Jackson v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

EARL JACKSON, )

)

Movant, )

)

v. ) Civil No. 4:18-cv-00368-DGK

) Crim. No. 4:11-cr-00149-DGK

UNITED STATES OF AMERICA, )

)

Respondent. )

ORDER DENYING MOTION TO VACATE SENTENCE

Before the Court is Movant Earl Jackson’s pro se motion (Doc. 1) to vacate, set aside, or

correct his sentence under 42 U.S.C. § 2255. He argues that his prior convictions no longer qualify

him as an armed career criminal under recent Supreme Court precedent. Because the Eighth

Circuit Court of Appeals has rejected his argument, the motion is DENIED.

Discussion

Movant pleaded guilty to being a felon in possession of a firearm, and this Court sentenced

him to 188 months’ imprisonment pursuant to the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e). The ACCA mandates a longer sentence for a defendant convicted of being a

felon in possession of a firearm if he has three or more past convictions for “violent felonies.” Id.

The Court applied the armed-career-criminal enhancement to Movant’s sentence on the basis of

six prior convictions: Missouri burglary, Illinois burglary (twice), Illinois robbery, Illinois armed

robbery, and Illinois armed robbery and unlawful use of a weapon. Movant acknowledged in his

plea agreement that he qualified as an armed career criminal based on these convictions.

At the time, “violent felony” meant a felony that either “has as an element the use,

attempted use, or threatened use of physical force against the person of another”; “is burglary,

arson, or extortion, involves the use of explosives”; or “otherwise involves conduct that presents

a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). But in Johnson v. United

States, --- U.S. ---, 135 S.Ct. 2551, 2557 (2015), the Supreme Court struck down the last part of

this definition—the “residual clause”—as unconstitutionally vague. The Court later held that

Johnson announced a “new rule” that applied retroactively on collateral review. Welch v. United

States, --- U.S. ---, 136 S.Ct. 1257, 1264-65 (2016); see 28 U.S.C. § 2255(h)(2) (requiring the

certification of successive § 2255 motions in such instances).

Movant contends that Johnson renders his sentence invalid. To prevail, he must show that

at least four of the convictions underpinning his enhancement do not qualify as predicate offenses

under the ACCA’s remaining clauses. Dembry v. United States, 914 F.3d 1185, 1186 n.3 (8th Cir.

2019) (citing Welch, 136 S.Ct. at 1268). This he cannot do. Earlier this year the Eighth Circuit

held that convictions under Missouri’s first-degree robbery statute categorically qualify as violent

felonies involving the threatened use of force against another. Jones v. United States, 922 F.3d

864, 867 (8th Cir. 2019). It held that Illinois robbery convictions qualify as well. Dembry, 914

F.3d at 1188; see also United States v. Brown, 916 F.3d 706, 708 (8th Cir. 2019) (relying on

Dembry to reach the same result under the Sentencing Guidelines’ crime-of-violence

enhancement); Shields v. United States, 928 F.3d 539, 548 (7th Cir. 2019) (holding that Illinois

armed robbery falls within the ambit of the ACCA). Movant thus has four prior convictions that

still count as violent felonies.1 His sentence stands.

1 The Government concedes that Movant’s Illinois burglary convictions no longer constitute violent felonies under

the ACCA. See United States v. Byas, 871 F.3d 841, 844 (8th Cir. 2017).

Conclusion

Movant’s motion to vacate, set aside, or correct his sentence (Doc. 1) is DENIED. The

Court declines to issue a certificate of appealability.

IT IS SO ORDERED.

Date: August 14, 2019 /s/ Greg Kays

GREG KAYS, JUDGE

UNITED STATES DISTRICT COURT