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Dean v. United States

United States District Court, W.D. Kentucky, Louisville

July 9, 2018

GLENN R. DEAN MOVANT/DEFENDANT
v.
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         I. Introduction

         This matter was referred to the United States Magistrate Judge for Supplemental Findings of Fact, Conclusions of Law, and Recommendation (ECF No. 87) (“supplemental report”) following this court's consideration of Petitioner Glenn R. Dean's (“Dean”) motion to alter or amend. ECF No. 86. Dean now objects to the magistrate judge's supplemental report. ECF No. 89. For the reasons set forth below, the court will overrule Dean's objections and deny his motion to vacate.

         II. Magistrate Judge's Findings of Fact

         The magistrate judge's supplemental report lays out the facts previously set forth in the original report and this court's memorandum opinion. Dean has not objected to these findings of fact. When there is no objection, the court need not “review . . . a magistrate [judge's] factual or legal conclusions, under a de novo or any other standard . . .” Thomas v. Arn, 474 U.S. 140, 150 (1985). Accordingly, this court will accept the magistrate judge's findings of fact.

         III. Magistrate Judge's Conclusions of Law and Recommendation

         Dean objects to two legal conclusions contained in the magistrate judge's supplemental report: (1) that the argument based on Mathis v. United States, 136 S.Ct. 2243 (2016), is untimely; and (2) that Mathis does not undermine the holdings of United States v. Elliott, 757 F.3d 492 (6th Cir. 2014) or United States v. Page, 662 Fed.Appx. 337 (6th Cir. 2016). The court must make a de novo determination of those portions of the recommended disposition to which objections are filed. 28 U.S.C. § 636(b)(1)(c).

         Under the Armed Career Criminal Act (ACCA), a person convicted under 18 U.S.C. § 922(g) who also has “three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another . . . shall be fined under this title and imprisoned not less than fifteen years . . .” 18 U.S.C. § 924(e)(1). A ‘violent felony' is defined 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 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 . . .” Subsection (i), has as an element the use, attempted use, or threatened use of physical force, is known as the ‘elements clause.' The beginning of subsection (ii), burglary, arson, or extortion, is known as the ‘enumerated felonies clause.' The end of subsection (ii), otherwise involves conduct that presents a serious potential risk of physical injury to another, is known as the ‘residual clause.' The Supreme Court determined that the residual clause was unconstitutionally vague in Johnson v. United States, 135 S.Ct. 2551 (2015). This holding was made retroactive on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016).

         Dean argues that his sentence must be vacated because his ACCA enhancement is based on two prior felonies that fall under the residual clause. In making this argument, Dean relies on Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), which holds that “a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense.” Specifically, Dean contends that “[t]he 1998 Kentucky 1st degree robberies . . . that became two-prior predicates for ACCA enhancement should not qualify [under] § 924 after Mathis . . . [b]ecause the Kentucky first degree robbery statute is over-broad . . . and does not match the generic definition of physical force . . .” ECF No. 77, p. 2. Thus, “the only fall back would be the ‘residual clause' . . . [w]hich the Supreme Court in Johnson v. United States, 135 S.Ct. 2251 (2015), has found to be unconstitutionally vague.” Id. at p. 3.

         KRS § 515.020 states that:

A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
a) Causes physical injury to any person who is not a participant in the crime; or
b) Is armed with a deadly weapon; or c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.

         Although one of the elements of this statute is, uses or threatens the immediate use of physicalforce, Dean asserts that this does not match the level of physical force required under the elements clause of the ACCA. KRS § 515.010 defines ‘physical force' as “force used upon or directed toward the body of another person.” By contrast, the Supreme Court has defined ‘physical force' within the ACCA to mean “violent ...


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