United States District Court, C.D. Illinois, Urbana Division
DARROW UNITED STATES DISTRICT JUDGE.
James Ray Piker has filed a motion under 28 U.S.C. §
2255 in which he contends he is entitled to relief based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
Respondent United States of America (“the
Government”) concurs. Petitioner is entitled to relief
under § 2255. Petitioner's motions,  ECF No. 19,
joined by the Government, are GRANTED.
to police seizure of a loaded handgun from his pickup truck,
Piker pled guilty to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1).
Pre-Sentence Investigation Report (“PSR”) ¶
3, Cr. ECF No. 50. Piker entered into a written plea
agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules
of Criminal Procedure, in which he was treated as an armed
career criminal on the basis of four previous convictions in
Arizona: two convictions for burglary, one for escape from a
prison camp, and one for transportation of a dangerous drug
for sale. PSR ¶ 26. The Court accepted the agreement and
sentenced Piker to the agreed sentence of fifteen years.
Piker did not appeal.
filed a pro se motion, ECF No. 1, on August 3, 2015 to vacate
his sentence pursuant to 28 U.S.C. § 2255, arguing that
his prior convictions were within the residual clause of the
ACCA, which was held unconstitutionally void for vagueness
under Johnson v. United States, 135 S.Ct. 2551
(2015). On June 1, 2016, the Court appointed counsel for
Piker and on July 19, 2016, an amended petition was filed.
Am. Pet., ECF No. 19. On August 17, 2016, the Government
filed a Response indicating that it agreed Piker's
amended motion under 28 U.S.C. § 2255 should be granted.
Resp., ECF No. 21.
held that the ACCA's “residual clause, ” 18
U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague,
see 135 S.Ct. at 2563; see also United States v.
Hurlburt, 2016 WL 4506717 (7th Cir. Aug. 29, 2016), and
therefore an offense not enumerated under 18 U.S.C. §
924(e)(2)(B)(ii), must include “as an element the use,
attempted use, or threatened use of force against the person
of another, ” 18 U.S.C. § 924(e)(2)(B)(i), to be
considered a violent felony. In Welch v. United
States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court
held that Johnson's substantive rule of
constitutional law is retroactive to cases on collateral
prior convictions for escape and burglary do not qualify for
the ACCA enhancement after the Supreme Court's decision
in Johnson, 135 S.Ct. at 2563, and its progeny.
First, escape is not an enumerated offense and its elements
do not require proof that Piker used, attempted to use or
threatened to use physical force against a
person. 18 U.S.C. § 924(e)(2)(B)(i), (ii).
Accordingly, this conviction does not qualify as a violent
felony under the ACCA.
Piker argues, and the Government agrees, that the Arizona
burglary statute does not meet the generic burglary standard
required to qualify as a violent felony under the ACCA.
Specifically, the statute must forbid the “unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” Taylor
v. United States, 495 U.S. 575, 599 (1990). The Arizona
burglary statute only requires proof that “[a] person
enter[ed] a building … with intent to commit a felony,
” Ariz. Rev. Stat. § 13-302(A) (1974), and does
not require “unlawful or unprivileged entry.”
Taylor, 495 U.S. at 599; see State v.
Madrid, 552 P.2d 451, 452 (Ariz. 1976) (holding that
“[t]he elements of breaking and unlawful entry are not
essential to statutory burglary in Arizona.”). Because
the burglary statute does not require the use, attempted use
or the threat of physical force against a person, 18 U.S.C.
§ 924(e)(2)(B)(ii), the only basis for the Court to have
considered the burglary convictions as violent felonies was
under the now-unconstitutional residual clause.
has insufficient violent felony convictions to qualify for a
sentence under the ACCA.
reasons stated above, the Court GRANTS Piker's motion,
ECF No. 19, and VACATES his sentence. Piker's original
§2255 motion, ECF No. 1, and his Motion for Traverse,
ECF No. 5, are MOOTED. The Government's Motion to Correct
Instanter the Incorrect Exhibits Filed with Its Response to
the Petitioner's Motion for Traverse, ECF No. 11, is
MOOTED. The Clerk is directed to reassign the associated
criminal case, United States v. Piker,
2:05-cr-20016-JES-DGB-1 (C.D. Ill.), to Judge Sara Darrow for