Brian Williams v. United States

927 F.3d 427
Court of Appeals for the Sixth Circuit·Decided June 11, 2019·No. 17-3211·Published·Cited by 27 cases

Opinions

KAREN NELSON MOORE, Circuit Judge.

*430This case returns to us on remand from our en banc court in light of the en banc court's decision in United States v. Burris , 912 F.3d 386 (6th Cir. 2019) (en banc). Since we last addressed Petitioner-Appellant Brian Williams's collateral attack on his federal sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) ; see Williams v. United States , 875 F.3d 803 (6th Cir. 2017), and while granting Williams's petition for rehearing en banc, 882 F.3d 1169 (6th Cir. 2018), our court has raised concerns regarding Williams's ability to raise a cognizable motion for relief under 28 U.S.C. § 2255 in light of various provisions constraining collateral review. In this opinion, per the en banc court's remand, we address those concerns in light of the comprehensive argument before the en banc court and then proceed to address the merits of Williams's motion in light of Burris . Because Williams qualifies for review under § 2255 and because no ACCA provision justifies his sentence, we VACATE Williams's sentence and REMAND for resentencing.

I. BACKGROUND

A. Williams's Conviction for Ohio Felonious Assault

In early 2000, Williams was indicted for, pleaded guilty to, and was convicted of attempted felonious assault in violation of Ohio Rev. Code § 2903.11(A). R. 39-3 (State Indictment and Journal Entry) (Page ID #227-28); R. 48-1 (State Sentencing Tr. at 7-8, 11) (Page ID #389-90, 393). Ohio Rev. Code § 2903.11(A) provides:

No person shall knowingly do either of the following:
(1) Cause serious physical harm to another ...;
(2) Cause or attempt to cause physical harm to another ... by means of a deadly weapon or dangerous ordnance.

Ohio law in turn defines "serious physical harm," as included in § 2903.11(A)(1), to include "[a]ny mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment." Ohio Rev. Code § 2901.01(A)(5)(a). As Williams points out, none of the Shepard documents surrounding that conviction, see Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), makes clear which of the two prongs of § 2903.11(A) Williams was convicted of having violated. Appellant's Br. at 16.1 The Government does not dispute this characterization of the Shepard documents.

B. Williams's Sentencing as an Armed Career Criminal

In 2006, Williams was indicted for, pleaded guilty to, and was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in the U.S. District Court for the Northern District of Ohio. R. 1 (Indictment) (Page ID #3-4); R. 19 (Judgment at 1) (Page ID #39). The ACCA applied then (and continues to apply) to anyone convicted of violating § 922(g) who "has three previous convictions *431... for a violent felony." 18 U.S.C. § 924(e)(1). The probation department recommended that Williams be sentenced as an armed career criminal under the ACCA, and the sentencing judge, Judge Dowd, agreed. See R. 18 (Sentencing Mem. Op. at 4) (Page ID #37); R. 25 (Sentencing Tr. at 2) (Page ID #116); Presentence Report ("PSR") at 1, 7-8. Williams's 2000 conviction for attempted felonious assault under Ohio Rev. Code § 2903.11(A) was one of the three prior convictions on which the probation department-and, ultimately, Judge Dowd-based this conclusion. See PSR at 1, 7-8; see also R. 1 (Indictment) (Page ID #3-4).

At the time, the ACCA defined "violent felony" to include any felony punishable by over one year of imprisonment that either:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another ["elements clause"]; or
(ii) is burglary, arson, or extortion, involves use of explosives ["enumerated-crimes clause"], or otherwise involves conduct that presents a serious potential risk of physical injury to another ["residual clause"] ....

18 U.S.C. § 924(e)(2)(B). The parties agree that neither Judge Dowd nor probation specified the grounds on which Williams's 2000 conviction qualified as an ACCA predicate and that nothing else in the sentencing record sheds further light. See Appellant's Br. at 41; Appellee's Br. at 5, 53. Williams was sentenced to 180 months in prison. R. 19 (Judgment at 2) (Page ID #40).

C. Prior § 2255 Petitions and Intervening Legal Developments

Williams soon began seeking postconviction relief. In 2007, he moved pro se to vacate his sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel, lack of federal jurisdiction for failure to satisfy the interstate-commerce element, and double jeopardy. R.

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