
    UNITED STATES of America, Plaintiff v. Nelson ROCKWELL, Defendant.
    CASE NO. 5:11-cr-50095
    United States District Court, W.D. Arkansas, Fayetteville Division.
    Signed 09/14/2016
    
      David A. Harris, U.S. Attorney’s Office, Fort Smith, AR, for Plaintiff.
    Bruce D. Eddy, Federal Public Defender, Fayetteville, AR, for Defendant.
   MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

Currently before the Court are Nelson Rockwell’s Motion For Relief Under 28 U.S.C. § 2255 (Doc. 20), the Government’s Response (Doc. 23) and Supplement to Response (Doc. 24), Rockwell’s Reply (Doc. 25) and Amended Reply (Doc. 29), and the Government’s Sur-Reply (Doc. 32). Rockwell’s Motion argues that he was sentenced under the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii), which was held unconstitutional in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Government’s Sur-Reply concedes that the sentence is unconstitutional and must be vacated. The Court therefore GRANTS Rockwell’s Motion (Doc. 20) and ORDERS the case to be set for resentencing.

I. BACKGROUND

Nelson Rockwell pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) on November 18, 2011. On March 1, 2012, the U.S. Probation Office filed a a final Pre-Sentence Investigation Report (“PSR”) noting that Rockwell had three prior violent felony convictions, which qualified as predicate offenses under the Armed Career Criminal Act (the “ACCA”). (Doc. 16). Under the ACCA, a defendant convicted of an offense under 18 U.S.C. § 922(g) who has three previous convictions for a “violent felony” or a “serious drug offense” is subject to a 15-year mandatory minimum sentence. In Rockwell’s case, the PSR relied on the following three prior violent felony convictions: (1) a burglary offense in Kansas City, Kansas, in 1998; (2) a second-degree burglary offense in Mt. Vernon, Missouri in 1998; and (3) an attempted third-degree burglary offense in Van Burén, Iowa, in 1999. Accordingly, on March 1, 2012, this Court enhanced Rockwell’s sentence under the ACCA, and sentenced him to 180 months imprisonment, three years of supervised release, and a $100.00 special assessment. (Doc. 18).

Rockwell filed the instant Motion under 28 U.S.C. § 2255 seeking to vacate his sentence on April 18, 2016. The Motion contends that his 1998 second-degree burglary and 1999 attempted third-degree burglary offenses no longer qualify as predicate violent felonies under the ACCA after Johnson, 135 S.Ct. 2551. Initially, in its Response to Rockwell’s Motion, the Government disagreed, and argued that those offenses remained predicate violent felonies, even in the wake of Johnson. However, shortly after the Government filed its Response, the Supreme Court decided the case of Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), which clarified the process for determining whether certain offenses constitute violent felonies. In light of Mathis, the Government’s Sur-Reply concedes that Rockwell’s 1998 second-degree burglary and 1999 attempted third-degree burglary offenses no longer qualify as predicate violent felonies under the ACCA, and that he is entitled to resentencing.

II. DISCUSSION

A. The ACCA

Generally, a defendant found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) is subject to a maximum term of imprisonment of ten years. 18 U.S.C. § 924(a)(2). However, if the defendant has three or more prior convictions for a “serious drug offense” or a “violent felony,” the ACCA imposes a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as a crime punishable by a term of imprisonment exceeding one year that:

(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).

The phrase “or otherwise involves conduct that presents a serious potential risk of physical injury to another” is known as the ACCA’s “residual clause.” See Johnson, 135 S.Ct. at 2556. In Johnson, the Supreme Court held that the residual clause was unconstitutionally vague because “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” 135 S.Ct. at 2557. Accordingly, “[ijncreas-ing a defendant’s sentence under the clause denies due process of law.” Id.

In striking the residual clause, the Court held the clause void in its entirety. Johnson, 135 S.Ct. at 2561. Additionally, on April 18, 2016, the Supreme Court held that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Thus, defendants whose sen-fences were previously enhanced under the ACCA may be entitled to resentencing if the prior felonies on which the enhancement relied only qualified as violent felony predicates under the residual clause.

