IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DERRICK MARQUET JEFFERSON, )

Movant, ) CRIMINAL NO: 10-00141-KD

 )

v. )

 )

UNITED STATES OF AMERICA ) 

Respondent. ) 

ORDER

This matter is before the Court on Movant Derrick Marquet Jefferson’s Motion to Vacate 

pursuant to 28 U.S.C. § 2255, the United States’ response, Jefferson’s amended reply, and 

supplemental briefing. (Docs. 28, 34, 36, 38, 40, 41, 42, 43). Upon consideration, the motion is 

GRANTED. Re-sentencing is set for January 20, 2017 at 11:00 a.m. 

Jefferson’s motion challenges his 180 month sentence, which was enhanced pursuant to 

the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(1). The ACCA provides that 

a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a violent felony

or serious drug offense is subject to a fifteen-year statutory minimum sentence. See § 924(e)(1).

At sentencing, Court relied upon the following Alabama convictions in enhancing Jefferson’s 

sentence: manslaughter, second degree assault, and second degree robbery. (Doc. 20, PSI at ¶¶ 

27, 39, and 30).

The ACCA defines a violent felony as any crime punishable by imprisonment for a term 

exceeding one year that: (1) has as an element the use, attempted use, or threatened use of 

physical force against the person of another; (2) is burglary, arson, or extortion, or involves use 

of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical 

injury to another. 18 U.S.C. § 924(e)(2)(B); Mays v. United States, 817 F.3d 728, 730-31 (11th 

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Cir. 2016). These three “clauses” are known as the “elements clause,” the “enumerated clause,” 

and the “residual clause,” respectively. Mays at 731. On June 26, 2015, the Supreme Court held 

that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty 

about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a 

violent felony. Johnson v. United States, 135 S. Ct. 2251, 2557-58, 2563 (2015). The Supreme 

Court clarified that, in holding that the residual clause is void, it did not call into question the 

application of the elements clause and the enumerated crimes of the ACCA’s definition of a 

violent felony. Id at 2563.1

Jefferson claims Johnson applies, and that his sentence was improperly enhanced 

pursuant to the ACCA because, without the application of the residual clause, he no longer has 

three qualifying predicate offenses. Jefferson concedes that his conviction for second degree 

robbery qualifies as an ACCA predicate offense based on the elements clause. (Doc. 28 at 6). At 

the hearing held on June 14, 2016, the Court previously determined that Jefferson’s conviction 

for second degree assault remains a proper ACCA predicate, pursuant to the elements clause.2

See also United States v. Anderson, 442 F. App’x 537, 539–40 (11th Cir. 2011) (per curiam) 

(concluding that Alabama’s assault in the second degree statute is broader than ACCA provision 

defining violent felony, because conviction could be for reckless or intentional conduct under 

different alternative elements of statute, and reckless conduct did not necessarily require use of 

physical force, such that modified categorical approach was properly applied to determine 

whether offense qualified). 

 1 This is Jefferson’s first motion pursuant to § 2255. In Welch v. United States, the Supreme Court held that Johnson

applied retroactively to cases on collateral review. 136 S. Ct. 1257 (2016). In Mays v. United States, the Court of 

Appeals for the Eleventh Circuit held that Johnson and Descamps v. United States, 133 S. Ct 2376 (2014) applied 

“retroactively in the first post-conviction context.” 817 F.3d 728, 730 (11th Cir. 2016)(per curium). 2 The PSI states that the Defendant struck the victim with a motor vehicle, causing physical injury. (Doc. 20 at 7). 

The state court indictment notes that the action was done “with intent to cause physical injury.” (Doc. 34-1). 

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However, the use of Jefferson’s conviction for manslaughter as an ACCA predicate 

offense requires examination. Though initially charged with murder, Jefferson was ultimately 

convicted of manslaughter in violation of Ala. Code § 13A-6-3. The murder indictment stated the 

Jefferson “did, with intent to cause the death of C.E.J., cause the death of C.E.J., by shooting him 

with a gun, in violation of §13A-6-2 of the Code of Alabama.” (See Doc. 34, Attachment 2). 

