United States v. Bugh, Case No. 11-CR-0072 (PJS/SER)

• Decision Date: 11 May 2020
• Docket Number: Civil No. 19-CV-2540 (PJS),Case No. 11-CR-0072 (PJS/SER)
• Citation: 459 F.Supp.3d 1184
• Parties: UNITED STATES of America, Plaintiff, v. Roger Bruce BUGH, Defendant.
• Court: U.S. District Court — District of Minnesota

459 F.Supp.3d 1184

UNITED STATES of America, Plaintiff,

v.Roger Bruce BUGH, Defendant.

Case No. 11-CR-0072 (PJS/SER)

Civil No. 19-CV-2540 (PJS)

United States District Court, D. Minnesota.

Signed May 11, 2020

Lisa D. Kirkpatrick, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

Roger Bugh, pro se.

ORDER

Patrick J. Schiltz, United States District Judge

Defendant Roger Bugh was convicted after a jury trial of being a felon in possession of a firearm. ECF No. 74. After determining that Bugh qualified as an armed career criminal under the Armed Career Criminal Act ("ACCA"), the Court sentenced him to 188 months' imprisonment. ECF No. 96. The United States Court of Appeals for the Eighth Circuit affirmed Bugh's conviction and sentence on direct appeal. ECF No. 105.

This matter is before the Court on Bugh's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF Nos. 111, 112. Bugh makes two claims:

First, relying on the recent decision of the United States Supreme Court in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), Bugh argues that the jury instructions given at his trial were erroneous, and he asks the Court to grant him a new trial. The Court agrees that, under Rehaif , Bugh's jury instructions were erroneous, but the Court finds that the error was harmless and therefore Bugh is not entitled to a new trial.

Second, seeking to benefit from another Supreme Court decision— Johnson v. United States , –576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) —Bugh argues that he was improperly classified as an armed career criminal under the ACCA. If Bugh is correct, he could not have been sentenced to more that 120 months in prison, and thus his 188-month sentence must be vacated. See 18 U.S.C. §§ 924(a)(2) & (e). The Court agrees that, under Johnson , Bugh no longer qualifies as an armed career criminal and therefore he must be resentenced.

I. BACKGROUND

Bugh was charged with being a felon in possession of a firearm after selling a handgun to an informant. See ECF Nos. 100, 101, 102. The case was tried in June 2011. At the close of trial, the jury was instructed that it could not convict Bugh unless it found that the government had proven three things beyond a reasonable doubt: (1) that Bugh previously had been convicted "of a crime punishable by imprisonment for a term exceeding one year," (2) that Bugh "thereafter knowingly possessed a firearm ...," and (3) that "the firearm that [Bugh] possessed was transported across a state line at some time during or before [Bugh] possessed it." ECF No. 72, Instr. No. 22. Consistent with Eighth Circuit precedent,¹ the jury was not instructed that Bugh had to know that he had previously been convicted of a crime punishable by imprisonment for more than one year. The evidence against Bugh left no doubt about his guilt, and the jury quickly convicted him. ECF Nos. 71, 74.

At sentencing, the Court had to determine whether Bugh was an armed career criminal under the ACCA. A lot turned on that determination. If Bugh was an armed career criminal, he would be subject to a 15-year mandatory minimum ; if he was not, he would be subject to a 10-year statutory maximum . 18 U.S.C. §§ 924(a)(2) & (e). To be sentenced as an armed career criminal, Bugh needed at least three prior qualifying convictions—that is, convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e). The presentence investigation report ("PSR") found that Bugh had nine prior convictions for violent felonies, including:

• Three federal convictions for bank larceny or bank burglary, namely: (1) a 1991 conviction for bank larceny, in violation of 18 U.S.C. § 2113(b) ;² (2) a 1993 conviction for bank burglary, in violation of 18 U.S.C. § 2113(a) ;³ and (3) a 1998 conviction for bank larceny, in violation of 18 U.S.C. § 2113(b).⁴

• Four Minnesota convictions for burglary, namely: (1) a 1987 conviction for third-degree burglary;⁵ (2) a 1989 conviction for third-degree burglary;⁶ (3) a 1998 conviction for third-degree burglary;⁷ and (4) a 2005 conviction for second-degree burglary.⁸

• A 1987 Minnesota conviction for second-degree assault.⁹

• And finally, a 2008 Wisconsin conviction for burglary, in violation of Wis. Stat. § 943.10(1m)(a).¹⁰

At sentencing, Bugh conceded that his Minnesota second-degree assault conviction qualified as a violent felony under the ACCA. ECF No. 93 at 5. Bugh also conceded that under Eighth Circuit precedent,¹¹ three of his Minnesota burglary offenses qualified as violent felonies under what is known as the "residual clause" of the ACCA. Id. at 5-6; see also ECF No. 103 at 5-6. Because Bugh had no fewer than four qualifying convictions, the Court found him to be an armed career criminal. ECF No. 103 at 5-6. The Court declined to decide whether the other five convictions on which the PSR relied were violent felonies, as Bugh needed only three violent felonies to qualify as an armed career criminal. Id. at 6-7. The Court sentenced Bugh to 188 months' imprisonment. Id. at 12; see also ECF No. 96.