B. Determining Whether a State-Law Conviction Qualifies as a “Violent Felony”

After Johnson’s invalidation of the residual clause, if an offense does not “ha[ve] as an element the use ... of physical force,” the offense can only qualify as a violent predicate felony if it “is burglary, arson, or extortion, [or] involves use of explosives.” 18 U.S.C. §§ 924(e)(2)(B)(i) and (ii). When determining whether a state-law conviction qualifies as one of these enumerated violent felonies, the Supreme Court has instructed that courts should not rely on the labels and definitions applied by state law. Instead, as the Supreme Court explained in Taylor v. United States, such crimes should be given their “generic” definitions. 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

For example, a prior conviction constitutes burglary if it has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599, 110 S.Ct. 2143. Where a state burglary statute is coextensive with this generic definition, or narrower than this definition, a sentencing court can easily conclude that a prior state conviction constitutes burglary under the generic definition. However, if the state’s burglary statute is broader than the generic definition, the sentencing court should take one of two approaches, depending on the specific nature of the statute. Taylor, 495 U.S. at 599-600, 110 S.Ct. 2143. Where the broader state statute is “indivisible”—that is, does not include disjunctive phrases to delineate alternative elements of the offense—courts should take a “categorical approach” and look only to the elements of the offense to see whether they are the same as, or narrower than, the generic definition. Id. at 600, 110 S.Ct. 2143; see also Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281-82, 186 L.Ed.2d 438 (2013) (holding that sentencing courts may not consult additional documents when the defendant was convicted of a crime that has a single, indivisible set of elements).

In contrast, where the broader state statute is “divisible”—meaning it includes a disjunctive phrase to delineate alternative elements of the offense—the Supreme Court has approved of a “modified categorical approach.” Descamps, 133 S.Ct. at 2281, 2285. Under the modified categorical approach, a sentencing court is allowed to look beyond the bare elements of the offense, to certain documents of record in the state case, to determine whether the defendant was convicted on elements that conform to the generic definition. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Descamps, 133 S.Ct. at 2284.

In Mathis, 136 S.Ct. at 2243, the Supreme Court clarified that the modified categorical approach applies only to statutes that list “multiple elements disjunc-tively,” and not to those that merely “enumerate[] various factual means of committing a single element.” Id. at 2249 (emphases added). To illustrate the difference, if “a statute requires the use of a ‘deadly weapon’ as an element of a crime and further provides that the use of a ‘knife, gun, bat, or similar weapon’ would all qualify,” application of the modified categorical approach would be inappropriate because that statute “merely specifies diverse means of satisfying a single element of a single crime.” Id. “The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.” Id. at 2256.

C. Rockwell’s Predicate Felonies

The Court agrees with the parties that Rockwell’s 1998 second-degree burglary and 1999 attempted third-degree burglary offenses could only be considered violent felonies under the ACCA’s now-defunct residual clause. Beginning first with his 1998 conviction, Missouri’s burglary statute in effect at the time' stated: “A person commits the offense of burglary in the second degree when he or she knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” Mo. Ann. Stat. § 569.170 (emphasis added). The term “inhabitable structure” was defined to include “a ship, trailer, sleeping car, airplane, or other vehicle or structure” meeting certain other criteria. Mo. Ann. Stat. § 569.010. This definition of “inhabitable structure” makes the crime of second-degree burglary in Missouri broader than the generic definition of burglary, which is limited only to “entry into a ‘building or other structure.’” Mathis, 136 S.Ct. at 2250 (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143). Thus, the Court must determine whether the locations listed by Mo. Ann. Stat. § 569.010’s definition of “inhabitable structure” are alternative elements of the burglary offense, or merely alternative means of committing the offense. If they are alternative elements, the Court can apply the modified categorical approach. But, if they are alternative means, the Court must apply the categorical approach and—as the Missouri statute is broader than generic burglary—find that Rockwell’s second-degree burglary conviction is not a predicate offense.

