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King v. United States

United States District Court, C.D. Illinois

August 22, 2016

WILLIAM D. KING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 07-20055

          ORDER AND OPINION

          JAMES E. SHADID Chief United States District Judge.

         This matter is now before the Court on Petitioner King’s’s § 2255 Motion to Vacate, Set Aside, or Correct Sentence. For the reasons set forth below, Petitioner’s Motion [1] is Denied.

         Background

         Petitioner King filed this § 2255 action seeking to vacate, set aside, or correct his sentence pursuant to Johnson v. United States, 135 S.Ct. 2251 (2015). King pled guilty to three counts of distributing heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) on June 19, 2007. Shortly thereafter, he pled guilty to violating the terms of his supervised release from a prior federal case. Because King had prior convictions for a controlled substance offense and robbery, [1] he qualified for the Career Offender enhancement under U.S.S.G. § 4B1.1. On September 18, 2007, he was sentenced to three concurrent terms of 216 months’ imprisonment on the new convictions and a consecutive term of 24 months’ imprisonment on the supervised release revocation.

         Standard of Review

         A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that “vitiate the sentencing court’s jurisdiction or are otherwise of constitutional magnitude.” Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993). A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698.

         Analysis

         King claims in his § 2255 Motion that his sentence is invalid because the Court found that he was eligible for an enhanced sentence as a career offender under Section 4B1.1 of the United States Sentencing Guidelines. That Section of the Guidelines provides that 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. B1.1(a). Section 4B1.2(a) defines the term “crime of violence”:

(a) The term “crime of violence” means any offense under federal or state law, 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, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. 4B1.2 (emphasis added)

         On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act violates due process because the clause is too vague to provide adequate notice. Johnson v. United States, 135 S.Ct. 2551 (2015). The residual clause of the ACCA struck down by the Supreme Court is identical to the residual clause in Section 4B1.2(a) of the Sentencing Guidelines, italicized above. In Price v. United States, the Seventh Circuit held that Johnson announced a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions. 795 F.3d 731, 732 (7th Cir. 2015). That decision also made clear that Johnson is retroactive not only to cases on direct appeal, but also to case on collateral review. Id.

         King’s Motion seeks to invoke Johnson, claiming that his prior offenses fell within the residual clause of the guidelines. However, Johnson invalidated only the residual clause of the Armed Career Criminal Act, while King qualified for a sentence enhancement under the career offender provision in the Sentencing Guidelines, not the ACCA. In the Seventh Circuit, Johnson has not been extended to enhancements under the sentencing guidelines, such as the career offender provision. While the premise may someday be extended to the substantively similar language of the career offender provision in the guidelines, it has not at this time. The issue is currently pending before the Seventh Circuit in United States v. Rollins, No. 13-1731; United States v. Hurlburt, Case No. 1403611; United States v. Gillespie, Case No. 15-1686. However, the Seventh Circuit's prior decision in United States v. Tichenor,683 F.3d 358, 364 (7th Cir. 2012), held that the guidelines are not subject to vagueness attacks, which is precisely what an application of Johnson under these circumstances would entail. Moreover, even ...


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