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United States v. Amos

United States District Court, D. Arizona

January 23, 2017

United States of America, Plaintiff,
v.
Victor Allen Amos, Defendant/Movant.

          REPORT AND RECOMMENDATION

          Michelle H. Bums United States Magistrate Judge

         TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT JUDGE:

         Defendant/Movant Victor Allen Amos, who is represented by counsel, filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. (CV 16-1324 (“CV”) Doc. 1 and CR 07-0539 (“CR”) Doc. 54.) Plaintiff United States of America (the “government”) filed a Response, and Movant has filed a Reply. (CV Docs. 6, 7.)

         BACKGROUND[1]

         According to the pleadings, Movant had multiple convictions in the Arizona and Illinois state courts for a variety of crimes, including, an attempted rape in Illinois, assorted robberies and armed robberies in Illinois, possession of narcotic drugs for sale in Arizona, and facilitation of robbery in Arizona. (CV Doc. 6 at 2 (citing to PSR ¶¶ 30-37); CR Doc. 46 at 7.) Following these convictions, in 2006, Movant possessed a semi-automatic pistol in violation of federal law. He was charged and convicted of Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) and 3559(a)(3).

         The record reflects that Movant initially agreed with the government to a ten-year stipulated sentence, but following the preparation of the PSR, the Court deferred acceptance of the plea agreement until the parties could determine whether the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), predicates would automatically enhance the statutory maximum. (CR Doc. 58 - RT 03/31/2008 at 6.) The parties ultimately concluded that the ACCA predicates would enhance the sentence, and in an effort to keep the sentencing bargain, the Assistant U.S. Attorney worked with defense counsel to propose to the Court a plea to two counts of a lesser firearms offense, but ultimately the Court expressed concern that such a plea could not be effectuated under the Guidelines. (CR Doc. 59 - RT 04/28/2008 at 19-20.) Prior to setting the trial, the parties reworked the original plea agreement to provide notice of the increased statutory maximum and minimum under the ACCA, and the Court held a combined change of plea and sentencing in May 2008. (CR Doc. 57 - RT 05/19/2008.)

         At sentencing, and as contemplated by the revised plea agreement, Movant's sentence (and the maximum and mandatory minimum ranges for the offense) was statutorily enhanced by the ACCA. The Court accepted the stipulation of the parties and imposed the mandatory minimum sentence of 180 months of incarceration (CR Doc. 45), with credit for time served dating back to his arrest date of May 10, 2007. (CV Doc. 6 (citing to PSR at 1).)

         In the § 2255 Motion, Movant alleges that his sentence was rendered unlawful by the Supreme Court's recent decision in Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015). Specifically, Movant claims that in the wake of Johnson, he no longer has three qualifying prior convictions under the ACCA. Movant argues that the Court should grant his § 2255 motion and resentence him to a term of imprisonment of not more than 10 years, to be followed by a term of supervised release not more than 3 years.

         In its Response, the government contends that the Court should address the merits of Movant's claim, and argues that the 1975 attempted rape, the 1995 possession of narcotic drugs for sale, and either the 1988 armed robbery or the 2002 facilitation of robbery convictions constitute valid predicates under the ACCA. As such, the government asserts that the Court should deny relief in this matter.

         DISCUSSION

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court examined language from the ACCA, which provides for a mandatory minimum sentence of 15 years of imprisonment for a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e). There are three “clauses” in the statute defining what type of prior crime qualifies as a “violent felony”:

• The “elements” or “force” clause: “has as an element the use, or attempted use, or threatened use of physical force against the person of another”;
• The “enumerated offenses” clause: “is burglary, arson, or extortion, [or] involves use of explosives” and
• The “residual” clause: “or otherwise involves conduct that presents a serious potential risk of ...

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