USA v. Beckman

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL LEE BECKMAN,
Defendant.
Case No. 3:03-CR-00096-RRB
Opinion and Order Denying
Amended Motion to Vacate
Sentence
I. INTRODUCTION
Before the Court is a 28 U.S.C. § 2255 petition filed by Petitioner Michael Lee Beckman.
Beckman contends that “his sentence should be vacated and modified based on recent U.S. Supreme
Court jurisprudence.” Specifically, Beckman claims that Descamps v. United States, _ U.S. _, 1331
S.Ct. 2276 (2013), supports his previous argument, made at sentencing, that his “1982 state
conviction for Burglary in the Second Degree did not qualify as a predicate violent felony under the
Armed Career Criminal Act (ACCA) because the Alaska burglary statutes exceed the scope of the
generic definition of ‘burglary’ applicable under the ACCA.” Beckman also claims that according2
to Alleyne v. United States, _ U.S. _, 133 S.Ct. 2151 (2013), the Sixth Amendment required that a
Docket No. 46 at 2.1
Id.2
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jury, not a court, find the facts that led to his mandatory minimum sentence of fifteen years under
the ACCA.3
After careful consideration, and in light of the discussion below, the Court concludes that
neither Descamps nor Alleyne applies to Beckman’s sentencing. Thus, the Amended Motion to
Vacate Sentence is DENIED.
II. STANDARD OF REVIEW
Under 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States . . . or that the
sentence was in excess of the maximum authorized by law . . . may move the court
which imposed the sentence to vacate, set aside or correct the sentence.
III. BACKGROUND
In April 2003, Beckman was indicted for being a Felon in Possession of a Firearm and for
Possession of Stolen Firearms. He subsequently pleaded guilty to both counts in July 2003. At4 5
sentencing, Beckman’s presentence report stated that he should be sentenced under the ACCA, with
a mandatory minimum of fifteen years, based on three state-court convictions: second-degree
burglary in 1982, first-degree burglary in 1985, and first-degree robbery in 1994.6
On December 8, 2003, “[t]he sentencing court applied a ‘modified categorical’ analysis to
the issue and found that the indictment and judgment of conviction were sufficient to support a
See id. at 3.3
Id. at 1.4
Id. at 2.5
Docket No. 50 at 3.6
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finding that [Beckman’s] burglary conviction was a ‘crime of violence’ under the ACCA and
sentenced [him] to 15 years imprisonment.”7
“On appeal, the Ninth Circuit Court of Appeals affirmed the sentence.” The Ninth Circuit8
panel held “that the court correctly counted Beckman’s 1982 conviction as a predicate ‘crime of
violence.’” The Ninth Circuit affirmed the court’s application of the modified categorical approach9
and held that both the Supreme Court and the Ninth Circuit have made clear that a burglary
conviction under a nongeneric statute, such as Alaska’s second-degree burglary statute, may qualify
as a violent felony for purposes of the ACCA if the charging documents, in combination with a
signed plea agreement, guilty pleas, transcript of plea proceedings, or judgment, reflect that the
defendant pled guilty to a crime that contains all the elements of generic burglary. The panel10
specifically found that the indictment relating to Beckman’s 1982 conviction, together with the
judgment of conviction, made it clear that the second-degree burglary conviction satisfied the generic
definition of burglary.11
Docket No. 46 at 2.7
Id.8
Docket No. 50 at 8.9
Id. at 9 (quoting United States v. Beckman, 140 F.App’x. 676, 677 (9th Cir. 2005)).10
Id.11
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IV. DISCUSSION
A. Descamps does not apply to Alaska’s burglary statute.
Beckman argues that the law outlined in Decamps dictates that the application of the
“modified categorical approach” in his case requires that he be resentenced. However, the12
reasoning set out in Descamps applies only to “indivisible” statutes, not divisible statutes like
Alaska’s burglary statute.
