United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Castillo Chief Judge
Van Sach moves to vacate his sentence pursuant to 28 U.S.C.
§ 2255 based on the U.S. Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015). (R.
5, Mot.) For the reasons set forth below, his motion is
2005, Van Sach was convicted of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g).
United States v. Van Sach, 458 F.3d 694, 696 (7th
Cir. 2006). He was sentenced to 210 months under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e)- which provides enhanced sentences for defendants who
have three or more prior violent felony convictions-based on
his Illinois convictions for aggravated battery to a police
officer and armed robbery. Id. at 703-05. In 2006,
his federal conviction and sentence were affirmed by the U.S.
Court of Appeals for the Seventh Circuit in all respects.
Id. at 699-705.
2008, Van Sach filed a motion under Section 2255 seeking to
vacate his sentence on grounds that the Court committed
various errors at trial and at sentencing. Van Sach v.
United States, No. 08 C 304, ECF No, 1. The Court denied
his motion. Id., ECF No. 4. He appealed, but his
appeal was dismissed by the Seventh Circuit for failure to
pay the docketing fee without a determination of the merits.
Id., ECF No. 16.
April 2016, Van Sach sought leave from the Seventh Circuit to
pursue a second motion under Section 2255 based on the
Supreme Court's 2015 decision in Johnson, which
found a portion of the ACCA void on vagueness
grounds. (R. 1, Mot.) The Seventh Circuit issued an
order authorizing this Court to consider Van Sach's
proposed Johnson claim. (R. 2, 7th Cir. Order.) In
his filings with this Court, Van Sach argues that his
Illinois convictions for aggravated battery to a police
officer and armed robbery no longer constitute
violent felonies for purposes of the ACCA after
Johnson, (R. 5, Mot. at 1-3; R. 13, Reply at 2-14.)
He argues that he has already served the maximum sentence
that could have been imposed without the ACCA enhancement and
should be immediately released from custody. (R. 13, Reply at
1.) The government disagrees that Van Sach is entitled to
relief under Johnson. (R. 12, Resp.)
federal prisoner can move to vacate his sentence on "the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States ... or is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
"Relief under this statute is available only in
extraordinary situations, such as an error of constitutional
or jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of
justice." Blake v. United States, 723 F.3d 870,
878-79 (7th Cir. 2013).
ACCA provides enhanced sentences for defendants convicted of
violating 18 U.S.C. § 922(g) who have "three
previous convictions by any court... for a violent felony or
a serious drug offense." 18 U.S.C. § 924(e)(1). A
defendant who meets this definition is subject to a mandatory
prison sentence of 15 years to life. Id. The ACCA
defines "violent felony" as "any crime
punishable by imprisonment for a term exceeding one
year" that meets one of the following requirements: (1)
it "has as an element the use, attempted use, or
threatened use of physical force against the person of
another"; (2) it is burglary, arson, extortion, or an
offense involving the use of explosives; or (3) it
"otherwise involves conduct that presents a serious
potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii). The first clause is commonly
referred to as the "elements clause, " the second
as the "enumerated crimes clause, " and the third
as the "residual clause." In Johnson, the
Supreme Court invalidated the residual clause as unduly
vague, but left intact the enumerated crimes clause and the
elements clause. See Johnson, 135 S.Ct. at 2563
("Today's decision does not call into question
application of the [ACCA] to the four enumerated offenses, or
the remainder of the Act's definition of a violent
felony."); Stanley v. United States, 827 F.3d
562, 564 (7th Cir. 2016) (“Johnson holds that
the residual clause is unconstitutionally vague.
Johnson does not otherwise affect the operation of
the Armed Career Criminal Act.")-
is no question that Van Sach was convicted of violating 18
U.S.C. § 922(g), or that he has three Illinois
convictions: two for aggravated battery of a police officer
and one for armed robbery. He argues, however, that these
offenses cannot be characterized as "violent
felonies" after Johnson and thus his enhanced
sentence is invalid.
Aggravated Battery Convictions
the residual clause has been invalidated, Van Sach's
aggravated battery convictions must fall under either the
elements clause or the enumerated crimes clause to count as
predicates. Aggravated battery is obviously not one of
the enumerated offenses, 18 U.S.C. § 924(e)(2)(B)(ii),
which leaves the elements clause as the only possibility. As
stated above, a prior conviction falls under the elements
clause if it "has as an element the use, attempted use,
or threatened use of physical force against the person of
another." Id. The Supreme Court has interpreted
"physical force" in this context to mean
"violent force-that is, force capable of
causing physical pain or injury to another person."
Curtis Johnson v. United States, 559 U.S. 133,
140-42 (2010) ("Curtis Johnson").
determining whether a prior conviction qualifies as an ACCA
predicate, courts ordinarily apply a "categorical
approach, " which focuses solely on the text of the
statute underlying the conviction. United States v.
Mathis,136 S.Ct. 2243, 2248 (2016). Application of this
approach "is straightforward when a statute sets out a
single (or 'indivisible') set of elements to define a
single crime." Id. The Court simply "lines
up that crime's elements alongside those of the generic
offense and sees if they match." Id. The
analysis becomes difficult, however, when the relevant
statute "ha[s] a more complicated (sometimes called
'divisible') structure, making the comparison of
elements harder." Id. at 2249. In other words,
"[a] single statute may list elements in the
alternative, and thereby define multiple crimes, " some
of which involve violent force while others do not.
Id. In such cases, the Court employs a
"modified categorical approach." Id. Under
this approach, the Court may look to "a limited class of
documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of."
Id. But even under that approach, the question is
not "what the defendant did in fact, " but rather,
"whether the elements of the crime . .. bring the
conviction within the scope of the recidivist
enhancement." Stanley, 827 F.3d at 565; see