United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
Louis Dean pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g), and one count of carrying a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c). This Court sentenced him to a 235 month term
of imprisonment on the first count, and a consecutive 60
month sentence on the second count. Both sentences were to
run concurrently to sentences Dean is serving on Texas state
convictions. In addition, this Court sentenced Dean to five
years of supervised release. See Judgment (Dkt. No.
case is now before the Court on Dean's motion to vacate,
set aside, or correct his sentence (Dkt. No. 22), and the
government's motion for summary judgment (Dkt. No. 28).
Dean did not respond to the government's motion.
carefully considered Dean's motion, the government's
motion, all the arguments and authorities submitted by the
parties, and the entire record, the Court is of the opinion
that the government's motion should be granted, and
Dean's motion should be denied.
Applicable Legal Standards
brings this motion under 28 U.S.C. § 2255, which
provides for relief “for errors that occurred at trial
or sentencing.” Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001). The motion contends that
Dean was sentenced under the Armed Career Criminal Act
(“ACCA”), part of which was held unconstitutional
by Johnson v. United States, 135 S.Ct. 2551 (2015).
government moves for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure. Rule 56(a) provides for the
entry of judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
ACCA, 18 U.S.C. § 924(e), provides for enhanced
penalties for a defendant convicted of being a felon in
possession of a firearm if that defendant has three or more
prior convictions “for a violent felony or a serious
drug offense, or both . . . .” The statute defines
“violent felony” as a crime 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 . . . .
18 U.S.C. § 924(e)(2)(B).
Johnson, the Supreme Court held that the residual
clause of the ACCA, i.e., the clause enhancing
penalties for a defendant previously convicted of a crime
that “otherwise involves conduct that presents a
serious potential risk of physical injury to another”,
is unconstitutionally vague. The Court specifically stated
that the decision did not affect “the remainder of the
Act's definition of a violent felony.”
Johnson, 135 S.Ct. at 2563. Dean, noting that he was
sentenced under the ACCA, seeks relief based on
sentencing, Dean admitted that he had three prior Texas state
convictions for aggravated robbery. See Dkt. No. 29
at 16-17. The Texas penal code defines aggravated robbery as
a robbery in which a person suffers bodily injury, certain
vulnerable categories of people are threatened with bodily
injury, or the defendant used or exhibited a deadly weapon.
Tex. Penal Code § 29.03(a). Thus, aggravated robbery
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another”, and is therefore a “violent
felony” under 18 U.S.C. § 924(e)(2)(B)(i). Because
Dean had four prior convictions for aggravated robbery, it is
clear that he was not sentenced under the residual clause,
but because he committed three or more felonies that meet the