Stewart v. United States

191 F.Supp.3d 923

Syrenas STEWART, Petitioner

v.UNITED STATES of America, Respondent.

Case No. 16-C-206

Criminal Case No. 02-CR-205

United States District Court, E.D. Wisconsin.

Signed May 25, 2016

Shelley M. Fite, Federal Defender Services of Wisconsin Inc, Madison, WI, for Petitioner.

Jonathan H. Koenig, Lennie Lehman, United States Department of Justice, Milwaukee, WI, for Respondent.

DECISION AND ORDER

LYNN ADELMAN, District Judge

Petitioner Syrenas Stewart moves to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that he no longer qualifies for an enhanced term under the Armed Career Criminal Act, ("ACCA"), 18 U.S.C. § 924(e). His motion turns on whether simple robbery under Wis. Stat. § 943.32 still qualifies as a "violent felony" after the Supreme Court's decision Samuel Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Robinson v. United States, No. 16–C–156, 188 F.Supp.3d 857, 2016 WL 3059764 (E.D.Wis. May 24, 2016), I determined that it does not. I will accordingly grant petitioner's motion.¹

I. BACKGROUND

On January 21, 2003, petitioner pleaded guilty to possession of a firearm as a felon, 18 U.S.C. § 922(g)(1), and possession of crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and on April 18, 2003, I sentenced him to 188 months in prison each count running concurrently. In imposing sentence on the firearm count, I determined that petitioner qualified for an enhanced term based (in part) on his three prior convictions of simple robbery.² Under the ACCA, a felon with three prior convictions for either a "violent felony" or a "serious drug offense" faces a sentence of 15 years to life in prison, 18 U.S.C. § 924(e)(1) ; otherwise, the maximum penalty for unlawful firearm possession is 10 years, 18 U.S.C. § 924(a)(2).

In the instant § 2255 motion, petitioner argues that simple robbery under Wis. Stat. § 943.32 no longer qualifies as a "violent felony," defined as any crime punishable by imprisonment for a term exceeding one year that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another (the "force clause" or the "elements clause"); (2) is burglary, arson, or extortion, or involves use of explosives (the "enumerated offenses clause"); or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another (the "residual clause"). 18 U.S.C. § 924(e)(2)(B). In determining whether an offense qualifies as an ACCA predicate, the court applies a categorical approach, focusing on the elements of the statute of conviction rather than the actual conduct of the particular offender. E.g., United States v. Ker Y ang, 799 F.3d 750, 752 (7th Cir.2015).

Robbery is not an enumerated offense, and in Samuel Johnson, 135 S.Ct. at 2557, the Supreme Court struck down the residual clause as unconstitutionally vague. Samuel Johnson applies retroactively to cases on collateral review. Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) ; Price v. United States, 795 F.3d 731 (7th Cir.2015). Accordingly, unless Wisconsin robbery qualifies under the force clause it cannot serve as an ACCA predicate.

Wis. Stat. § 943.32(1) provides:

Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a ... felony:

(a) By using force against the person of the owner with intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or carrying away of the property; or

(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

Petitioner concedes that the statute appears to fit within the force clause. Indeed, in United States v. Otero, 495 F.3d 393, 401 (7th Cir.2007), the court, quoting the statutory text, concluded that this offense qualifies as a crime of violence under the identically worded career offender guideline, U.S.S.G. § 4B1.2(a), as it "has as a necessary element the use of force against a victim."

However, in Curtis Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Supreme Court clarified that, in the context of the ACCA's "violent felony" provision, "the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265. On this understanding, the Court held that battery under Florida law, which is satisfied by any intentional physical contact, no matter how slight, id. at 138, 130 S.Ct. 1265, does not qualify as a violent felony.

