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Marshall v. United States

United States District Court, N.D. Texas, Dallas Division

December 5, 2017

KARLOS MARSHALL, (BOP Registration No. 42105-177), Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ED KINKEADE, UNITED STATES DISTRICT JUDGE.

         Movant Karlos Marshall, a federal prisoner, has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence. See Dkt. No. 2. The Court DENIES the motion as meritless.

         Background

         A jury found Marshall guilty of being a felon in possession of a firearm. See United States v. Marshall, 3:10-cr-158-K (01), Dkt. No. 44. Because Marshall had two prior felony convictions for controlled substance offenses, and one prior violent felony conviction, he was sentenced under the Armed Career Criminal provisions of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 to 180 months in prison. See United States v. Marshall, 3:10-cr-158-K (01), Dkt. No. 59. His conviction and sentence were affirmed on direct appeal. See United States v. Marshall, 487 F. App'x 895 (5th Cir. 2012).

         He now argues that his sentence must be overturned in the wake of Johnson v. United States, 135 S.Ct. 2551 (2015) because his Texas conviction for aggravated assault, in violation of Tex. Penal Code § 22.01 § 22.02(a), is no longer a “violent felony” under the definition codified in 18 U.S.C. § 924(e)(2)(B). See Dkt No. 2 at 7.

         Law & Analysis

         As the Supreme Court of the United States recounted in Johnson,

Federal law forbids certain people-such as convicted felons, persons committed to mental institutions, and drug users-to ship, possess, and receive firearms. § 922(g). In general, the law punishes violation of this ban by up to 10 years' imprisonment. § 924(a)(2). But if the violator has three or more earlier convictions for a “serious drug offense” or a “violent felony, ” [Section 924] increases his prison term to a minimum of 15 years and a maximum of life. § 924(e)(1); Curtis Johnson v. United States, 559 U.S. 133, 136 (2010). The Act defines “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.

135 S.Ct. at 2555-56 (citation modified).

         In Johnson, the Supreme Court struck down the residual clause, holding “that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process.” Id. at 2563. But 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. So, after Johnson, “[a] violent felony is one of a number of enumerated offenses or a felony that ‘has an element the use, attempted use, or threatened use of physical force against the ...


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