United States District Court, C.D. Illinois, Peoria Division
PIERRE M. SMITH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER
BILLY McDADE United States Senior District Judge.
the Court is a Motion to Vacate or Correct an Illegal
Sentence (Doc. 1) brought by Petitioner, Pierre M. Smith. For
the reasons stated below, the motion is DENIED.
October 13, 2015, Petitioner entered into a Plea Agreement
with the Government in which he agreed to plead guilty to
Counts One and Three of the Indictment. (Doc. 28 at 2,
United States v. Smith, No. 15-cr-1000 (C.D. Ill.)).
Count One alleged that Petitioner violated 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) by possessing
controlled substances with intent to distribute and Count
Three alleged violation of 18 U.S.C. § 924(c) for being
a felon in possession of a firearm in furtherance of a drug
trafficking crime. (Doc. 1, United States v. Smith,
No. 15-cr-1000 (C.D. Ill.)). On that same day, Petitioner
pled guilty to Counts One and Three of the indictment as
discussed in his plea agreement. (October 13, 2015 Minute
Entry, United States v. Smith, No. 15-cr-1000 (C.D.
Ill.)). His judgment of conviction was entered on February
24, 2016. (Doc. 37, United States v. Smith, No.
15-cr-1000 (C.D. Ill.)). Despite waiving his right to
collateral attack (Doc. 28 at 6-7, United States v.
Smith, No. 15-cr-1000 (C.D. Ill.)), Petitioner now
collaterally attacks his conviction for Count Three of the
Indictment because he believes the holding of Johnson v.
United States, 135 S.Ct. 2551 (U.S. 2015) renders his
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires district courts to
conduct preliminary reviews of § 2255 motions. The rule
states in relevant part: “If it plainly appears from
the motion, any attached exhibits, and the record of the
prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion and direct the
clerk to notify the moving party. If the motion is not
dismissed, the judge must order the United States Attorney to
file an answer, motion, or other response within a fixed
time, or to take other action the judge may order.”
Section 2255 of Chapter 28 of the United States Code provides
that a sentence may be vacated, set aside, or corrected
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” “Relief under § 2255 is an
extraordinary remedy because it asks the district court
essentially to reopen the criminal process to a person who
already has had an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007). Thus, § 2255 relief is limited to correcting
errors of constitutional or jurisdictional magnitude or
errors constituting a fundamental defect that results in a
complete miscarriage of justice. E.g., Kelly v.
United States, 29 F.3d 1107, 1112 (7th Cir. 1994),
overruled on other grounds by United States v.
Ceballos, 26 F.3d 717 (7th Cir. 1994). “A §
2255 motion is not a substitute for a direct appeal.”
Coleman v. United States, 318 F.3d 754, 760 (7th
Cir. 2003) (citing Doe v. United States, 51 F.3d
693, 698 (7th Cir. 1995)).
Merits of the Motion
year, the Supreme Court held in Johnson v. United
States, 135 S.Ct. 2551, that the residual clause of
§ 924(e)(2)(B)(ii) was unconstitutionally void for
vagueness. Petitioner was convicted of violating §
924(c), which contains a phrase very similar to §
924(e)'s residual clause. That clause in §
924(c)-“involves a substantial risk that physical force
against the person or property of another”- appears in
the explanation of what is a “crime of violence.”
18 U.S.C. § 924(c)(3)(B).
section 924(c) is not only violated when a felon possesses a
handgun in furtherance of a “crime of violence.”
It is also violated when a felon possesses a handgun in
furtherance of a “drug trafficking crime.” The
relevant statutory provision is as follows:
any person who, during and in relation to any crime of
violence or drug trafficking crime..., uses or carries a
firearm, or who, in furtherance of any such crime, possesses
a firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime... shall be
18 U.S.C.A. § 924(c)(1)(A) (emphasis added).
“drug trafficking crime” is defined as “any
felony punishable under the Controlled Substances Act (21
U.S.C. § 801 et. seq.), the Controlled
Substances Import and Export Act (21 U.S.C. § 951
et. seq.), or chapter 705 of title 46.” 18
U.S.C. § 924(c)(2). The term “crime of
violence” is defined as an offense that “is a
felony and (A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or (B) that by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.” 18 U.S.C. § 924(c)(3). This all
means that even if Johnson applied to section
924(c)(3)(B)'s definition of “crime of
violence”, which several courts have explicitly held it
does not, see Eldridge v. United States, No.
16-CV-3173, 2016 WL 4062858, at *3 (C.D. Ill. July 29, 2016)
(collecting cases), such application would have no effect on
Petitioner's conviction, because he was not convicted for
possessing a firearm in furtherance of a “crime of
beyond doubt that Petitioner was convicted of possessing a
firearm in furtherance of a “drug trafficking
crime” not a “crime of violence.” In
Petitioner's plea agreement, there is a section entitled
“Factual Basis, ” in which the defendant
stipulated and admitted to certain allegations set forth in
his indictment and other facts surrounding his offenses for
which he was convicted. The Court asked Petitioner at his
change of plea hearing whether the factual basis for the plea
contained in the plea agreement was accurate and Petitioner
confirmed that it was accurate. By pleading guilty through a
written plea agreement, a defendant admits certain ...