Hardman v. United States

• Decision Date: 07 March 2016
• Docket Number: No. 15-CV-798-W-DGK,Crim. No. 11-CR-53-W-DGK,15-CV-798-W-DGK
• Citation: 149 F.Supp.3d 1144
• Parties: Ronnie L. Hardman, Movant, v. United States of America, Respondent.
• Court: U.S. District Court — Western District of Missouri

149 F.Supp.3d 1144

Ronnie L. Hardman, Movant,

v.United States of America, Respondent.

No. 15-CV-798-W-DGK

Crim. No. 11-CR-53-W-DGK

United States District Court, W.D. Missouri, Western Division.

Signed March 7, 2016

Anita L. Burns, Federal Public Defender's Office, Kansas City, MO, for Movant.

Phillip Eugene Porter, U.S. Attorney's Office, Kansas City, MO, for Respondent.

ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

GREG KAYS, CHIEF JUDGE, UNITED STATES DISTRICT COURT

When sentencing Movant Ronnie L. Hardman (“Hardman”) for being a felon in possession of a firearm, the Court found that he had a past Missouri state conviction for burglary. As required by the Armed Career Criminal Act (“ACCA”), the Court gave him a higher sentence than he otherwise would have received.

Hardman has now filed a motion to vacate his sentence under 28 U.S.C. § 2255

(Doc. 1) against Respondent (“the Government”). He argues that in light of a recent Supreme Court case, his burglary conviction no longer subjects him to ACCA enhancement, so the Court should vacate his sentence.

The Court holds that Hardman's burglary conviction is not a “burglary” conviction as used in the ACCA. Although this result may seem counterintuitive, for the reasons explained below, the motion is GRANTED and Hardman's sentence is VACATED.

Background

In his federal criminal case, Hardman pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)

, 924(a)(2). While that crime usually carries a maximum prison sentence of ten years, a defendant faces an enhanced sentence—fifteen years to life imprisonment—if he has three previous convictions that qualify under the ACCA. Id. § 924(e)(1).

Prior to Hardman's sentencing, the U.S. Probation and Pretrial Services Office generated a presentence investigation report (“PSR”). The report writer concluded that Hardman had at least three prior felony convictions. Two were for sale of a controlled substance, each in February 2000. The third was a 2008 conviction for burglary in the second degree, as charged in an information filed in the Circuit Court of Jackson County, Missouri. That information, to which he pled guilty, alleged that

the defendant, Ronnie L. Hardman[ ], in violation of Section 569.170, RSMo

, committed the Class C Felony of Burglary in the Second Degree, punishable upon conviction under Sections 558.011 and 560.011, RSMo, in that on or about the 5th day of October, 2007, in the County of Jackson, State of Missouri, the defendant acting alone or purposefully in concert with another, knowingly entered unlawfully in an inhabitable structure, located at 2615 Jackson Avenue, and owned by Daniel Salinas for the purpose of committing Stealing therein.

(Crim. Doc. 33-1 at 1) (boldface removed).

The PSR elaborated on the 2008 burglary conviction, “According to the probable cause statement, on October 6, 2007, an individual contacted the police department as his home had been burglarized. The victim reported that a window in his laundry room was pushed in and was leaning up against the wall. ... [Hardman] was interviewed by the police [and] eventually admitted to assisting an individual he identified as ‘BG,’ by pushing in the window.” (Crim. Doc. 20 at 10). The referenced probable cause statement does not appear outside the PSR. Hardman did not object to the PSR's recitation of the probable cause statement.

At the sentencing hearing in 2012, the Court found that these three convictions fell under the ACCA, though it did not identify which specific provisions of the ACCA applied. Finding Hardman to be an armed career criminal, the Court sentenced him to the mandatory minimum sentence of 180 months' imprisonment. Hardman appealed his sentence on issues unrelated to the instant motion, unsuccessfully. United States v. Hardman , 489 Fed.Appx. 139 (8th Cir.2012)

.

Discussion

Hardman concedes that his two controlled-substance convictions qualify under the ACCA, but argues that his 2008 second-degree burglary conviction no longer does because the applicable part of the ACCA was invalidated after his sentencing. Without a third ACCA conviction, he argues, he was improperly sentenced and must be resentenced. See 28 U.S.C. § 2255(a)

, (b). The Government responds that despite recent changes in the law, Hardman still warrants the armed career criminal enhancement because his burglary conviction is captured by a different part of the ACCA.

