was subject to a sentencing enhancement. 18 U.S.C. §§ 922(g), 924(e)(1). The ACCA defined “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added). The “otherwise” clause of § 924(e)(2)(B)(ii) is also known as the “residual clause.”

         In accordance with the recommendation in the presentence investigation report, U.S. District Judge James Rosenbaum found that Oslund was an armed career criminal under the ACCA based on three prior convictions: (1) second-degree sale of a controlled substance; (2) first-degree sale of a controlled substance; and (3) second-degree burglary. Oslund, 2017 WL 4621280, at *1. Applying the sentencing enhancement for armed career criminals, Judge Rosenbaum sentenced Oslund to a term of life imprisonment for Count III. Id. He also sentenced Oslund to 240 months' imprisonment for Count I (robbery) and an additional term of life imprisonment for Count II (murder). Id. Judge Rosenbaum ordered that Oslund's life sentence for murder would run consecutively to his sentence for the other Counts. Id. In finding that Oslund's prior conviction for second-degree burglary was a “violent felony, ” Judge Rosenbaum did not specify whether he relied on the ACCA's enumerated offenses clause or the residual clause. Id. at *6, n.6.

         Oslund appealed his convictions and sentencing on several grounds, and the Eighth Circuit affirmed. United States v. Oslund, 453 F.3d 1048 (8th Cir. 2006), cert. denied, 549 U.S. 1088 (2006). In 2007, Oslund brought a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Oslund, 2017 WL 4621280, at *2. The court denied the motion. Id.

         In 2015, the United States Supreme Court held that the residual clause of the ACCA was unconstitutionally vague in violation of due process. Johnson, 135 S.Ct. at 2557. The Supreme Court subsequently held that the rule announced in Johnson was retroactive upon ...


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