United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE, UNITED STATES DISTRICT JUDGE
Robert Richardson, a federal prisoner, filed, through
court-appointed counsel, a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255.
See Dkt. No. 1. The government filed a response
opposing relief, see Dkt. No. 6, and Richardson has
filed a reply brief, see Dkt. No. 9. The Court
DENIES the Section 2255 motion for the
pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
And, under the Armed Career Criminal Act (the
“ACCA”), he was sentenced, on September 14, 2011,
to the statutory minimum of 180 months of imprisonment.
See United States v. Richardson, No. 3:09-cr-108-K-1
collaterally challenges the applicability of the ACCA to his
sentence under Johnson v. United States, 576
U.S.___, 135 S.Ct. 2551 (2015). As recounted in that
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, ” the [ACCA] 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
“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).
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).
Johnson, the Supreme Court held “that imposing
an increased sentence under the residual clause of the [ACCA]
violates the Constitution's guarantee of due
process.” Id. at 2563. The decision thus
“affected the reach of the [ACCA] rather than the
judicial procedures by which the statute is applied”
and therefore is “a substantive decision and so has
retroactive effect under Teague[ v. Lane, 489 U.S.
288 (1989), ] in cases on collateral review.” Welch
v. United States, 136 S.Ct. 1257, 1265 (2016). 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.” 135 S.Ct. at 2563.
Johnson claim under Section 2255 thus requires that
a movant show that his constitutional right to due process
was violated-or that he was sentenced in excess of the
maximum authorized by law (for example, that he received a
minimum sentence of 15 years under Section 924(e), as opposed
to a maximum sentence of 10 years under Section
924(a)(2))-because he was sentenced under the ACCA's
residual clause. And the United States Court of Appeals for
the Fifth Circuit, “join[ing] the majority of [its]
sister circuits, ” has held that a court “must
look to the law at the time of sentencing to determine
whether a sentence was imposed” in violation of
Johnson-that is, it was imposed under the ACCA's
residual clause, as opposed to its enumerated offense clause
or its force clause. United States v. Wiese, 896
F.3d 720, 724 (5th Cir. 2018) (collecting cases); see
also Id. at 725 (noting that, “[i]n determining
potential reliance on the residual clause by the sentencing
court, ” a reviewing court “may look to (1) the
sentencing record for direct evidence of a sentence, and (2)
the relevant background legal environment that existed at the
time of the defendant's sentencing and the presentence
report (‘PSR') and other relevant materials before
the district court” (citations, internal quotation
marks, and brackets omitted)).
to his conviction in this Court, Richardson was convicted of
murder in Dallas County. See State v. Richardson,
No. F05-19422 (194th Jud. Dist. Ct., Dallas Cnty., Tex.);
Richardson, No. 3:09-cr-108-K-1, Dkt. No. 80-1 at
21-43 (relevant charging documents, written plea agreements,
judicial confessions, and criminal judgment included in the
PSR). Richardson fired multiple rounds through the door of
the victim's residence, killing the victim.
also in Dallas County, he was twice convicted of aggravated
assault with a deadly weapon. See State v.
Richardson, Nos. F03-19397 & -19398 (194th Jud.
Dist. Ct., Dallas Cnty., Tex.); Richardson, No.
3:09-cr-108-K-1, Dkt. No. 80-1 at 21-43 (relevant charging
documents, written plea agreements, judicial confessions, and
criminal judgment included in the PSR). As to the first
aggravated-assault conviction, Richardson threatened the
victim with bodily ...