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Brown v. United States

United States District Court, D. South Carolina, Charleston Division

February 22, 2019

ROBERT CURTIS BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on plaintiff Robert Curtis Brown's (“Brown”) motion to correct his sentence pursuant to 28 U.S.C. § 2255, ECF No. 77. For the reasons set forth below, the court denies the motion.

         I. BACKGROUND

         On August 10, 2005, Brown was indicted in this District for being a felon in possession of a firearm and ammunition, a violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). ECF No. 2. On May 1, 2006, Brown entered a guilty plea to Count 1 of the indictment without a written plea agreement. ECF No. 50. After a Rule 11 hearing before this court, Brown was adjudged guilty. ECF No. 55.

         In his Presentence Report (“PSR”), it was determined that Brown had at least three prior “violent felony” convictions which qualified him for a sentence enhancement as established in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The PSR identified the following New York convictions as predicate offenses under ACCA: one count of Forcible Theft with a Deadly Weapon, N.Y. Penal Law § 160.15, [1] ¶ 9; and three counts of Robbery 1st, N.Y. Penal Law § 160.15, ¶¶ 10, 11, and 12. On August 22, 2006, Brown was found at sentencing to be an armed career criminal and sentenced to 180 months' imprisonment, as recommended by the guideline range for imprisonment in light of his armed career criminal status. He also received five years supervised release and was required to pay a $100 special assessment fee. The Judgement Order was entered on September 26, 2006. ECF No. 55.

         On May 11, 2016, Brown, through his counsel, filed a timely motion to vacate under § 2255 challenging his convictions under the new rule established in Johnson v. United States, 135 S.Ct. 2551 (2015). ECF No. 77. The government moved to dismiss on June 27, 2016, ECF No. 79, to which Brown responded on July 6, 2016, ECF No. 80.

         II. STANDARD

         A prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). The burden of proof rests upon the petitioner to establish the merits of his petition by a preponderance of the evidence. See, Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         III. DISCUSSION

         Brown requests relief under Johnson, arguing that he was improperly classified as an armed career criminal under ACCA. Under § 924(e), a person who has violated § 922(g) and has three prior violent felony convictions will be subject to a minimum sentence of fifteen years. Section 924(e) identifies a violent felony through three sets of criteria: (1) requiring the felony to have “as an element the use, attempted use, or threatened use of physical force against the person of another, ” commonly referred to as the “force clause”; (2) individually listing “burglary, arson, extortion, or [any felony that] involves the use of explosives, ” commonly referred to as the “enumerated clause”; or further including any felony which “otherwise involves conduct that presents a serious risk of potential injury to another, ” commonly referred to as the “residual clause.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii).

         On June 26, 2015, the Supreme Court in Johnson struck down § 924(e)'s residual clause as unconstitutionally vague, determining it violates the constitutional promise of due process. Johnson, 135 S.Ct. at 2557. The Supreme Court later declared this new rule to be retroactive in Welch v. United States, 136 S.Ct. 1257 (2016), opening the doors for prisoners previously convicted under § 924(e) to file petitions under 28 U.S.C. § 2255 to have their sentences reconsidered as long as they were filed within one year of the Johnson decision. Under § 2255, “a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Given that § 924(e)'s residual clause has been declared unconstitutional, for Brown to prevail on a § 2255 petition, he must show that his prior violent felonies undergirding his § 924(e) sentence enhancement do not qualify as violent felonies under §924(e)'s force clause and are not one of the enumerated crimes in § 924(e)(2)(B)(ii).

         Brown was convicted of three counts of first-degree robbery and one count of forcible theft with a deadly weapon, all of which are felonies under New York penal code § 160.15. The New York offense of robbery in the first degree occurs when a person:

forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another ...

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