Lee v. United States

DARNELL LEE, Movant/Defendant, v. UNITED STATES OF AMERICA, Respondent/Plaintiff.

Civ. Act. No. 16-508-LPS

Cr. Act. No. 12-10-LPS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

September 30, 2019

Tieffa N. Harper, Assistant Federal Public Defender, Office of the Federal Public Defender, District of Delaware, Wilmington, Delaware. Attorney for Movant.

Alexander Ibrahim, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

MEMORANDUM OPINION¹

September 30, 2019

Wilmington, Delaware

STARK, U.S. District Judge:

I. INTRODUCTION

Darnell Lee ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (D.I. 26) The United States ("Respondent") filed an Answer in Opposition. (D.I. 32) For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.

II. BACKGROUND

In May 2012, Movant pled guilty to possessing a firearm as a person prohibited, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (D.I. 17 at 1) In the Plea Agreement, Movant stipulated that the Armed Career Criminal Act ("ACCA") (18 U.S.C. § 924(e)(2)(A)) applied to his case and to the existence of three prior convictions for a violent felony or serious drug offense: (1) a 1994 Delaware conviction for possession with intent to deliver a narcotic schedule II substance; (2) a 2003 Delaware conviction for possession with intent to deliver a controlled substance; and (3) a 2007 Delaware conviction for aggravated menacing in violation of 11 Del. C. § 602(b). (D.I. 17 at 1-2) The Honorable Sue L. Robinson sentenced Movant to the mandatory minimum 180-month term of imprisonment because Movant's three prior felonies qualified him for enhanced penalties under the ACCA. (D.I. 19; D.I. 20; D.I. 23)

Movant filed the instant § 2255 Motion in June 2016, asserting that his 2007 Delaware conviction for aggravated menacing no longer qualifies as a "violent felony" under the ACCA after Johnson v. United States, 135 S.Ct. 2551 (2015). (D.I. 26 at 6) Respondent filed an Answer in Opposition to Movant's § 2255 Motion, arguing that the Motion should be dismissed as meritless because Movant's 2007 conviction still constitutes a "violent felony" under the ACCA. (D.I. 32 at 1-2)

III. DISCUSSION

A person convicted under 18 U.S.C. § 922(g) faces a maximum sentence of 10 years. See 18 U.S.C. § 924(a)(2). The ACCA substantially increases the sentence to a mandatory minimum term of 15 years if the person has three previous convictions for a "violent felony or a serious drug offense, or both." See 18 U.S.C. § 924(e)(1). A prior offense qualifies as a "violent felony" under the ACCA if it is "punishable by imprisonment for a term exceeding one year" and it:

(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).

Subsection (i) above is known as the "elements clause" or "force clause;" the first portion of subsection (ii) — "burglary, arson, or extortion" — is known as the ACCA's "enumerated clause;" and the remainder of subsection (ii) is known as the ACCA's "residual clause." See Stokeling v. United States, 139 S.Ct. 544, 556 (2019). In 2015, the Supreme Court held that the ACCA's residual clause definition of a "violent felony" is unconstitutionally void for vagueness under the Due Process Clause. See Johnson, 135 S.Ct. at 2556-60. The Supreme Court made Johnson retroactively applicable on collateral review in Welch v. United States, 136 S.Ct. 1257, 1264 (2016). However, "Johnson did not disturb the other parts of the ACCA, including the ACCA's other two means of determining whether a potential predicate crime is a crime of violence: namely, the 'elements' [force] clause at § 924(e)(2)B)(i) dealing with the use or threatened use of force, and the 'enumerated offense' clause at § 924(e)(2)(B)(ii)." United States v. Parks, 237 F. Supp. 3d 229, 235 (M.D. Pa. 2017). The issue in this case is whether Movant's predicate crime of aggravated menacing under Delaware law is a "violent felony" under the ACCA's elements/force clause.

