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Brown v. United States

United States District Court, S.D. Indiana, Indianapolis Division

February 26, 2019

CHARLES A. BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          SARAH EVANS BARKER, JUDGE

         Charles Brown seeks relief from his sentence pursuant to 28 U.S.C. § 2255 arguing that he does not have sufficient prior convictions to support the enhancement of his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). For the reasons discussed below, Brown's motion must be denied, and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. The § 2255 Motion

          A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997)).

         II. Factual and Procedural Background

          Brown was found guilty by a jury of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Because Brown had at least three prior convictions that were “crimes of violence” under § 4B1.4 of the United States Sentencing Guidelines, he was considered to be a career offender and his total offense level was 34. Based on a total offense level of 34 and a criminal history category of VI, Brown's guideline range of imprisonment was 262 to 327 months. Presentence Investigation Report “PSR” ¶ 73. Brown's prior criminal history consisted of two convictions for criminal confinement, two Indiana robberies, and one Indiana burglary. PSR at ¶¶ 34-36. Brown was sentenced to 264 months' imprisonment. Brown appealed his conviction and sentence, but the Seventh Circuit affirmed his conviction and sentence. See United States v. Brown, 214 Fed.Appx. 618 (7th Cir. 2007).

         Brown then filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel which was denied by this Court. See Brown v. United States, No. 1:08-cv-0891-SEB-JMS. On June 23, 2016, the Seventh Circuit granted Brown permission to file a successive motion to vacate under § 2255 to argue a claim under Johnson v. United States, 135 S.Ct. 2551 (2015). See Brown v. United States, No. 16-2526 (7th Cir. 2016).

         On June 24, 2016, Brown, with counsel, filed a memorandum in support of a § 2255 motion claiming that his criminal confinement and robbery convictions no longer qualify as violent felonies under Johnson. Dkt. 1. On June 8, 2017, Brown filed a supplemental § 2255 motion claiming that his criminal confinement and burglary convictions do not qualify as violent felonies and conceding that his Indiana robberies at paragraphs 34 and 36 do count towards his ACCA status pursuant to United States v. Duncan, 833 F.3d 751 (7th Cir. 2016). Dkt. 12. On February 26, 2018, the United States filed a status report stating that the Seventh Circuit held that Indiana Class C and Class B burglary convictions as valid predicate offenses under § 924(e)(2)(B)(ii). See United States v. Perry, 862 F.3d 620, 624 (7th Cir. 2017); United States v. Foster, 877 F.3d 343 (7th Cir. 2017); United States v. Schmutte, 709 Fed.Appx. 375 (7th Cir. 2018) (unpublished).

         On March 8, 2018, Brown's counsel filed for a motion to withdraw her appearance in this case. Dkt. 17. On March 15, 2018, the Court granted that motion and directed the United States to respond to Brown's contentions that criminal confinement does not qualify as a violent felony under Johnson and that his robbery and criminal confinement convictions at paragraph 34 of the PSR count as only one qualifying conviction for ACCA purposes. Dkt. 18.

         On April 2, 2018, Brown filed a motion to amend or correct his brief in support of § 2255 claiming that his robbery, criminal confinement, and burglary count only as one qualifying conviction as they occurred on the same occasion and his firearm was possessed during residential entry which is not a crime of violence, so it should not have enhanced his criminal history category. Dkt. 20. The Court ordered the United States to respond to Brown's amended motion. Dkt. 21.

         The United States has responded to Brown's arguments and Brown has replied.

         II. Discussion

         Brown argues that, after Johnson, his underlying convictions are not sufficient to support enhancement of his sentence under the ACCA and that his robbery and burglary convictions count as only one conviction for purposes of enhancement under the ACCA.

         The ACCA provides for a fifteen-year minimum sentence for a person who has three previous convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e). Johnson considered § 924(e)(2)(B), which defines the term “violent felony” as any of four specifically enumerated crimes or any other crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court found the above-quoted portion of § 924(e)(2)(B)-commonly known as its “residual clause”-unconstitutionally vague, meaning that it “fails to give ordinary people fair notice of the conduct it punishes.” Johnson, 135 S.Ct. at 2556. Therefore, the Court held that imposing a ...


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