Alabama Code § 13A-6-3, under which Jefferson was convicted of manslaughter, states: 

A person commits the crime of manslaughter if: (1) He recklessly3 causes the 

death of another, or (2) He causes the death of another person under 

circumstances that would constitute murder under Section 13A-6-2; except, that 

he causes the death due to a sudden heat of passion caused by provocation 

recognized by law, and before a reasonable time for the passion to cool and for 

reason to reassert itself.

Ala. Code § 13A-6-3 (footnotes not in original). 

As the Eleventh Circuit recently explained, 

When a statute covers some conduct that falls within, and other conduct that is 

broader than, a predicate offense as defined by the ACCA and when that statute is 

divisible,4 we may use a modified categorical approach to determine whether a 

defendant’s prior conviction qualifies. See Descamps v. United States, ––– U.S. –

–––, 133 S.Ct. 2276, 2281–82, 186 L.Ed.2d 438 (2013). Under the modified 

categorical approach, we look to a limited class of documents, such as the 

indictment and jury instructions, to determine which alternative element was the 

basis of the defendant’s conviction. Id. at 2281. We then consider whether that 

element is encompassed by the ACCA predicate offense. Id.

United States v. White, --- F.3d ----, 2016 WL 5115328, at *2 (11th Cir. Sept. 21, 2016).

 3 Alabama Code § 13A-2-2 (3) defines Recklessly as follows: “A person acts recklessly with respect to a result or to

a circumstance described by a statute defining an offense when he is aware of and consciously disregards a

substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such

nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable

person would observe in the situation. A person who creates a risk but is unaware thereof solely by reason of

voluntary intoxication, as defined in subdivision (e)(2) of Section 13A-3-2, acts recklessly with respect thereto.” 4 “A divisible statute ‘sets out one or more elements of the offense in the alternative.’ Descamps v. United States, ––

– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). See also Mathis v. United States, ––– U.S. ––––, 136 

S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (clarifying that a statute enumerating “various factual means of 

committing a single element” is not divisible).” United States v. White, --- F.3d ----, 2016 WL 5115328, at *2, n.3 

(11th Cir. Sept. 21, 2016). 

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In Shepard v. United States, the Supreme Court held that in determining whether a prior 

conviction qualifies as an ACCA predicate offense, sentencing courts may only consider a 

limited set of documents. 544 U.S. 13, 26 (2005). The documents on which a court may rely 

under Shepard are the charging document, a written plea agreement, the transcript of the plea 

colloquy, any explicit factual finding by the trial judge to which the defendant consented, or 

some comparable judicial record of this information. Id. at 16, 26. In addition to Shepard

documents, the Eleventh Circuit held that sentencing courts may rely on undisputed facts 

contained in a presentence investigation report. United States v. Ramirez–Flores, 743 F.3d 816, 

820 (11th Cir. 2014). 

Here, the PSI states, “Details of this offense reveal that, on December 12, 1994, the 

defendant killed [the victim] by shooting him in the chest with a gun.” (Doc. 20 at 6). The 

government has stated that it has been unable, via Shepard documents, to determine which prong 

of the manslaughter statute was relied upon for Jefferson’s manslaughter conviction.

Specifically, the United States indicates that “efforts to secure Shepard documents related to the 

Murder/Manslaughter prosecution were to no avail” and that it “is not in a position to offer 

support as to which prong of the statute [Jefferson] entered a plea.” (Doc. 38 at 2-3). Thus, the 

Court is unable to discern whether the manslaughter was committed “recklessly” or “under 

circumstances that would constitute murder...except, that he causes the death due to a sudden 

heat of passion caused by provocation recognized by law, and before a reasonable time for the 

passion to cool and for reason to reassert itself.” Ala. Code § 13A-6-3. If it was based on the 

latter, the offense would be a qualifying offense. As for whether reckless conduct qualifies, the 

Court considers recent developments in the law.

