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Smith v. United States
GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
ORDER DIRECTING SUPPLEMENTAL BRIEFING
On November 17, 2009, Movant Michael Smith pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Although the offense generally carries a maximum term of imprisonment of ten years, see 18 U.S.C. §§ 922(g), 924(a)(2), the Court was required to sentence Movant to a mandatory minimum fifteen-year sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 924(e)(1), once it found Movant's three prior Missouri burglary convictions qualified as violent felonies.
In the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), the Eighth Circuit granted Movant permission to file a second motion to litigate whether his prior burglary convictions do, in fact, qualify as violent felonies under the ACCA. After the parties submitted their initial round of briefs, several relevant decisions have been released.
Movant previously filed a § 2255 motion which the Court denied.
In light of the Eighth Circuit Court of Appeal's recent decisions in United States v. Sykes, 844 F.3d 712 (8th Cir. 2016), and United States v. Phillips, — F.3d —, 2017 WL 1228563 (8th Cir. 2017), the Court directs the parties to submit additional briefing on the question of whether Movant's two prior second-degree burglary convictions of "an inhabitable structure" were "of a building" and thus qualify as violent felonies under the ACCA. The Court specifically directs the parties to discuss whether it can be shown via Shepard documents, or otherwise, that Movant's second-degree burglary convictions were for burglarizing "a building." See Phillips, 2017 WL 1228563, at *3 (noting the Government argued that reference to a physical street address, together with the description of it as inhabitable, demonstrates from the face of the charging document that the defendant was charged with unlawfully entering a building). The parties should not brief whether Movant has procedurally defaulted his claim.
By Shepard documents, the Court means that limited class of documents, including the charging document, plea agreement, or the plea colloquy, which the Court may use to determine whether Movant burglarized a building. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); Shepard v. United States, 544 U.S. 13, 26 (2005). --------
The Court recognizes it may take some time to gather the relevant Shepard documents. Accordingly, the Government's brief shall be filed on or before June 12, 2017. Movant's brief shall be filed on or before July 3, 2017. Neither brief shall exceed ten pages, exclusive of exhibits such as Shepard documents.
IT IS SO ORDERED. Date: May 1, 2017
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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