A. Categorical/Modified Categorical Approach

Courts apply what is known as the "categorical approach" to determine if a prior conviction qualifies as a predicate violent felony under the ACCA's elements/force clause. See Descamps v. United States, 570 U.S. 254, 257 (2013); Taylor v. United States, 495 U.S. 575, 600 (1990). Under this approach, a federal "sentencing court may look only to the elements of a defendant's prior conviction, not to the particular facts underlying those convictions." United States v. Abbott, 748 F.3d 154, 157 (3d Cir. 2014). The relevant question is "whether the least culpable conduct covered by the statute at issue" forming the basis of the defendant's predicate conviction has as an element the use, attempted use, or threatened use of physical force. See Stokeling, 139 S.Ct. at 556. In order to determine what a statute covers under the categorical approach, federal courts rely on the interpretation of the offense issued by the courts of the state in question. Id.; see also United States v. Winston, 850 F.3d 677, 684 (4^th Cir. 2017). "If the elements of the prior conviction are identical to (or narrower than) the elements of the []ACCA crime, the prior conviction can serve as an ACCA predicate." United States v. Daniels, 915 F.3d 148, 150 (3d Cir. 2019). "But if the statute sweeps more broadly than the [] [ACCA's 'violent felony' definition], a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Descamps v. United States, 570 U.S. 254, 261 (2013); see also Mathis v. United States, 136 S.Ct. 2243, 2248-49 (2016) (explaining that, if state statute of conviction is indivisible, i.e., elements define a single crime, and conduct criminalized under statute is broader than ACCA definition, a conviction for that crime may not be grounds for enhanced sentence).

To succeed under the categorical approach, a defendant must demonstrate "a realistic probability, not a theoretical possibility," that the statute at issue could be applied to conduct that does not constitute a violent felony by "at least point[ing] to his own case or other cases in which the . . . courts in fact did apply the statute in the . . . manner for which he argues." See Gonzales v.Duenas-Alvarez, 549 U.S. 183, 193 (2007). If "the law defines the crime in such a way that it can be committed using either violent or non-violent force, then the crime is not a violent felony under [the] ACCA, even if the defendant actually used violent force in committing the crime." United States v. Haight, 892 F.3d 1271, 1279 (D.C. Cir. 2018).

The question for the sentencing court in the elements-clause context is whether every defendant convicted of that state or federal felony must have used, attempted to use, or threatened to use physical force against the person of another in order to have been convicted, not whether the particular defendant actually used, attempted to use, or threatened to use physical force against the person of another in that particular case. If the answer to that question is "no," and the statute forming the basis for the defendant's previous state or federal conviction criminalizes conduct that does not involve "the use, attempted use, or threatened use of physical force against the person of another," then a conviction under that statute may not serve as a violent-felony predicate under the elements clause, assuming that statute is an "'indivisible' statute — i.e., one not containing alternative elements."

United States v. Burris, 912 F.3d 386, 392 (6^th Cir. 2019).

The categorical approach is used when the predicate offense statute is indivisible, i.e., the statute for the predicate offense defines a single crime and does not contain alternative elements. In contrast, when the predicate offense statute is divisible, courts use a variant of the categorical approach, known as the "modified categorical approach," to determine what specific conduct led to the defendant's conviction. See Descamps, 570 U.S. at 257-58. A divisible statute defines multiple crimes and "sets out one or more elements of the offense in the alternative — for example, stating that burglary involves entry into a building or an automobile." Descamps, 570 U.S. at 257-58. The modified categorical approach permits sentencing courts "to consult a limited class of documents . . . to determine which alternative formed the basis of the defendant's prior conviction." Id. at 257. These documents, called Shepard documents, include "the indictment, jury instructions, or plea agreement and colloquy." Mathis, 136 S.Ct. at 2249. Notably, the modified categorical approachonly applies to statutes that list multiple alternative sets of elements, not statutes that list multiple alternative factual means of committing a single element.² See Mathis, 136 S.Ct. at 2249.

B. The ACCA's Definition of Violent Felony

A prior state conviction is categorically a "violent felony" under the elements/force clause of the ACCA if the statute for the prior state conviction contains an element requiring at least the "use, attempted use, or threatened use of physical force." Moore, 916 F.3d at 240. The Supreme Court has interpreted the term "physical force" to denote "violent force." See Johnson v. United States, 559 U.S. 133, 132, 140 (2010) (hereinafter referred to as "Johnson 2010"). Violent force is "force exerted by and through concrete bodies" that is "capable of causing physical pain or injury to another person." Johnson 2010, 559 U.S. at 138-40; see also United States v. Castleman, 572 U.S. 157 (2014). In Castleman, the Supreme Court opined that ...