United States District Court, S.D. Illinois
MICHAEL J. KHOURY, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 15-cr-30013-DRH
MEMORANDUM & ORDER
R. Herndon, Judge
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
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.
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.
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).
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.
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.
Armed Career Criminal
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
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.
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 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 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).
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. Khoury still has at least three
residential burglary convictions under Illinois
thus, he ...