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United States v. Jones

United States District Court, N.D. Illinois, Eastern Division

November 29, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY JONES, Defendant. Criminal No. 07 CR 415

          MEMORANDUM OPINION AND ORDER

          Milton I. Shadur Senior United States District Judge

         Terry Jones ("Jones") is among the myriad federal prisoners across the country who are seeking to invalidate their sentences as Armed Career Criminals[1] by filing motions under 28 U.S.C. 2255[2] that seek to call to their aid the retroactively applied decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Although Jones' conviction and sentencing took place many years ago, his Section 2255 effort is within the one-year limitations period prescribed by Section 2255(f)(3) because that period runs from:

the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.

         Jones is fortunate to have the able assistance of William Theis, a highly qualified and experienced member of the panel of this District Court's excellent Federal Defender Program, [3]and his Federal Defender Program colleague W. Todd Watson to advance Jones' position.

         To take Jones out of the Armed Career Criminal category so that he is no longer subject to the mandatory minimum 15-year sentence prescribed by the Act, his counsel has the task of taking one of the three required predicate offenses for that purpose -- in this instance, his Illinois conviction on an armed robbery charge -- out of the running for federal purposes. In that respect Section 924(e)(2)(B) defines what constitutes a "violent felony" that can qualify for purposes of Section 924(e)(1)'s sentencing enhancement provision. That definition reads in relevant part:

         As used in this subsection --

         * * *

         (B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year . . . that --

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another .....

         And on that score the Illinois robbery statute (720 ILCS 5/18-1(a)) reads:

A person commits robbery when he or she takes property . . . from the person or presence of another by the use of force or by threatening the imminent use of force.

         Just a bit over a quarter century ago our Court of Appeals dealt with the then-existing identical definition of robbery under Illinois law (then codified at Ill. Rev. Stat. ch. 38, § 18-1(a)) in United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990), holding that Illinois robbery is indeed a crime of violence for purposes of Section 924(e)(2)(B). So Jones' counsel have forthrightly acknowledged in their November 21 Reply on his behalf that they must establish that Johnson has overturned that result.

         But in that regard counsel face the analytical problem that the Supreme Court's Johnson holding focused on the "residual clause" of the Act's Section 924(e)(2)(B)(ii) as unconstitutionally vague. But in doing so Johnson, 135 S.Ct. at 2563 concluded by stating expressly (emphasis added):

         Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of ...


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