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Loving v. United States

United States District Court, S.D. Illinois

December 12, 2016

EDWARD C. LOVING, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, DISTRICT JUDGE:

         This matter is before the Court on petitioner Edward C. Loving's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1) and Assistant Federal Public Defender David L. Brengle's motion to Withdraw (Doc. 6). Petitioner was allowed until December 5, 2016 to respond. To date, the petitioner has not responded.

         Based on the record and the following, the Court GRANTS the motion to withdraw and DENIES petitioner's § 2255 motion.

         I. BACKGROUND

         The defendant pleaded guilty to one count of Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (USA v. Loving, 3:07-cr-30073 Doc. 31).[1] On February 8, 2008, the Court sentenced defendant to a term of 188 months' imprisonment to run concurrent with the terms of imprisonment previously imposed by the United States District Court for the Southern District of Illinois in Docket No. 98-30119-GPM, and by Winnebago County Circuit Court in Docket No. 98-CF-294. (Cr. Doc. 39).

         When the defendant was sentenced, he was determined to be a career offender. The defendant's career offender status was based on the defendant having three prior felony convictions, one for robbery and two for the manufacture or delivery of a controlled substance (Cr. Doc. 36). According to his presentence report, petitioner had the following three predicate offense convictions under §4B1.2:

1. On October 9, 1992, Petitioner was convicted of Robbery in St. Clair County case 92-CF-1045 (Cr. Doc. 36, ¶ 40).
2. On April 8, 1997, Petitioner was convicted of Unlawful Possession of Cannabis with Intent to Deliver in Madison County case, 97-CF-736 (Cr. Doc. 36, ¶ 47).
3. On February 1, 1998, Petitioner was convicted of Manufacture or Delivery of Cocaine in Winnebago County case 98-CF-294 (Cr. Doc. 36, ¶ 48).

         On June 27, 2016, petitioner, proceeding pro se, filed the above petition to vacate, set aside or correct sentence under 28 U.S.C. § 2255 (Doc. 1). Petitioner's claims are based upon the U.S. Supreme Court's decision in Johnson v. U.S., 135 S.Ct. 2551 (2015). Pursuant to this Court's Administrative Order 176, Assistant Federal Public Defender David L. Brengle entered his appearance on behalf of petitioner (Doc. 4). Thereafter, AFPD Brengle filed a motion to withdraw as attorney (Doc. 6). AFPD Brengle states petitioner does not have a valid Johnson claim because his predicate offenses are not violent offenses that implicate the ACCA's residual clause or the career offender guideline's residual clause.

         II. DISCUSSION

         a. Johnson v. United States

          In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court addressed the constitutionality of a certain portion of the Armed Career Criminal Act (“the ACCA”). Under the ACCA, “a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a ‘violent felony.' ” Id. at 2555. The statute defines a violent felony as follows: “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 [commonly called the “force” clause]; or (ii) is burglary, arson, or extortion, involves use of explosives [commonly called the “enumerated offenses”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [commonly called the “residual” clause].” 18 U.S.C. § 924(e)(2)(B) (emphasis added). As noted, the portion of § 924(e)(2)(B)(ii) italicized by the Court is known as the residual clause. In Johnson, the Supreme Court held that imposition of an enhanced sentence under the residual clause of the ACCA violates due process because the vagueness of the clause “denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557. The Supreme Court in Johnson did not strike any other provision of the ACCA. Johnson, 135 S.Ct. at 2563.

         Although Johnson involved the residual clause of the ACCA, it also has implications for defendants who received a sentencing adjustment based on a cross reference in U.S.S.G. § 2K2.1 to the residual clause in the career-offender guideline, U.S.S.G. § 4B1.2(a). This is because the career-offender guideline contains an identically worded residual clause, U.S.S.G. § 4B1.2(a)(2). The Seventh Circuit found that under Johnson, the residual clause in the ...


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