Sentencing Career Criminal Classification

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7^th Circuit Court of Appeals

Case Name: Clayton Lee Waagner v. United States of America

Case No.: 19-3008

Officials: SYKES, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

Focus: Sentencing Career Criminal Classification

Clayton Waagner filed a second collateral attack on his sentence under 28 U.S.C. § 2255. He now claims that his classification as an armed career criminal under the Armed Career Criminal Act (“ACCA”) is improper in light of the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015). Specifically, he challenges the classifications of his Ohio aggravated burglary convictions and Ohio attempted robbery conviction as violent felonies under the ACCA. The district court denied his motion. It concluded that, although his prior convictions for Ohio aggravated burglary no longer constitute predicate offenses for ACCA purposes under the invalidated residual clause, they still qualify as predicate offenses under the enumerated offenses clause of that statute.

We now affirm the judgment of the district court. We agree with Mr. Waagner that the advent of Johnson permits him to bring a second motion under § 2255, because prior to Johnson, any such challenge would have been futile. Nonetheless, because Ohio aggravated burglary and Ohio attempted robbery are violent felonies as that term is defined in the ACCA, the sentencing court properly adjudicated Mr. Waagner as an armed career criminal.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.