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Bargeron v. United States

United States District Court, M.D. Florida, Jacksonville Division

April 26, 2017

BURL BARGERON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARCIA MORALES HOWARD United States District Judge

         This case is before the Court on Petitioner Burl Bargeron's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 11, Amended Motion to Vacate) and Supporting Memorandum (Civ. Doc. 19, Supporting Memorandum).[1] Relying in part on Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), Bargeron argues that his sentence was unconstitutionally enhanced under the “residual clause” of the Armed Career Criminal Act (ACCA). The United States has responded (Civ. Doc. 7, Motion to Dismiss; Civ. Doc. 20, Response), and Bargeron has replied (Civ. Doc. 23, Reply). For the reasons set forth below, Bargeron's Amended Motion to Vacate is due to be denied.

         I. The ACCA

         Ordinarily, possession of a firearm by a convicted felon is punishable by a maximum term of imprisonment of ten years. 18 U.S.C. §§ 922(g)(1), 924(a)(2). Under the ACCA, however, a felon in possession of a firearm who has at least three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another, ” is subject to a 15-year mandatory minimum term of imprisonment. Id. at § 924(e)(1).

         The ACCA defines the term “violent felony” as any crime punishable by a term of imprisonment 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.

Id. at § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is often referred to as the “elements clause.” Subpart (ii) has two components: the first nine words constitute the “enumerated offense clause, ” and the last 15 words, which are emphasized above, are referred to as the “residual clause.” See Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016).

         II. Johnson and Welch

         On June 26, 2015, the Supreme Court in Johnson held that the ACCA's residual clause is unconstitutionally vague because the residual clause “creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony.” In re Moore, 830 F.3d 1268, 1270 (11th Cir. 2016) (citing Johnson, 135 S.Ct. at 2557-58, 2563). However, the Supreme Court's holding did not call into question the validity of the elements clause or the enumerated offense clause. Johnson, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held in Welch that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 136 S.Ct. at 1264-65.

         III. Background

         On June 11, 2009, a grand jury sitting in the Middle District of Florida indicted Bargeron on two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Crim. Doc. 1, Indictment). Bargeron proceeded to a bench trial on stipulated facts, at the conclusion of which the Court found him guilty of both charges. (See Crim. Doc. 89, Bench Trial Transcript at 22-24).

         The main issue in Bargeron's criminal case was whether he qualified to be sentenced under the ACCA, 18 U.S.C. § 924(e). The United States contended that Bargeron qualified for the ACCA enhancement because he had three prior convictions for a “serious drug offense.” (See Crim. Doc. 64, USA's Sentencing Memorandum; Crim. Doc. 68, USA's Supplemental Sentencing Memorandum). Those offenses were as follows: (1) a federal conviction on May 1, 2003, for conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846, in the United States District Court for the Middle District of Florida, Case Number 3:02-cr-183-J-21TEM (“the Conspiracy Offense”); (2) a state conviction on May 29, 2003, for trafficking methamphetamine, in the Circuit Court for the Third Judicial Circuit in and for Hamilton County, Florida (“the Hamilton County Offense”); and (3) a state conviction on May 29, 2003, for trafficking methamphetamine, in the Circuit Court for the Third Judicial Circuit in and for Columbia County, Florida (“the Columbia County Offense”).

         The ACCA issue centered on whether the Conspiracy Offense was committed on an occasion different from the Hamilton County and Columbia County Offenses. (See Crim. Doc. 65 Bargeron's Sentencing Memorandum; Crim. Doc. 69, Bargeron's Supplemental Sentencing Memorandum).[2] The thrust of Bargeron's argument was that the Hamilton County and Columbia County Offenses were part-and-parcel of the Conspiracy Offense, and as such, the Conspiracy Offense should not be counted separately from the two substantive drug offenses. Bargeron's Supplemental Sentencing Memorandum at 3. The United States argued that the Conspiracy Offense was separate from the Hamilton County and Columbia County Offenses because, although the substantive offenses occurred within the conspiracy, the Conspiracy Offense encompassed additional conduct that occurred at different times and places from the Hamilton County and Columbia County Offenses. USA's Sentencing Memorandum at 8-14.

         After reviewing the parties' sentencing memoranda, and following an extended sentencing hearing that took place over the course of three days (see Civ. Doc. 7-1, Sentencing Transcript Volume I [“Sent. Tr. Vol. I”]; Civ. Doc. 7-2, Sentencing Transcript Volume II [“Sent. Tr. Vol. II”]; Civ. Doc. 7-3, Sentencing Transcript Volume III [Sent. Tr. Vol. III”]), the Court agreed with the United States that the Conspiracy Offense was separate from the Hamilton County and Columbia County Offenses, Sent. Tr. Vol. III at 3-10. The Court explained that the crime of conspiracy “is a crime separate and apart from … any substantive acts that may be committed as part of the conspiracy, ” and that the crime of conspiracy was completed once Bargeron joined it. Id. at 4. As such, the Conspiracy Offense is “a separate and complete offense well before the May 16th [2002] distribution and the May 30th [2002] distribution and possession that occurred in Hamilton and Columbia Counties, respectively.” Id. at 4-5. The Court found support for that conclusion in the following passage from United States v. Rice, 43 F.3d 601 (11th Cir. 1995):

An ongoing course of criminal conduct such as narcotics trafficking may involve many such criminal episodes, each a discrete occurrence. The fact that all are related, part of a series, or part of a continuous course of criminal dealing, does not necessarily render them a ‘single' criminal episode, particularly where the episodes occur over time. To so hold would insulate the very career criminals the statute is designed to reach-those continuously engaged in criminal conduct.