Under the ACCA, if a person violates 18 U.S.C. § 922(g), Felon in Possession of a Firearm,
and has three previous convictions by any court for a violent felony, such person shall be imprisoned
not less than fifteen years. According to 18 U.S.C. § 924(e)(2)(B), a “violent felony” is any crime13
punishable by imprisonment for a term exceeding one year that constitutes, inter alia, burglary. In
other words, the ACCA “increases the sentences of certain federal defendants who have three prior
convictions ‘for a violent felony,’ including ‘burglary’ . . . .”14
To determine whether a past conviction is for a violent felony courts use what has become
known as the “categorical approach.” Under such an approach, the courts “compare the elements15
of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’
crime— i.e., the offense as commonly understood.” “The prior conviction qualifies as an ACCA16
Docket No. 46 at 4.12
18 U.S.C. § 924(e)(1) (2006).13
Descamps, 133 S.Ct. at 2281 (quoting § 924(e)(1)).14
Id.15
Id.16
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predicate only if the statute’s elements are the same as, or narrower than, those of the generic
offense.”17
A variant of the “categorical approach” is “the ‘modified categorical approach’—when a
prior conviction is for violating a so-called ‘divisible statute.’” “That kind of statute sets out one18
or more elements of the offense in the alternative—for example, stating that burglary involves entry
into a building or an automobile.” “If one alternative (say, a building) matches an element in the19
generic offense, but the other (say, an automobile) does not, the modified categorical approach
permits sentencing courts to consult a limited class of documents . . . to determine which alternative
formed the basis of the defendant’s prior conviction.” “The court can then do what the categorical20
approach demands: compare the elements of the crime of conviction (including the alternative
element used in the case) with the elements of the generic crime.”21
In Descamps, the Supreme Court was tasked with deciding whether sentencing courts could
employ the modified categorical approach when a defendant is convicted under an indivisible
statute. After reviewing the California statute at issue, the Court held “that sentencing courts may22
not apply the modified categorical approach when the crime of which the defendant was convicted
Id.17
Id.18
Id.19
Id.20
Id.21
Id. at 2281-82.22
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has a single, indivisible set of elements.” The Court explained that unlike in a divisible statute23
where certain offense elements are listed in the alternative, the statute at issue in Descamps defined
burglary more broadly than the generic offense. The Court reasoned that “if the statute sweeps24
more broadly than the generic crime, a conviction under that law cannot count as an ACCA
predicate, even if the defendant actually committed the offense in its generic form. The key . . . is
elements, not facts.” Thus, the Supreme Court in Descamps determined that the modified approach25
could not convert the defendant’s burglary conviction into an ACCA predicate.26
Here, Beckman takes issue with his 1982 state burglary conviction under AS 11.46.310(a),
which states that “[a] person commits the crime of burglary in the second degree if the person enters
or remains unlawfully in a building with intent to commit a crime in the building.” At first blush,
the Alaska statute appears to define burglary with a single, indivisible set of elements. However,
upon closer inspection of the relevant statutory definitions, the word “‘building’, in addition to its
usual meaning, includes any propelled vehicle . . . adapted for overnight accommodation of persons
or for carrying on business . . . .” Thus, a person could be convicted of violating the burglary27
statute under which Beckman was convicted by entering or remaining unlawfully in either a building
or a vehicle. Consequently, because the Alaska statute lists one of its elements in the alternative,
Id.23
Id. at 2283 (the statute was defined “so broadly as to include shoplifting.” (internal24
quotation marks omitted)).
Id.25
Id.26
AS 11.81.900(b)(5) (2012) (emphasis added).27
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according to Descamps, the statute is divisible, and as such, Beckman’s sentencing court was
permitted to use the modified categorical approach in determining whether or not Beckman’s 1982
burglary conviction counted as an ACCA predicate. Indeed, when explaining when courts should
use the modified categorical approach, the Supreme Court anticipated this very scenario.28
Therefore, because AS 11.46.310(a) is a divisible statute, the recent precedent of Descamps,
explaining that the modified categorical approach cannot be applied to an indivisible statute to
determine if a conviction under such statute counts as an ACCA predicate, does not apply to
Beckman’s sentencing vis-à-vis his 1982 state second-degree burglary conviction. Beckman’s
sentencing court did not err in applying the modified categorical approach when setting Beckman’s
mandatory minimum sentence at fifteen years under the ACCA. Nor did the Ninth Circuit commit
error in affirming the sentence.
Descamps, 133 S.Ct. at 2283-84 (“We hypothesized a statute with alternative28
elements—more particularly, a burglary statute (otherwise conforming to the generic crime) that
prohibits entry of an automobile as well as a building. One of those alternatives (a building)
corresponds to an element in generic burglary, whereas the other (an automobile) does not.”
(emphasis added) (internal quotation marks omitted)); United States v. Grisel, 488 F.3d 844,
847-49 (9th Cir. 2007) (“The Court noted that a few states define burglary more broadly than
generic burglary by including places, such as automobiles and vending machines, other than
buildings.” (internal quotation marks omitted)); United States v. Bonat, 106 F.3d 1472, 1475 (9th
Cir. 1997) (“[I]f a burglary statute allowed conviction if a defendant unlawfully entered either an
automobile or a building with the intent to commit a crime, that statute would be too broad
because it did not require that the defendant enter a building or other structure.”). The basic
elements of generic burglary are (1) unlawful or unprivileged entry into, or remaining in, (2) a
building or structure, (3) with intent to commit a crime. Descamps, 133 S.Ct. at 2283.
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B. Alleyne does not require sentencing factors analyzed under the modified
categorical approach to be found by a jury.
Beckman next contends that, according to Alleyne, the facts supporting the imposition of his
mandatory minimum sentence of fifteen years under the ACCA should have been “found by a jury
under the Sixth Amendment.” The Court disagrees.29
In Alleyne, the petitioner’s five-year mandatory minimum sentence for using or carrying a
firearm in relation to a crime of violence was increased to seven years when the district court found
that the petitioner had brandished his firearm. The presentence report recommended the seven-30
year sentence, but the jury had not found “brandishing” beyond a reasonable doubt. The Supreme31
Court held that it was error for the petitioner’s mandatory minimum sentence to be increased without
the underlying fact supporting such increase going before the jury. The Court reasoned that “any32
fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.”33
“Juries must find any facts that increase either the statutory maximum or minimum because the Sixth
Amendment applies where a finding of fact both alters the legally prescribed range and does so in
a way that aggravates the penalty.” “[T]he essential Sixth Amendment inquiry is whether a fact34
is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to
Docket No. 46 at 3.29
Alleyne, 133 S.Ct. 2152.30
Id.31
Id. at 2155.32
Id.33
Id. at 2161 n. 2.34
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aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to
the jury.” In sum, the Supreme Court in Alleyne took the Sixth-Amendment factual requirements35
of Apprendi v. New Jersey, 530 U.S. 466 (2000), and applied them to mandatory minimum
sentences.
