United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge.
matter is now before the Court on Petitioner
Hernandez-Vega's § 2255 Motion to Vacate, Set Aside,
or Correct Sentence. For the reasons set forth below,
Petitioner's Motion  is Denied.
was sentenced on a charge of illegal re-entry and received a
guidelines enhancement for having a prior conviction for
robbery. He now brings this § 2255 action seeking to
vacate, set aside, or correct his sentence pursuant to
Johnson v. United States, 135 S.Ct. 2251 (2015),
arguing that the prior conviction for robbery no longer
qualifies as a “crime of violence” under the
Guidelines. This Order follows.
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.
claims in his § 2255 Motion that his sentence is invalid
because the Court found that he was eligible for an enhanced
sentence based on a finding that he had committed a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) of the
United States Sentencing Guidelines. That Section of the
Guidelines provides for a 12 or 16 level increase if the
defendant was previously deported after committing a crime of
violence. “Crime of violence” is defined as
“any of the following offenses under federal, state, or
local law: . . . robbery . . . or any other offense under
federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against
the person of another.” U.S.S.G. § 2L1.2
Application Note 1(B)(iii).
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
has been extended to the residual clause in 18 U.S.C. §
16(b), which is similar to the definition applied in §
2L1.2. 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 cases on collateral review.
Motion seeks to invoke Johnson, claiming that his
sentence was enhanced based on a conviction using the
residual clause under the guidelines. However,
Johnson invalidated only the residual clause of the
Armed Career Criminal Act, while Petitioner qualified for a
sentence enhancement under the enhancement provision in
§ 2L1.2 of the Sentencing Guidelines, not the ACCA. In
United States v. Hurlburt, ___ F.3d ___, 2016 WL
4506717 (7thCir. Aug. 29, 2016), Johnson
was recently extended to direct appeals challenging
enhancements under the sentencing guidelines, such as the
career offender provision. That being said, the holding has
not been extended to apply retroactively to these cases on
collateral review. Id.; see also, Garecht v.
United States, 2016 WL 3581994 (C.D.Ill. June 28, 2016).
This question is currently pending before the United States
Supreme Court in United States v. Beckles, 616
Fed.Appx. 415 (11th Cir. 2016), cert. granted, No
15-8544 (U.S. June 27, 2016). Until Johnson is
extended to guidelines challenges on collateral review,
Petitioner's Motion is technically premature.
even assuming that Johnson could be applied under
the circumstances of this case, the record indicates that
Petitioner would not be entitled to relief as the conviction
qualifying him for the enhancement did not invoke the
residual clause. Rather, the prior conviction was for robbery
under Illinois law, and the Government argues that the
robbery conviction qualified as a crime of violence under the
elements clause of U.S.S.G. § 2L1.2 or 18 U.S.C. §
16(a), as it “has as an element the use, attempted use,
or threatened use of physical force against the person of
another.” Convictions qualifying under the elements
clause were unaffected by the holding in Johnson.
prior convictions to determine whether they qualify as
violent felonies implements a categorical approach that looks
at the elements of the statute itself, not the particular
facts underlying the conviction. Taylor v. United
States, 495 U.S. 575, 600 (1990); United States v.
Rogers, 804 F.3d 1233, 1236 (7th Cir. 2015).
As Petitioner's prior robbery conviction came out of
Illinois, the Court must turn to Illinois law to evaluate the
elements of the offense. Petitioner was charged with and
convicted of robbery under 720 ILCS 5/18-1. This section
provides: “A person commits robbery when he or she
takes property, except a motor vehicle covered by Section
18-3 or 18-4, from the person or presence of another by the
use of force or by threatening the imminent use of
force.” Accordingly, the elements of robbery clearly
included the use, attempted use, or threatened use of
physical force against the person of another and would
continue to qualify as a “violent felony” or
“crime of violence” under the elements clause
even in the wake of Johnson. See also,
United States v. Carter, 910 F.2d 1524, 1532
(7thCir. 1990) (holding that in Illinois, robbery
is a crime of violence under the USSG “because it is
defined as the taking of property ‘by the use of force
or by threatening the imminent use of force'”);
United States v. Dickerson, 901 F.2d 579, 583-85
(7th Cir. 1990); Gregory v. United
States, 2016 WL 3916981 at *2 (S.D.Ill. July 20, 2016).
Court would also note that robbery continues to be one of the
crimes specifically enumerated in § 2L1.2 Application
Note 1(B)(iii), which defines a crime of violence for
purposes of § 2L1.2(b)(1). As “enumerated
clauses” listing specific offenses deemed to be crimes
of violence were also undisturbed by Johnson, his
claim would fail for this reason, as ...