Petitioner contends that, given the Wisconsin supreme court's construction of the force requirement in the robbery statute, the result should be the same here. See Walton v. State, 64 Wis.2d 36, 43, 218 N.W.2d 309 (1974) (holding that "force is not to be confounded with violence," and that "the degree of force used is immaterial"). Petitioner notes that Wisconsin's expansive definition of force varies from the rule in most jurisdictions, under which purse snatching and other grab-and-run thefts would be prosecuted under larceny laws, not as robberies. See Wayne LaFave, Substantive Criminal Law§ 20.3(d)(1) (2015). This is significant, petitioner contends, because courts have found such street thefts to be crimes of violence under the now-defunct residual clause, not the force clause. E.g., United States v. Hollins, 514 Fed.Appx. 264, 267–68 (3d Cir.2013) ; see also United States v. Howze, 343 F.3d 919, 923–24 (7th Cir.2003) (collecting cases). He concludes that, with the residual clause gone, robbery statutes like Wisconsin's, which are satisfied by any force, however slight, no longer qualify as violent felonies. He accordingly asks the court to vacate his sentence.³

II. DISCUSSION

The government does not assert procedural default or timeliness as bars to the court's consideration of petitioner's motion. Rather, the government defends the sentence on the merits, arguing that the Wisconsin crime of simple robbery remains a violent felony under the force clause.

As the government notes, the Seventh Circuit held that Wisconsin robbery satisfied the force clause both before and after Curtis Johnson. See Otero, 495 F.3d at 401 ; United States v. Beason, 493 Fed.Appx. 747, 749 (7th Cir.2012). These cases cannot end the inquiry, however. As indicated above, Otero addressed not the ACCA but the career offender guideline. While the Seventh Circuit ordinarily considers its case-law interpreting these two provisions to be interchangeable, e.g., United States v. Hampton, 675 F.3d 720, 730 n. 2 (7th Cir.2012), the Otero court further relied on the fact that robbery is specifically enumerated as a crime of violence in the career offender guideline's application notes, 495 F.3d at 401 (citing U.S.S.G. § 4B1.2 cmt. n.1), which the Seventh Circuit treats as authoritative. See United States v. Raupp, 677 F.3d 756, 758–59 (7th Cir.2012). Robbery is not an enumerated offense under the ACCA. Beason was an ACCA case, but the decision is unpublished and responsive to an Anders brief from the defendant's appellate counsel. And neither Beason nor Otero analyzed whether Wis. Stat. § 943.32 as construed by the Wisconsin supreme court qualifies under the ACCA's force clause as construed by the U.S. Supreme Court in Curtis Johnson.⁴

A. Construction of Wisconsin's Robbery Statute

As the Court explained in Curtis Johnson, while the meaning of the term "physical force" is a question of federal law, in deciding whether a particular state offense requires the requisite use of force federal courts are bound by the state judiciary's construction of state statutes. 559 U.S. at 138, 130 S.Ct. 1265. I therefore turn to the Wisconsin supreme court's construction of § 943.32.

The state supreme court first addressed the force issue in Walton, 64 Wis.2d 36, 218 N.W.2d 309 (1974). In that case, the defendant followed a 64-year-old woman who was carrying a bank pouch, approached her and snatched the pouch out of her arms, without touching her or saying anything, then fled down the street. Id. at 38, 218 N.W.2d 309. Convicted of robbery at trial, on appeal the defendant challenged the sufficiency of the evidence of the use of force and the trial court's refusal to instruct the jury on the lesser included offense of theft from a person. Id. at 39, 218 N.W.2d 309.

The Walton court began its analysis with State v. Lewis, 113 Wis. 391, 89 N.W. 143 (1902), which involved a predecessor robbery statute providing that: "Any person who shall assault another with intent to commit any burglary, robbery, rape or mayhem, ... shall be punished by imprisonment." 64 Wis.2d at 40, 218 N.W.2d 309. In Lewis, the trial court held that larceny from the person did not fall within that statute, but the Wisconsin supreme court reversed, stating:

The trial court seems to have confounded force with violence. Force, in legal contemplation, does not always mean physical violence. Thus, in prosecutions for assault and battery, any touching of the person or clothing of another in anger, or even spitting upon another, constitutes a battery. In legal contemplation such touching for a hostile or wrongful purpose is the application of force.... The law can draw no line between the different degrees of force.... Larceny from the person can only be accomplished by the use of some degree of force within the definition of force above given. There may be no actual violence; certainly none is generally intended. But there will necessarily be some slight touching of the clothing, person, or belongings attached to the person of another, which, though intended to be so slight that it will be unnoticed, is nevertheless a hostile and wrongful touch, and amounts to legal force.

Id. at 41, 218 N.W.2d 309 (quoting Lewis, 113 Wis. at 393, 89 N.W. 143 ). After Lewis,...