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United States v. Jenkins

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

March 13, 2017

United States of America
v.
Anthony Jenkins.

          OPINION AND ORDER

          SARA L. ELLIS United States District Judge

         A jury convicted Anthony Jenkins of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and he received a sentence of slightly more than fifteen years in prison under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Years later, in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the United States Supreme Court declared § 924(e)(2)(B)'s “residual clause” unconstitutional and that certain sentences under § 924(e) were unconstitutional as well. Thereafter, Jenkins filed a petition pursuant to 28 U.S.C. § 2255 and moved to vacate and correct his sentence based on Johnson. Because Jenkins was convicted of three separate felonies that had as their elements the use, attempted use, or threatened use of physical force before Jenkins broke the law by possessing a firearm, the Court denies the motion.

         BACKGROUND

         On June 20, 2007, a jury convicted Anthony Jenkins of unlawful possession of a firearm after a previous conviction for a crime punishable by more than 1 year in prison, 18 U.S.C. § 922(g)(1). See United States v. Jenkins, Case No. 06 CR 780-1, Docs. 53, 55.[1] The probation department determined that Jenkins qualified as an armed career criminal under the ACCA because of his prior state felony convictions, specifically a 1986 aggravated battery conviction, a 1988 burglary conviction, a 1992 aggravated battery conviction, and a 1998 narcotics distribution conviction. Jenkins objected to the Presentence Investigation Report's reliance on the four convictions as predicate offenses for § 924(e) because the jury had not found that he committed the crimes, but he did not otherwise object to his classification as an armed career criminal. Id., Doc. 61 at 3. The minimum sentence under § 924(e) is fifteen years, or 180 months. See 18 U.S.C. § 924(e)(1) (“In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years[.]”). On December 20, 2007, Judge James B. Moran, the presiding district court judge for Jenkins' trial (hereinafter, the “Sentencing Court”), sentenced Jenkins to serve 188 months imprisonment. See Jenkins, Case No. 06 CR 780-1, Doc. 73 at 1-2. Jenkins filed a motion pursuant to 28 U.S.C. § 2255 on June 21, 2016, after which his criminal case and his § 2255 petition were reassigned to this Court.

         LEGAL STANDARD

         28 U.S.C. § 2255(a) provides that “[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). If the Court finds that the convicted defendant is entitled to relief then “the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2211(b). However, if the Court finds that “the files and records of the case conclusively show that the prisoner is entitled to no relief, ” then the Court is permitted to dismiss the motion. Id.; see also Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010); Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004); Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         ANALYSIS

         Jenkins argues that he does not qualify for a sentence under the ACCA and that his sentence is unconstitutional. Section 924(e) provides that the minimum sentence for felons convicted of possessing handguns is fifteen years imprisonment when the defendant has been previously convicted three times for separate violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). Section 924(e) defines a violent felony as one that 1) “has as an element the use, attempted use, or threatened use of physical force” (a felony under the “elements clause”); 2) is “burglary, arson, or extortion” (a felony under the “enumerated offenses clause”); or 3) that “otherwise involves conduct that presents a serious potential risk of physical injury to another” (a felony under the “residual clause”). Id. § 924(e)(2)(B)(i). The Supreme Court ruled that § 924(e)'s residual clause is unconstitutionally vague, meaning that a conviction must qualify as a violent felony under the elements clause or the enumerated offenses clause to support a sentence under § 924(e). Johnson, 135 S.Ct. at 2557; Stanley v. United States, 827 F.3d 562, 564 (7th Cir. 2016). Johnson retroactively applies to convictions and sentences entered prior to Johnson, allowing collateral review of those cases, as here. Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). Because 28 U.S.C. § 2255(f)(3) provides Jenkins the opportunity to challenge his sentence within a year after the Supreme Court recognized Johnson's retroactivity for collateral review, Stanley, 827 F.3d at 564, Jenkins' petition is timely.

         Jenkins understands, and the Government agrees, that, when sentencing Jenkins under § 924(e), the Sentencing Court used his November 12, 1986 aggravated battery conviction, which resulted in a two-year imprisonment sentence (the “1986 aggravated battery conviction”); his April 22, 1988 burglary conviction, which resulted in a three-year imprisonment sentence; his September 10, 1992 aggravated battery conviction, which resulted in a seven-year imprisonment sentence (the “1992 aggravated battery conviction”); and his February 17, 1998 narcotics distribution conviction, which resulted in a six-year imprisonment sentence. Jenkins argues that, after Johnson, three of those convictions-the 1986 and 1992 aggravated battery convictions and the 1988 burglary conviction-do not qualify as § 924(e) violent felonies. Because the Government waives any argument that the burglary conviction could sustain the § 924(e) sentence, see Doc. 15 at 5 (“[T]he government will not rely on the conviction for burglary”), [2] the Court turns to whether the two aggravated battery convictions, combined with the 1998 narcotics distribution conviction, which Jenkins does not challenge as a predicate for § 924(e), support the sentence.

         I. 1986 Aggravated Battery Conviction

         Jenkins pleaded guilty on November 12, 1986 to an information charging him with violating Illinois Revised Statute chapter 38, paragraph 12-4(b)(1). Doc. 15 at 15 (Opp. Ex. A, November 7, 1986 Information); id. at 19 (November 12, 1986 Judgment and Sentence). At that time, the Illinois battery statute stated that “[a] person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” Ill. Rev. Stat. 1985 ch. 38 par. 12-3. The Illinois aggravated battery statute added that “[a] person who, in committing a battery, commits aggravated battery if he either: . . . (1) uses a deadly weapon[.]” Ill. Rev. Stat. 1985 ch. 38 par. 12-4(b)(1). The parties agree that Illinois aggravated battery is not an offense enumerated in § 924(e). Cf. § 24(e)(2)(B)(ii). Jenkins argues that aggravated battery also did not have as an element the use, attempted use, or threatened use of physical force, and that his 1986 aggravated battery conviction thus does not qualify as a violent felony under § 924(e).

         To determine whether a prior conviction qualifies as a violent felony under the elements clause of § 924(e)(2)(B)(i), the Court must review the elements of the crime. United States v. Yang, 799 F.3d 750, 752 (7th Cir. 2015). If the elements of the criminal statute are divisible and have discrete theories of culpability, then the Court may also review the charging papers, judicial findings, and defendant's plea concessions to determine if the conviction qualifies as a violent felony:

[T]he “modified categorical” approach determines how to classify a prior conviction under the Armed Career Criminal Act and similar provisions. . . . Under this approach the Court asks whether the elements of the crime-rather than what the defendant did in fact-bring the conviction within the scope of the recidivist enhancement. Usually a statute will be wholly in or wholly out, but some statutes are divisible into discrete theories of criminal culpability. When a statute is divisible, a court may consider the charging papers and judicial findings, or concessions made at a plea colloquy, to determine whether the conviction qualifies.

Stanley, 827 F.3d at 565 (citations omitted). “[A]ggravated battery in Illinois is a divisible statute” that requires the modified categorical approach. Id. at 566; United States v. Rodriguez-Gomez, 608 F.3d 969, 973 (7th Cir. 2010) (“Because there is more than one way of committing battery (either by causing bodily harm or by making physical contact that is insulting or provoking), the mere fact that Rodriguez was convicted of ...


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