United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING MOTION MADE PURSUANT TO 28 U.S.C.
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the  Motion to Vacate, Set Aside, or Correct
a Federal Sentence Pursuant to 28 U.S.C. § 2255 filed by
Defendant Will Robertson Brown. Having reviewed the
applicable law and the submissions of the parties, the Court
finds that Brown's Motion should be denied because at
least three of his previous state court convictions qualify
as violent felonies under the “elements clause”
of 18 U.S.C. § 924(e)(2)(B)(i).
was convicted under 18 U.S.C. § 922(g) of being a felon
in possession of a firearm. This conviction resulted in an
enhanced sentence under 18 U.S.C. § 924(e)(1), part of
the Armed Career Criminal Act (ACCA), to 188 months and five
years supervised release. Specifically, § 924(e)(1) sets
a mandatory 15 year (180 months) minimum sentence for a
person who violates § 922(g) and has three previous
convictions for a violent felony. At the time of Brown's
sentence, a crime could qualify as a violent felony under the
“elements clause, ” the “enumerated crimes
clause, ” or the “residual clause” of
§ 924(e)(2)(B). Because the Court found that Brown had
at least three previous convictions for a violent felony,
Brown was subject to the minimum sentence set out in §
2015, after Brown's sentencing, the United States Supreme
Court held that the “residual clause” of §
924(e)(2)(B) violated the Constitution's guarantee of due
process. Johnson v. United States, 135 S.Ct. 2551,
2563 (2015). Brown then filed this Motion arguing that his
previous Mississippi state court convictions qualified as
violent felonies only under the “residual clause”
and should no longer be considered violent felonies under 18
U.S.C. § 924(e)(2)(B). For the reasons discussed below,
Brown's Motion is denied.
2255 provides four grounds for relief: (1) “that the
sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was
without jurisdiction to impose such sentence;” (3)
“that the sentence was in excess of the maximum
authorized by law;” and (4) that the sentence is
otherwise “subject to collateral attack.” 28
U.S.C. § 2225(a). Brown contends, based on the Supreme
Court's Johnson (2015) ruling, that his prior
state court convictions for burglary and larceny, aggravated
assault, and aggravated assault against a law enforcement
officer are not violent felonies under the ACCA, and thus
that he is entitled to a sentence correction. The Court
discusses each conviction in turn below.
Assault and Aggravated Assault Against a Law Enforcement
employ a categorical approach when classifying a prior
conviction for sentencing enhancement purposes. See
Taylor v. United States, 495 U.S. 575, 602 (1990). Under
this approach, “the analysis is grounded in the
elements of the statute of conviction rather than a
defendant's specific conduct.” United States v.
Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc).
In Johnson v. United States, 559 U.S. 133 (2010),
the United States Supreme Court clarified that in order for a
statute to qualify under the elements clause, the statute
must have an element of “physical force, ” that
is, “violent force” capable of causing physical
pain or injury to another person. Id. at 140.
“a statute contains multiple, disjunctive subsections,
” courts apply a modified categorical approach. See
United States v. Sanchez-Espinal, 762 F.3d 425, 429 (5th
Cir. 2014). Under this approach, “courts may
‘look beyond the statute to certain conclusive records
made or used in adjudicating guilt in order to determine
which particular statutory alternative applies to the
defendant's conviction'” and apply the
categorical approach to that version of the crime.
Id. (quoting United States v.
Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005)).
“[A court] may review ‘the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge
to which the defendant assented'” in order to
determine under which subsection the defendant was charged.
See United States v. Elizondo-Hernandez, 755 F.3d
779, 781 (5th Cir. 2014) (quoting Shepard v. United
States, 125 S.Ct. 1254 (2005)). A criminal statute must
be divisible-that is, the statute must “comprise[ ]
multiple, alternative versions of the crime”-in order
for the modified categorical approach to apply. Descamps
v. United States, 133 S.Ct. 2276, 2283-84 (2013).
Mississippi aggravated assault statute under which Brown was
convicted states in pertinent part:
A person is guilty of aggravated assault if he:
(i) attempts to cause serious bodily injury to another, or
causes such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value
of human life; or
(ii) attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon or other means
likely to ...