ORDER

JOAN N. ERICKSEN, District Judge.

This case is before the Court on Defendant's motion to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2255 (2012). For the reasons set forth below, the Court grants in part and denies in part Defendant's motion without an evidentiary hearing. See Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013).

A grand jury charged Defendant with conspiracy to distribute and possess with intent to distribute methamphetamine (Count 1), possession with intent to distribute methamphetamine (Count 2), possession of a firearm in furtherance of a drug trafficking crime (Count 3), armed career criminal in possession of a firearm (Count 4), and assault resulting in serious bodily injury (Count 5). A jury found him guilty of the crimes charged in Counts 1, 2, 3, and 4, as well as assault resulting in bodily injury, a lesser included offense of the crime charged in Count 5.

At sentencing, the Court concluded that Defendant was subject to the enhancements of the Armed Career Criminal Act and the career offender guidelines. The Court sentenced him to 363 months' imprisonment. The term consisted of 303 months on each of Counts 1, 2, and 4, to be served concurrently; 6 months on Count 5's lesser included offense, to be served concurrently; and 60 months on Count 3, to be served consecutively. Defendant appealed, and the Eighth Circuit affirmed. United States v. Reese, 240 F. App'x 168 (8th Cir. 2007) (unpublished per curiam).

More than eight years later, Defendant filed his § 2255 motion. Citing Johnson v. United States, 135 S.Ct. 2551 (2015), Defendant moved to be resentenced without the enhancements of the Armed Career Criminal Act or the career offender guidelines. The government did not oppose Defendant's motion insofar as Defendant asserted his sentence on Count 4 should not be enhanced under the Armed Career Criminal Act. Otherwise, the government opposed Defendant's motion.1

Count 4—Armed Career Criminal Act

"Federal law forbids certain people—such as convicted felons . . .—to ship, possess, and receive firearms. In general, the law punishes violation of this ban by up to 10 years' imprisonment. But if the violator has three or more earlier convictions for a `serious drug offense' or a `violent felony,' the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life." Johnson, 135 S. Ct. at 2555 (citations omitted). A "violent felony" is:

18 U.S.C. § 924(e)(2)(B) (2012) (emphasis added). The italicized portion of this definition is known as the residual clause. In Johnson, the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process." 135 S. Ct. at 2563. "Johnson announced a substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

Defendant was sentenced on Count 4 under the Armed Career Criminal Act based on his previous adult convictions for (1) possession of a short-barreled shotgun; (2) assault in the second degree based on an incident that took place in July 1999; and (3) assault in the second degree based on an incident that took place in September 1999.2 In light of Johnson, the government conceded that possession of a short-barreled shotgun is not a violent felony for purposes of the Armed Career Criminal Act. Thus, the government asked "that a 120-month sentence be imposed."3 The Court imposes a sentence of 120 months' imprisonment on Count 4.4 See Gardiner v. United States, 114 F.3d 734, 736 (8th Cir. 1997) ("Section 2255 affords the court broad and flexible power in correcting invalid convictions or sentences.").

Career offender guidelines

Section 4B1.1 of the United States Sentencing Guidelines creates enhanced guideline ranges for career offenders. "A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Defendant's motion relates to the third part of this definition.

When Defendant was sentenced, § 4B1.2(a) of the sentencing guidelines defined "crime of violence" as:

Thus, language identical to the now-invalidated residual clause of the Armed Career Criminal Act appeared in the definition of crime of violence. The question of whether § 4B1.2(a)'s residual clause is also invalid after Johnson is currently before the Supreme Court. See Beckles v. United States, 2016 WL 1029080 (U.S. June 27, 2016).

The Court assumes without deciding that Defendant's conviction of possession of a short-barreled shotgun is not a crime of violence. His assertion that he was improperly sentenced as a career offender nevertheless has no merit. Assault in the second degree under Minnesota law is a crime of violence. See United States v. Headbird, No. 15-3718, 2016 WL 4191186, at *2 (8th Cir. Aug. 9, 2016);5 United States v. Lindsey, 827 F.3d 733, 740 (8th Cir. 2016). Thus, Defendant had at least two prior felony convictions for crimes of violence. He was properly sentenced as a career offender.

Conclusion

Insofar as Defendant challenged his sentence on Count 4 under the Armed Career Criminal Act, the Court grants his § 2255 motion and imposes a sentence of 10 years' imprisonment. In all other respects, the Court denies Defendant's § 2255 motion.6 The Court denies Defendant's motion for appointment of counsel. See Rule 8(c) of the Rules Governing Section 2255 Proceedings for the United States District Courts. No certificate of appealability is warranted. See 28 U.S.C. § 2253(c)(2) (2012); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:

LET JUDGMENT BE ENTERED ACCORDINGLY.