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Campbell v. United States

United States District Court, W.D. Texas, San Antonio Division

April 19, 2017

CHARLES CAMPBELL, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant Civil Action No. SA-16-CV-623-XR

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         On this date the Court considered the Magistrate Judge's Memorandum and Recommendation (docket no. 189) concerning Campbell's Motion to Vacate (docket no. 174), the Movant's objections (docket no. 193), and the Government's Response (docket no. 195).

         When a party objects to the Magistrate Judge's report and recommendation, the Court is required to conduct a de novo review. However, when no objections are filed, the Court reviews the recommendation to determine whether it is clearly erroneous. Movant has filed objections and therefore the Court has undertaken a de novo review.

         On March 16, 2005, Campbell was charged with being a felon in possession in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He was found guilty by a jury (docket no. 110). The court imposed a sentence of 210 months' imprisonment and five years' supervised release (docket no. 127).[1]

         Campbell argues that his sentence should be vacated “because his prior robbery convictions do not involve the use, attempted use, or threatened use of force and they do not meet the definition of generic extortion.” Accordingly, he claims that his sentence was improperly enhanced by prior convictions found to be a "violent felony" under the residual clause of the Armed Career Criminal Act (“ACCA”), held to be unconstitutional in Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015).

         The Government maintains that the Defendant's sentencing range was properly enhanced on the basis of his prior Texas Robbery by Assault conviction[2] because that offense has as an element the use, attempted use, or threatened use of physical force and thus qualifies as a predicate violent felony under ACCA. As such, the Defendant's sentence was unaffected by Johnson.

         The Supreme Court in Johnson decided whether section 924(e)'s “residual clause” was unconstitutionally vague. The Act defined “violent felony” as follows:

“any crime punishable by imprisonment for a term 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.” § 924(e)(2)(B) (emphasis added).

         “The closing words of this definition, italicized above, have come to be known as the Act's residual clause.” Johnson, 135 S.Ct. at 2556. Johnson did “not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” Id. at 2563.

         Defendant was convicted of robbery by assault in 1969. The indictment reflects the following:

That on or about the 4th day of May, 1969 and anterior to the presentment of this indictment, in the County of Bexar and state of Texas, Charles Campbell did then and there unlawfully make and assault in an upon Richard Ayala and did then and there by the said assault, and by violence to the said Richard Ayala and by putting the said Richard Ayala in fear of life and bodily injury fraudulently and without the consent of Richard Ayala take from the person and possession of him, the said Richard Ayala certain property, to wit: lawful money of the United States of America.

         The arrest report reflects that on May 4, 1969, the defendant approached the counter at Olmos Theater in San Antonio. The Defendant pointed a .22 caliber revolver at the clerk and ordered the clerk to unlock the cash register and hand the currency to the Defendant. After the clerk handed the Defendant the money from the register, the ...


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