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United States v. Carter

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

March 14, 2017

UNITED STATES OF AMERICA,
v.
JEFFREY CARTER.

          OPINION AND ORDER

          SARA L. ELLIS UNITED STATES DISTRICT JUDGE.

         A jury convicted Jeffrey Carter in 2011 of three crimes: being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1); carjacking pursuant to 18 U.S.C. § 2119; and carrying a firearm during a crime of violence pursuant to 18 U.S.C. § 924(c)(1)(A). The trial court sentenced him to 264 months in prison, including a 180-month sentence for the § 922(g)(1) conviction under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Four 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 held that certain sentences under § 924(e) were unconstitutional as well. Carter now moves under 28 U.S.C. § 2255, after obtaining leave to file a second such motion, to vacate and correct his sentence based on Johnson. Because Carter has at least three separate felony convictions that have as elements the use, attempted use, or threatened use of physical force prior to his 2011 conviction for possessing a firearm as a felon, the Court denies Carter's motion.

         BACKGROUND

         On June 28, 2011, a jury convicted Carter of possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), participating in carjacking, 18 U.S.C. §§ 2, 2119, and carrying a firearm during a crime of violence, 18 U.S.C. §§ 2, 924(c)(1)(A). United States v. Carter, Case No. 09 CR 971-1, Docs. 100, 101 (N.D. 111.). Before his 2011 conviction, Carter pleaded guilty to six aggravated robberies in Illinois, committed in 2004 on September 17, 18, 20, 21, 24, and 25, respectively. The State's Attorney's Office originally charged Carter with armed robberies for these events but amended the indictments to aggravated robberies prior to his guilty pleas. Carter objected to the probation department's determination that he qualified as an armed career criminal under 18 U.S.C. § 924(e)(1) as a result of these aggravated robbery convictions-and the minimum fifteen-year minimum sentence for his § 922(g)(1) conviction under the ACCA-because the jury did not determine that Carter had been convicted of three separate predicate crimes for a § 924(e) sentence. See Id. Doc. 118 at 5 (objecting to judicial fact-finding for § 924(e) sentence but conceding that Supreme Court precedent foreclosed his argument). On November 2, 2011, Judge John F. Grady (hereinafter the "Sentencing Court") sentenced Carter to 264 months in custody, including 180 months imprisonment for the § 922(g)(1) conviction. Id., Doc. 130; id., Doc. 140 (amending judgment as to Carter to correct clerical error; maintaining 180-month sentence for § 922(g)(1) conviction). Carter appealed, and the Seventh Circuit affirmed his conviction. United States v. Carter, 695 F.3d 690 (7th Cir. 2012). Carter then filed a petition under 18 U.S.C. § 2255 to vacate his conviction and sentence, arguing that his attorney failed to provide him effective assistance but making no argument as to the calculation of his sentence, which the Sentencing Court denied. Carter v. United States, No. 14 C 244, 2014 WL 3705131 (N.D. 111. July 23, 2014). After the Supreme Court's decision in Johnson, the Seventh Circuit granted Carter's application to file a second petition for collateral review of his sentence. Carter v. United States, Case No. 15-3031, Doc. 4 (7th Cir. Oct. 5, 2015).

         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). If, however, the Court finds that, based upon the motion and record of the case, the prisoner conclusively is not entitled to relief, then the Court is permitted to dismiss the motion. Id.; see also Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004); Lafuente v. United States, 617 F.3d 944 (7th Cir. 2010); Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         ANALYSIS

         Carter argues that his six convictions for Illinois aggravated robbery cannot sustain his 180-month ACCA sentence because the convictions are not for violent felonies under § 924(e)(2)(B). 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. 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).

         To determine whether a prior conviction qualifies as a violent felony under § 924(e) after Johnson, the Court applies the "categorical approach" and looks at the elements of the prior offense, not the facts underlying the conviction. Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016) ("All that counts under the Act, we held then, are 'the elements of the statute of conviction.'" (citation omitted)); Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). If the elements of the criminal statute are divisible with discrete theories of culpability, then the Court may also review "conclusive records made or used in adjudicating guilt" to determine if the conviction qualifies as an ACCA predicate. Shepardv. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (favoring and limiting review to conclusive documents such as "charging documents filed in the court of conviction, or to recorded judicial acts of that court limiting convictions to the generic category, as in giving instruction to the jury"). But the Court cannot use the records to determine whether the facts of the crime could satisfy § 924(e) 's definitions of a violent felony. Mathis, 136 S.Ct. at 2253 ("In other words, 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.").

         The Government has provided certified statements of conviction/disposition for each of Carter's six aggravated robbery convictions.[1] "At the time of his convictions, the aggravated robbery statute was divisible[.]" Carter, Case No. 15-3031, Doc. 4 at 1 (7th Cir. Oct. 5, 2015).

         Illinois law stated that a person committed aggravated robbery when:

(a) . . . he or she takes property from the person or presence of another by the use of force or by threatening the imminent use of force while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm or the dangerous weapon, including a knife, club, ax, or bludgeon. This offense shall be applicable even though it is later determined that he or she had no firearm or other dangerous weapon, including a knife, club, ax, or bludgeon, in his or her possession when he or she committed the robbery.
(a-5) ... he or she takes property from the person or presence of another by delivering (by injection, inhalation, ingestion, transfer of possession, or any other means) to the victim without his or her consent, or by threat or deception, and for other than medical purposes, any controlled substance.

         720 Ill.Comp.Stat. § 5/18-5 (2005). Carter's six certified statements of conviction indicate that he was charged with and pleaded guilty to aggravated robbery, in violation of 720 Ill.Comp.Stat. § 5/18-5(a), which involved the taking of property of another "by the use of force or by threatening the use of force." See Doc. 21-2 (indicating Carter was charged with and convicted of "720-5/18-5(a) . . . AGGRAVATED ROBBERY"); Doc. 21-3 (same); Doc. 21-4 (indicating Carter was charged with and convicted of "720-5/18-5(A) . . . AGGRAVATED ROBBERY"); Doc. 21-5 (indicating Carter was charged with and convicted of "720-5/18-5(a) . . . AGGRAVATED ROBBERY" and two counts of armed robbery); Doc. 21-6 (indicating Carter was charged with and convicted of "720-5/18-5(a) . . . AGGRAVATED ROBBERY, " armed robbery, and two counts of aggravated battery); Doc. 21-5 (indicating Carter was charged with and convicted of "720-5/18-5(a) . . . AGGRAVATED ROBBERY" and two counts of armed robbery); Doc. 25-1 at 4-6 (indicating Carter was charged with and convicted of "720-5/18-5(a) . . . AGGRAVATED ROBBERY" and two counts of armed robbery).[2] Subsection (a) of the aggravated robbery statute "clearly included as an element the use, attempted use, or threatened use of physical force against the person of ...


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