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In Leocal v. Ashcroft, the Supreme Court concluded that a conviction for driving under 

the influence and causing serious bodily injury, was not a crime of violence under a materiallyidentical elements/force clause in 18 U.S.C. § 16(a). 543 U.S. 1 (2004). Specifically, the Court 

held, “The key phrase in § 16(a)—the ‘use ... of physical force against the person or property of 

another’—most naturally suggests a higher degree of intent than negligent or merely accidental 

conduct.” Id. at 9. Since Leocal, the Eleventh Circuit has held “that a conviction predicated on a 

mens rea of recklessness does not satisfy the ‘use of physical force’ requirement under [United 

States Sentencing Guidelines] § 2L1.2’s definition of ‘crime of violence.’” United States v. 

Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010).5

The Supreme Court recently decided Voisine v. United States, holding that “misdemeanor 

assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the 

statutory firearms ban” in 18 U.S.C. § 922(g)(9). 136 S. Ct. 2272, 2276 (2016). However, in 

footnote 4, the Court explained:

Like Leocal, our decision today concerning § 921(a)(33)(A)’s scope does not 

resolve whether § 16 includes reckless behavior. Courts have sometimes given 

those two statutory definitions divergent readings in light of differences in their 

contexts and purposes, and we do not foreclose that possibility with respect to 

their required mental states. Cf. United States v. Castleman, 572 U.S. ––––, ––––, 

n. 4, 134 S.Ct. 1405, 1411, n. 6, 188 L.Ed.2d 426 (2014) (interpreting “force” in § 

921(a)(33)(A) to encompass any offensive touching, while acknowledging that 

federal appeals courts have usually read the same term in § 16 to reach only 

“violent force”). All we say here is that Leocal’s exclusion of accidental conduct 

from a definition hinging on the “use” of force is in no way inconsistent with our 

inclusion of reckless conduct in a similarly worded provision.

Voisine v. United States, 136 S. Ct. 2272, 2280, n. 4 (2016).6

 5 “In this Circuit, there is no material difference between the ACCA’s use of the phrase ‘violent felony’ and the 

guidelines’ use of the phrase ‘crime of violence.’ See United States v. Harrison, 558 F.3d 1280, 1291-92 (11th 

Cir.2009); United States v. Archer, 531 F.3d 1347, 1350 n. 1 (11th Cir.2008). The phrases are 

coterminous. Harrison, 558 F.3d at 1291 (noting that the phrases are ‘identical ... in all material respects’).” United 

States v. Young, 336 Fed. App’x. 954, 957, n. 2 (11th Cir. 2009). 6 See Johnson v. United States, 559 U.S. 133, 140 (2010)(Noting that the definitions of violent felony contained in 

18 U.S.C. §§ 16 and 924(e)(2)(B)(i) are “very similar.”).

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Thus, because Voisine did not overrule Palomino Garcia, it is the law that binds this 

Court. Pursuant to Palomino Garcia, a conviction premised upon reckless conduct would not 

qualify as an ACCA predicate. 606 F.3d 1317, 1336 (11th Cir. 2010). Because Jefferson’s 

manslaughter conviction could have been based on reckless conduct, it was error to rely on this 

conviction to enhance Jefferson’s sentence under the ACCA. 

Accordingly, in light of current precedent, re-sentencing is appropriate. This matter is set 

for re-sentencing January 20, 2017 at 11:00 a.m., Courtroom 5A, U.S. District Court for the 

Southern District of Alabama, 113 St. Joseph Street, Mobile, Alabama, 36602. The Clerk is 

DIRECTED to issue a writ to have the Jefferson present for sentencing. The United States 

Probation Office is DIRECTED to prepare an amended Presentence Investigation Report 

without the ACCA calculation no later than December 16, 2016. The parties shall each file a 

Position with Respect to Sentencing Factors on or before January 6, 2017. 

DONE and ORDERED this 13th day of October 2016.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE

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