Sent. Tr. Vol. III at 5 (quoting Rice, 43 F.3d at 608) (quoting United States v. Maxey, 989 F.2d 303, 307 (9th Cir. 1993)).

         Additionally, the Court explained that the conduct underlying the Conspiracy Offense included activity that was distinct in time, location, and character from the conduct underlying the Hamilton County and Columbia County trafficking offenses. Whereas the conduct underlying the Hamilton County and Columbia County Offenses took place on May 16, 2002, and May 30, 2002, respectively, the conduct underlying the Conspiracy Offense lasted from November 2001 through May 2002. Sent. Tr. Vol. III at 5-6. The conduct underlying the two substantive trafficking offenses also occurred discretely in Hamilton County and Columbia County, whereas the conduct underlying the conspiracy spanned across Hamilton County, Columbia County, and Suwannee County, Florida (where law enforcement discovered a meth lab that was part of the conspiracy). Id. at 5, 7. And whereas the conduct underlying the Hamilton County and Columbia County trafficking offenses involved the distribution of methamphetamine, the conduct underlying the conspiracy involved Bargeron obtaining materials for manufacturing methamphetamine and “serving as a lookout for another individual cooking methamphetamine[.]” Id. at 7. Thus, the Court was “firmly convinced that these three offenses are separate offenses which must each count as a separate conviction for purposes of the ACCA.” Id. at 8.

         Accordingly, the Court determined that Bargeron had three separate convictions for “serious drug offenses, ” which qualified him for a sentence under the ACCA. The United States and Bargeron each requested that the Court impose the mandatory minimum prison sentence of 180 months (15 years). Id. at 11-12. The Court followed that recommendation and sentenced Bargeron to concurrent terms of imprisonment of 180 months as to Counts One and Two, followed by a four-year term of supervised release. Id. at 13.

         Bargeron filed a timely appeal. (Crim. Doc. 78, Notice of Appeal). “On appeal, Bargeron argue[d] that the district court erred in applying the ACCA 15-year minimum sentence because his conspiracy offense did not occur on a different occasion than his two trafficking offenses.” United States v. Bargeron, 435 F. App'x 892, 893 (11th Cir. 2011). The Eleventh Circuit neither expressly affirmed nor disturbed the Court's “different occasions” ruling. Instead, the Eleventh Circuit avoided the question and held that, “even if the district court erred by concluding that Bargeron's conspiracy conviction qualified as a third predicate ACCA conviction, any such error was harmless, ” because “Bargeron stipulated to a 1999 Florida conviction for burglary of a structure.” Id. at 894. The court reasoned as follows:

Burglary of a structure, at the time of Bargeron's offense, constituted a generic burglary to the extent the crime involved a building because it criminalized the unlawful entering or remaining in a building with the intent to commit an offense therein. Compare Fla. Stat. 810.02(1)(a) (1998) with Taylor, 495 U.S. at 599, 110 S.Ct. 2143.[3] To the extent the offense involved the curtilage of a building, it involved conduct that presented a serious potential risk of physical injury to another. See Matthews, 466 F.3d at 1275-76.[4] And at minimum, a Florida burglary offense was punishable by up to 5 years imprisonment. See Fla. Stat. § 810.02(4) (1998); Fla. Stat. § 775.082(3)(d) (1998). Consequently, regardless of whether the offense involved a building or its curtilage, burglary of a structure qualified as a “violent felony.”

Bargeron, 435 F. App'x at 894. The court added that “Bargeron's burglary offense occurred on a different occasion [from] his two trafficking offenses, ” as it occurred at least four years before the drug offenses. Id. Thus, the court concluded that Bargeron “had three qualifying prior convictions even if his conspiracy conviction is disregarded, and was subject to the ACCA 15-year statutory minimum sentence.” Id.

         Bargeron petitioned the Supreme Court for a writ of certiorari, but the Supreme Court denied the petition on December 5, 2011. Bargeron v. United States, 132 S.Ct. 829 (2011).

         IV. Bargeron's Amended Motion to Vacate (Doc. 11)

         In the Amended Motion to Vacate, Bargeron raises three claims. First, Bargeron contends that, in light of Johnson, 135 S.Ct. 2551, his sentence was unlawfully enhanced under the ACCA's residual clause. Amended Motion to Vacate at 4; Supporting Memorandum at 1-4. Bargeron points to the fact that on direct appeal, the Eleventh Circuit affirmed the ACCA enhancement due to a prior burglary conviction, and in doing so the Eleventh Circuit relied in part on the now-invalid residual clause. See Bargeron, 435 F. App'x at 894. Bargeron further argues that, in light of Taylor, 495 U.S. 575, and Mathis v. United States, 136 S.Ct. 2243 (2016), Florida ...


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