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United States v. Jordan

United States District Court, C.D. Illinois, Urbana Division

November 9, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY JORDAN, Defendant.

          ORDER

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Anthony Jordan's Motion for Bond (Case No. 15-CV-02294, d/e 9), in which he requests bond pending a determination of the motion he filed pursuant to 28 U.S.C. § 2255. Defendant's motion is GRANTED. Defendant has shown that he has raised, in his pending habeas case, a substantial constitutional claim upon which he has a high probability of success and that exceptional circumstances exist which require bail to make the habeas remedy effective. Although Defendant entered into a plea agreement that included a waiver of his right to collaterally attack his sentence, the Court finds that the waiver does not preclude Defendant's challenge to his status as a career offender, which is grounded in the rights bestowed upon him by the Due Process Clause.

         I. BACKGROUND

         In February 2004, Defendant was charged by indictment with one count of distributing more than five grams of a substance containing crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B). Indictment (d/e 1). On May 12, 2004, Defendant and the Government entered into a plea agreement, in which Defendant agreed to plead guilty to the charged offense. Plea Agreement and Stipulation of Facts (Plea Agreement) (d/e 7), ¶ 4. Pursuant to the plea agreement, Defendant also waived his “right to collaterally attack the conviction and/or sentence.” Plea Agreement, ¶ 9. In the Presentence Investigation Report prepared in anticipation of Defendant's sentencing, Defendant's total offense level was increased from 28, the base offense level that applied because Defendant was deemed responsible for 20.5 grams of cocaine base, to 34 on the basis that Defendant was a career offender. Presentence Investigation Report (PSR), ¶ 20. Although only two qualifying felony offenses are needed to label a defendant a career offender under § 4B1.1 of the United States Sentencing Guidelines, the PSR listed three felony convictions supporting Defendant's classification as a career offender- one for aggravated battery, one for mob action, and one for domestic battery. See PSR, ¶ 20.

         Based on his total offense level of 34 and his criminal history category of VI, which would not have changed absent his career offender designation, Defendant's imprisonment guideline range at sentencing was 262 to 327 months. Had Defendant's total offense level been 28, his imprisonment guideline range would have been 140 to 175 months. On July 13, 2006, Defendant was sentenced to 262 months of imprisonment. See Judgment (d/e 68). Although Defendant appealed, he later filed a motion to dismiss the appeal, which the Seventh Circuit granted. See Order (d/e 80).

         Defendant timely filed his first § 2255 petition in February 2008. See Jordan v. United States, Central District of Illinois, Urbana Division, Case No. 08-CV-02048 (hereinafter, Case No. 08-02048), Motion Under 28 U.S.C. § to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1). The motion was denied on April 10, 2008. See Case No. 08-02048, Opinion (d/e 6). Defendant subsequently filed two motions pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking to vacate the denial of his initial § 2255 motion. See Case No. 08-02048, Motion for Relief from Judgment Under Federal Rules of Civil Procedure Rule 60(b)(6) (d/e 20); Case No. 08-02048, Motion for Relief from Judgment Under the Federal Rules of Civil Procedure Rule 60(b)(4) (d/e 49). Both motions were denied. See Case No. 08-02048, Opinion (d/e 26); Case No. 08-02048, Order (d/e 58).

         In 2015, the Supreme Court decided Johnson v. United States, in which it held that a residual clause of the Armed Career Criminal Act (ACCA), which classified an offense as a “crime of violence” if it involved “conduct that presents a serious potential risk of physical injury to another, ” was unconstitutionally vague. 135 S.Ct. at 2554, 2562-63. In light of Johnson, the Seventh Circuit granted Defendant's application for authorization to file a successive § 2255 motion. See Jordan v. United States, Central District of Illinois, Urbana Division, Case No. 15-CV-02294, Order (d/e 2).