Yet, the Supreme Court also explained what its ruling in Alleyne did not entail: “Our ruling
today does not mean that any fact that influences judicial discretion must be found by a jury.” A36
“finding of fact [that] both alters the legally prescribed range and does so in a way that aggravates
the penalty . . . is distinct from factfinding used to guide judicial discretion in selecting a punishment
“‘within limits fixed by law.’” “While such findings of fact may lead judges to select sentences37
that are more severe than the ones they would have selected without those facts, the Sixth
Amendment does not govern that element of sentencing.” “[B]road sentencing discretion, informed38
by judicial factfinding, does not violate the Sixth Amendment.” “[W]ithin the limits of any39
discretion as to the punishment which the law may have allowed, the judge, when he pronounces
sentence, may suffer his discretion to be influenced by matters shown in aggravation or mitigation,
not covered by the allegations of the indictment.” “[E]stablishing what punishment is available by40
Id. at 2162-63.35
Id. at 2163.36
Id. at 2161 n. 2 (quoting Williams v. New York, 337 U.S. 241, 246 (1949)).37
Id.38
Id. at 2163.39
Id. (internal quotation marks omitted) (quoting 1 J. Bishop, Criminal Procedure § 85, p.40
54 (2d ed. 1872).
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law and setting a specific punishment within the bounds that the law has prescribed are two different
things.” The Supreme Court’s decision in Alleyne “is wholly consistent with the broad discretion41
of judges to select a sentence within the range authorized by law.”42
Additionally, the fact of a prior conviction does not need to be submitted to a jury and proven
beyond a reasonable doubt. Moreover, the “modified categorical approach merely assists the43
sentencing court in identifying the defendant’s crime of conviction, as we have held the Sixth
Amendment permits.” “[T]he modified approach serves a limited function: It helps effectuate the44
categorical analysis when a divisible statute, listing potential offense elements in the alternative,
renders opaque which element played a part in the defendant’s conviction.”45
Applied in that way—which is the only way we have ever allowed—the
modified approach merely helps implement the categorical approach when a
defendant was convicted of violating a divisible statute. The modified approach thus
acts not as an exception, but instead as a tool. It retains the categorical approach’s
central feature: a focus on the elements, rather than the facts, of a crime. And it
preserves the categorical approach’s basic method: comparing those elements with
the generic offense’s. All the modified approach adds is a mechanism for making that
comparison when a statute lists multiple, alternative elements, and so effectively
creates “several different . . . crimes.”46
Id. (internal quotation marks omitted) (quoting Apprendi v. New Jersey, 530 U.S. 466,41
519 (2000) (Thomas, J., concurring).
Id.42
United States v. Sanchez-Cervantes, 282 F.3d 664, 666-67 (9th Cir. 2002) (quoting43
Apprendi, 530 U.S. at 490).
Descamps, 133 S.Ct. At 2288-2289.44
Id. at 2283.45
Id. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).46
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However, “[b]ecause a sentencing court’s finding of a predicate offense under the Armed Career
Criminal Act ‘indisputably increases the maximum penalty,’ such a finding would ‘raise serious
Sixth Amendment concerns if it went beyond merely identifying a prior conviction.’”47
Here, Beckman’s sentencing court used the modified categorical approach in exactly the way
permitted by the Sixth Amendment and by the Supreme Court. Because Beckman’s 1982 second-
degree burglary conviction was based on a divisible Alaska statute, the sentencing court employed
the modified categorical approach in order to perform the simple, unobtrusive task of determining
whether or not Beckman had pleaded guilty to all of the elements of generic burglary. The
sentencing court used such approach merely to identify Beckman’s prior conviction, a use that is
allowed and contemplated by the Supreme Court in both Descamps and Alleyne. Hence, the facts
supporting the imposition of Beckman’s mandatory minimum sentence did not have to be submitted
to a jury and proven beyond a reasonable doubt.
V. CONCLUSION
For the foregoing reasons, Petitioner’s Amended Motion to Vacate Sentence at Docket
Number 46 is DENIED. Additionally, Petitioner’s Motion to Vacate Sentence at Docket Number48
43 is DENIED as moot.
ORDERED this 28th day of February, 2014.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
United States v. Bell, Nos. CR 09–14–H–DWM, CV 13–47–H–DWM, 2013 WL47
6190281, at *8 (D. Mont. Nov. 26, 2013) (quoting Descamps, 133 S.Ct. at 2288).
Because the Court concludes that neither Descamps nor Alleyne applies in Beckman’s48
case, the Court does not need to reach the retroactivity issue.
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