The Court has little difficulty in concluding that the locations listed in the definition of “inhabitable structure” are alternative means, not elements. Indeed, the Mathis case opined that a burglary statute might “itemize the various places that crime could occur as disjunctive factual scenarios rather than separate elements, so that a jury need not make any specific findings (or a defendant admissions) on that score.” 136 S.Ct. at 2249. It then said of the Iowa burglary statute at issue in that case (and in this case, infra) which enumerated “any building, structure, or land, water, or air vehicle” as places where a burglary could take place, “those listed locations are not alternative elements, going toward the creation of separate crimes.” Id. at 2250 (alterations and emphasis omitted). Rather, “they lay out alternative ways of satisfying a single locational element....” Id. The same is true of Missouri’s second-degree burglary statute, which lists the locations where a burglary may occur in a manner materially equivalent to the Iowa statute in Mathis.

Having found that Mo. Ann. Stat. § 569.010’s list of locations does not make Missouri’s second-degree burglary statute divisible, the Court is limited to applying the categorical approach described above. Taking that approach, the Missouri statute is broader than the generic version of burglary because it includes ships, trailers, sleeping ears, airplanes, and other vehicles. As the statute is broader, Rockwell’s 1998 second-degree burglary conviction cannot constitute “burglary” under the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and could have only been considered a predicate violent felony under the now-defunct residual clause. Id.

Turning to Rockwell’s 1999 attempted third-degree burglary conviction, it too cannot constitute “burglary” under the ACCA, and fits only under the Act’s invalidated residual clause. Iowa’s attempted third-degree burglary statute in effect at the time reads in relevant part as follows:

(1) All attempted burglary which is not attempted burglary in the first degree or attempted burglary in the second degree is attempted burglary in the third degree. Attempted burglary in the third degree is an aggravated misdemeanor, except as provided in subsection 2,
(2) Attempted burglary in the third degree involving an attempted burglary of an unoccupied motor vehicle or motor truck as defined in section 321.1, or a vessel defined in section 462A.2, is a serious misdemeanor for a first offense. A second or subsequent conviction under this subsection is punishable under subsection 1.

Iowa Code Ann. § 713.6B. “Burglary” is committed by:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains thei'ein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure

Iowa Code Ann. § 713.1 (emphasis added). “Occupied structure,” in turn, includes “any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value.” Iowa Code Ann. § 702.12.

As stated above, Mathis also involved Iowa’s burglary statute, and therein the Supreme Court held the statute to be broader than generic burglary. Mathis, 136 S.Ct. at 2250 (finding that Iowa Code § 702.12 reaches “a broader range of places” than generic burglary). The Mathis Court also held that the locations listed by Iowa Code § 702.12 “are not alternative elements, going toward the creation of separate crimes,” but instead “lay out alternative ways of satisfying a single locational element ..., ” Id. The Eighth Circuit, shortly after Mathis, overturned a district court’s sentence that factored Iowa’s second-degree burglary statute as an ACCA predicate violent felony. United States v. Pledge, 2016 WL 3644648, at *1 (8th Cir. July 8, 2016) (per curiam). Given the holdings of Mathis and Pledge, there can be no question that Rockwell’s 1999 attempted third-degree burglary conviction does not constitute a predicate violent felony for purposes of the ACCA.

III. CONCLUSION

For the reasons described herein, the Court finds that Rockwell’s Motion for Relief Under 28 U.S.C. § 2255 (Doc. 20) is GRANTED, and his sentence is VACATED. The Probation Office shall prepare a revised PSR, and a date for resentencing shall be set by separate order.

IT IS SO ORDERED on this 14th day of September, 2016. 
      
      . The Hon. Jimm L. Hendren.
     
      
      . The Eighth Circuit had recognized Johnson as a substantive change, and thus retroactive, even prior to Welch. Woods v. United States, 805 F.3d 1152, 1154 (8th Cir.2015).
     