After Bugh began serving his sentence, the Supreme Court issued its decision in Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the residual clause of the ACCA was unconstitutionally vague. Johnson fatally undermined the Eighth Circuit precedent on which this Court had relied in finding that Bugh's three Minnesota burglary convictions were violent felonies under the residual clause of the ACCA. Bugh now argues that none of his three convictions qualify as violent felonies under the ACCA, and thus he is not an armed career criminal. See, e.g. , ECF No. 111 at 2; ECF No. 112 at 2-4, 9-10; see also ECF No. 114.

II. ANALYSIS

A. Rehaif Claim

Bugh first argues that the jury instructions given at his trial were erroneous in light of Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). In Rehaif , the Supreme Court held that, in order for a defendant to be guilty of unlawfully possessing a firearm, he must know not only that he possessed a firearm, but also that he was of a status that rendered such possession unlawful. 139 S. Ct. at 2194. In other words, in order for Bugh to be guilty of being a felon in possession of a firearm, Bugh would have to know that he was a felon—i.e., that he had previously been convicted of a crime punishable by imprisonment for more than one year. Bugh's jury was not instructed that it must find, beyond a reasonable doubt, that Bugh knew that he was a felon at the time that he possessed the firearm. Under Rehaif , then, Bugh's jury was not properly instructed on all elements of his crime.

A defendant relying on a new right recognized by the Supreme Court may file a § 2255 motion within one year from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). The Court finds that Rehaif recognized a new right,¹² and that the newly recognized right is retroactively applicable to cases on collateral review.¹³ The problem for Bugh is that he cannot succeed on the merits of his claim, as he cannot possibly show that the failure to instruct the jury on an element of his offense " ‘had substantial and injurious effect or influence in determining the jury's verdict.’ " Brecht v. Abrahamson , 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ).¹⁴

Prior to his trial, Bugh had been convicted of ten felonies as an adult. See PSR at ¶¶ 24-30, 32, 35. Each time he was convicted, Bugh stood in court and listened as a judge sentenced him to serve more than a year in prison. Bugh actually served more than a year in prison with respect to most of his convictions. See id. There is no question whatsoever that Bugh knew that he had previously been convicted of a crime punishable by more than one year's imprisonment. Because the government would undoubtedly have proven that Bugh had knowledge of his status as a felon,¹⁵ the error in Bugh's jury instruction did not have " ‘substantial and injurious effect or influence in determining the jury's verdict.’ " Brecht , 507 U.S. at 623, 113 S.Ct. 1710 (citation omitted); United States v. Hollingshed , 940 F.3d 410, 415-16 (8th Cir. 2019) (holding, on direct appeal, that there was not a " ‘reasonable probability that, but for the error [in the jury instruction], the outcome of the proceeding would have been different’ " because the defendant had previously served two different stints in prison exceeding one year (citation omitted)).¹⁶

For these reasons, the Court denies Bugh's § 2255 motion insofar as it is based on Rehaif .

B. Johnson Claim

Bugh next argues that the Court erred in finding that he was an armed career criminal under the ACCA. The government responds by arguing that (1) Bugh's claim is barred by the one-year statute of limitations and (2) Bugh's claim fails on the merits. The Court will address the government's arguments in turn.

1. "Actual Innocence" and the Statute of Limitations

As noted, a defendant must generally file a § 2255 motion that relies on a newly recognized right within one year of "the date on which the right asserted was initially recognized by the Supreme Court." 28 U.S.C. § 2255(f)(3). Bugh's claim that he was improperly sentenced under the ACCA is based on Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which was decided on June 26, 2015. Bugh did not file his § 2255 motion until September 17, 2019, more than four years later. See ECF No. 112. Bugh argues that his untimeliness should be excused, though, because he is "actually innocent" of being an armed career criminal. ECF No. 114.

The Supreme Court has held that a prisoner may receive habeas relief— even if his claim is barred by ...