A district court may vacate, set aside, or correct a federal sentence if “the sentence was in excess of the maximum authorized by law.” Id. § 2255(a)

. In an ACCA case like this, the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA. See

Day v. United States , 428 F.2d 1193, 1195 (8th Cir.1970) (“The petitioner bears the burden of proof upon each ground presented for relief in a Section 2255 proceeding.”); United States v. Thornton , 766 F.3d 875, 878 (8th Cir.2014) (requiring the Government to prove at sentencing, by a preponderance of the evidence, that the defendant pled guilty to a qualifying ACCA offense).

I. The Court must employ the modified categorical approach to determine whether Hardman was convicted of an ACCA “violent felony.”

The ACCA enhances the statutory range of punishment for recidivating defendants that have collected three prior convictions for certain drug crimes or “violent felon[ies].” 18 U.S.C. § 924(e)(1)

. One type of “violent felony” was defined in the “residual clause,” under which Hardman's conviction likely fell, giving the Court no need to explicitly state which type of “violent felony” applied here. See

United States v. Cantrell , 530 F.3d 684, 695–96 (8th Cir.2008) (holding that Missouri's second-degree burglary offense was categorically a “crime of violence” under the residual clause despite its broad definition of “inhabitable structure”). However, last Term the Supreme Court of the United States invalidated the residual clause as unconstitutional. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). Because the Government concedes here that Johnson applies retroactively to Hardman's case,¹ the issue is whether his burglary conviction could be classified as any other type of violent felony.

The only other plausible violent felony is “burglary,” which the ACCA casts as a predicate in the so-called enumerated offenses clause. 18 U.S.C. § 924(e)(2)(B)(ii)

. To determine whether Hardman's conviction constitutes ACCA “burglary,” a court employs a “categorical approach” and “compare[s] the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood.” Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). “The prior conviction qualifies as an ACCA predicate only if the [convicting] statute's elements are the same as, or narrower than, those of the generic offense.” Id. The key “is elements, not facts.” Id. at 2284.

Thus, the Court must compare the elements of the “generic” crime of burglary with the elements of Hardman's statute of conviction. The “generic” crime of burglary has the following elements: “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 2283

(quoting Taylor v. United States , 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). Courts struggle with the precise meaning of “building or structure,” but generally agree that the phrase includes at least “those spaces that are designed for occupancy and intended for use in one place,” and excludes at least modes of transportation. See

United States v. Silva , 608 F.3d 663, 668–69 (10th Cir.2010) (holding that “building or structure” also includes “other, potentially less complete ‘enclosed spaces' ”); United States v. Grisel , 488 F.3d 844, 848–49 (9th Cir.2007) (en banc) (holding that “building or structure” means only permanent and unmovable structures).

Under Missouri's second-degree burglary statute—Hardman's statute of conviction—a person is guilty if he “knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” Mo. Rev. Stat. § 569.170.1 (2007)

. “Inhabitable structure,” in turn, “includes a ship, trailer, sleeping car, airplane, or other vehicle or structure” where people live, conduct business, assemble, or spend the night. Id. § 569.010(2).

Under the categorical approach, Hardman's conviction cannot be a predicate offense. Missouri's second-degree burglary statute criminalizes the unlawful entry into an “inhabitable structure” like a ship, which does not qualify as generic burglary. See Descamps , 133 S.Ct. at 2283

; Grisel , 488 F.3d at 848–49. Given the breadth of the statute's reach, the Court cannot conclude at this point that Hardman was convicted of “burglary” within the meaning of the enumerated offenses clause. See

Descamps , 133 S.Ct. at 2281.²

But the inquiry does not end here, because the Court can modify the categorical approach if the statute is textually “divisible,” meaning it can be violated in alternative ways, one of which matches the generic offense. Id. Section 569.170.1 presents alternative sets of elements, one of which does not conform to generic burglary—the unlawful entry into an “inhabitable structure” like an airplane—but one of which does—the unlawful entry into a building. Therefore, the statute is divisible and the Court may employ the modified categorical approach. See id.

II. The only document the Court may view under the modified categorical approach is the criminal information, which does not establish by a preponderance of the evidence that Hardman committed generic burglary.

The Court can now use the modified categorical approach to figure out which alternative set of elements Hardman pled guilty to. This...