United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE
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).
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.
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
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).
Government maintains that the Defendant's sentencing
range was properly enhanced on the basis of his prior Texas
Robbery by Assault conviction 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
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
“(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).
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.
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.
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 ...