         II. ANALYSIS

         “[F]ederal district judges in habeas corpus and section 2255 proceedings have inherent power to admit applicants to bail pending the decision of their case . . . .” Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985). The Seventh Circuit has not yet formulated a standard as to when a judge may grant a motion for bond in the context of a § 2255 proceeding other than to state that the power to grant bond in such circumstances should “be exercised very sparingly.” Id. A case from the Urbana Division of this District has held, however, that bail should be granted pending post-conviction habeas corpus review only “when the petitioner has raised substantial constitutional claims upon which he has a high probability of success” and “extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Douglas v. United States, No. 06-CV-2113, 2006 WL 3627071, at *1 (C.D. Ill.Dec. 11, 2006) (citing Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992)). Defendant has met both prongs of this test with respect to his pending § 2255 motion.

         A. Defendant has raised a constitutional claim upon which he has a high probability of success.

         Before Johnson, but after Defendant's sentencing, the Seventh Circuit held that battery, as defined by Illinois law, was not a “crime of violence, ” as that term was defined by the United States Sentencing Guidelines, because the offense could be committed by making “physical contact of an insulting or provoking nature with an individual.” United States v. Evans, 576 F.3d 766, 767-68 (7th Cir. 2009) (citing 720 ILCS 5/12-3(a)). Because a person commits domestic battery in Illinois if he knowingly and without justification “makes physical contact of an insulting or provoking nature with any family or household member, ” 720 ILCS 5-12-3.2(a), domestic battery does not qualify as a “crime of violence.” Further, the Seventh Circuit has held that the Illinois offense of mob action could only be classified as a “crime of violence” under the residual clause of the career offender guideline. See United States v. Cole, 298 F.3d 659, 661 (7th Cir. 2002) (noting that the Illinois mob action statute “does not have as a necessary element the use or threatened use of physical force against a person” and that mob action is not specifically enumerated as a crime of violence in the career offender guideline). The Illinois mob action statute encompasses several crimes with varying elements. See 720 ILCS 5/25-1. The statute is therefore divisible, meaning that the Court can use a modified categorical approach, which allows the Court to look at certain documents, such as the indictment, jury instructions, and plea agreement, to determine which specific offense Petitioner committed. See Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). But because all offenses encompassed within the Illinois mob action statute can be committed without the use or attempted use of violent physical force against another person, Illinois mob action still fails to classify as a “crime of violence” under the modified categorical approach. Accordingly, if the Supreme Court promulgates a new rule in Beckles that the “crime of violence” definition in the United States Sentencing Guidelines is unconstitutionally vague and determines that this rule applies retroactively, Defendant will not have the two felony convictions needed to be classified as a career offender. The Government does not dispute this conclusion in its opposition to Defendant's Motion for Bond.

         A large majority of federal appellate circuits have held or assumed that Johnson, a holding that has since been made retroactive, see Welch v. United States, 136 S.Ct. 1257, 1268 (2016), extends to the United States Sentencing Guidelines. See United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (discussing cases). Further, the Supreme Court is scheduled to hear a case this month involving whether Johnson should be extended to the guidelines from the lone circuit that has held that Johnson does not apply to the Sentencing Guidelines. See Beckles v. United States, 616 F. App'x 415, 416 (11th Cir. 2015), cert. granted, 136 S.Ct. 2510 (2016). Given the overwhelming consensus that the rule promulgated in Johnson extends to the guidelines, the chance that Defendant will prevail on his pending § 2255 motion is high.

         The Government argues that Defendant's chance of success is nothing more than a “coin flip” because no court of appeals has held that the extension of Johnson to the United States Sentencing Guidelines is to be applied retroactively. However, the fact that the Supreme Court made Johnson retroactive, see Welch v. United States, 136 S.Ct. at 1268, leads this Court to the conclusion that a holding in Beckles that the guidelines are subject to vagueness challenges, which will result in the residual clause of the career offender guideline being deemed unconstitutionally vague, will also be made retroactive, especially given that successive § 2255 motions, if not based on newly discovered evidence, must be based on “a new rule of constitutional law, made retroactive to cases oncollateral review by the Supreme Court, that was ...


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