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Sach v. United States

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

March 14, 2017

JOSEPH VAN SACH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo Chief Judge

         Joseph 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 denied.

         BACKGROUND

         In 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.

         In 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.

         In 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.[1] (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.[2] (R. 13, Reply at 1.) The government disagrees that Van Sach is entitled to relief under Johnson. (R. 12, Resp.)

         LEGAL STANDARD

         A 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).

         ANALYSIS

         The 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.")-[3]

         There 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.

         I. Aggravated Battery Convictions

         Because 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.[4] 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").

         In 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 ...


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