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Owens v. United States

United States District Court, N.D. Indiana, South Bend Division

December 2, 2016

SCOTT ANTHONY OWENS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge United States District Court

         Scott Owens pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 46 months' imprisonment. This matter is before the court on Mr. Owens's motion to vacate and correct his sentence under 28 U.S.C. § 2255. For the reasons that follow, the court denies Mr. Owens's motion.

         I. Background

         Mr. Owens pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). He had one prior felony conviction, domestic battery, that's relevant to this claim. The court considered his prior felony conviction as a “crime of violence” under the Federal Sentencing Guidelines. U.S.S.G. § 4B1.2. With one prior conviction for a felony “crime of violence” and because he possessed a firearm capable of accepting a large capacity magazine, the court assigned Mr. Owens a base offense level of 22. U.S.S.G. § 2K2.1(a)(3). With a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, his final adjusted offense level was 19. Without the prior “crime of violence, ” Mr. Owens's final adjusted offense level would have been 17. U.S.S.G. §§ 2K2.1(a)(4), 3E1.1. The guidelines recommended a sentence of 46 to 57 months instead of a sentence from 37 to 46 months without the prior “crime of violence.” See U.S.S.G. § 5A. The court sentenced Mr. Owens to 46 months.

         As part of his plea agreement, Mr. Owens agreed to the following:

I expressly waive my right to appeal or to contest my conviction and all components of my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground other than a claim of ineffective assistance of counsel, including any appeal under Title 18, United States Code, Section 3742 or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255[.]

Pet. to Enter a Guilty Plea, ¶ 9(d) (emphasis added).

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act, which imposes a fifteen-year mandatory minimum sentence for a defendant who committed three prior “violent felonies.” The statute defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known as the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the “residual clause”];

18 U.S.C. § 924(e)(2)(B). Johnson held that the residual clause is unconstitutionally vague under the Due Process Clause, U.S. Const. amend. V. Johnson announced a substantive rule retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Mr. Owens wasn't sentenced under the definition of “violent felony” in the ACCA, but under identical language in the guidelines defining “crime of violence.” Mr. Owens argues that after Johnson, domestic battery isn't a “crime of ...


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