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Khoury v. United States

United States District Court, S.D. Illinois

January 26, 2017

MICHAEL J. KHOURY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 15-cr-30013-DRH

          MEMORANDUM & ORDER

          David R. Herndon, Judge

         I. Introduction

         This matter is before the Court on petitioner Michael J. Khoury's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). Specifically, Khoury argues that in light of recent case law (a) he no longer has the requisite predicate offenses to make him an armed career criminal pursuant to 18 U.S.C. § 924(e) and (b) his base offense level under §2K2.1 was improperly calculated.

         On January 11, 2017, the United States filed a response to Khoury's § 2255 petition (Doc. 15) in which they concede that his motion should be granted in part following the United States v. Edwards, 836 F.3d 831 (7th Cir. 2016) decision. The government indicates that in light of the Edwards decision, Khoury's guideline range is impacted. However, the government argues that Khoury remains an armed career criminal based upon his numerous convictions for residential burglary. The government requests that this Court set aside Khoury's sentence and allow for resentencing pursuant to 28 U.S.C. § 2255(b) based upon the Edwards issue, but find that Petitioner is still an armed career criminal post-Mathis. For the reasons discussed herein, Khoury's to motion to vacate, set aside, or correct sentence (Doc. 1) is GRANTED in part and DENIED in part.

         II. Background

         On January 22, 2015, Khoury was charged with the unlawful possession of a firearm by a felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), stemming from a burglary that occurred in St. Clair County, Illinois on January 20, 2015. United States v. Khoury, 15-cr-30013-DRH, (Doc. 1).[1] On May 12, 2015, Khoury pled guilty to the indictment pursuant to a written plea agreement (Cr. Doc. 19). In the plea agreement, the United States agreed to recommend a sentence at the low end of the guidelines range, which the parties had calculated as being 188-235 months' imprisonment (Cr. Doc. 20).

         Ultimately, in light of previous burglary convictions, the Court concluded that Khoury was an armed career criminal pursuant to 18 U.S.C. §924(e). His guideline range was calculated as being 188-235 months, consistent with the plea agreement. Neither party objected to the guideline calculation. On December 18, 2015, the Court found that the PSR properly calculated the guidelines range, and Khoury was sentenced to 188 months' imprisonment, 5 years of supervised release, a $300 fine, and a $100 special assessment (Cr. Doc. 34). He did not file a direct appeal.

         On September 26, 2016, Khoury filed the pending motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). In his § 2255, Khoury argues that (1) in light of Mathis v. United States, 136 S.Ct. 2243, 2253 (2016), he no longer has the requisite predicate offenses to qualify as an armed career criminal and (2) in light of United States v. Edwards, 836 F.3d 831 (7th Cir. 2016), his base level offense was miscalculated.

         III. Analysis

         a. Armed Career Criminal

          The Armed Career Criminal Act applies when a defendant has three convictions that constitute a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). In this case, Khoury argues that in light of the Mathis case, he no longer qualifies as an armed career criminal.

         Mathis addressed the enumerated offenses clause of the ACCA. The Supreme Court held that the Iowa burglary statute is not divisible, because it creates alternative means and not alternative elements; thus, the district court erred in using the modified categorical approach to determine whether Mathis' burglary convictions were convictions for generic burglary. Mathis v. United States, 136 S.Ct. 2243, 2253 (2016). The Court noted that “the modified approach serves - and serves solely - as a tool to identify the elements of the crime of conviction when a statute's disjunctive phrasing renders one (or more) of them opaque, ” and it “is not to be repurposed as a technique for discovering whether a defendant's prior conviction, even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense.” Mathis, 136 S.Ct. at 2253-54.

         In this case, Khoury's status as an armed career criminal was based on multiple convictions for residential burglary, burglary, and 2nd degree burglary spanning from 1993 until 2003 (Cr. Doc 29). The government concedes that Khoury's convictions under Missouri law for Burglary - 2nd Degree[2] no longer qualify as “violent felonies” for purposes of the ACCA. See United States v. Smith, No. 15-3033, 2016 WL 4626561 (7th Cir. Sept. 6, 2016). Moreover, the government also concedes that Khoury's convictions for Burglary[3] under Illinois law no longer qualify as “violent felonies” for purposes of the ACCA. See United States v. Haney, 840 F.3d 472, 475 (7th Cir. 2016).

         That being said, Khoury's numerous convictions for residential burglary under Illinois law undoubtedly qualify as “violent felonies” for purposes of the ACCA, even post-Mathis.[4] Khoury still has at least three residential burglary convictions under Illinois law[5]; thus, he ...


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