United States District Court, S.D. Illinois
TERRENCE R. VANCE, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 09-cr-40070-JPG
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on petitioner Terrence R.
Vance's amended motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255 (Doc. 4). The
Court of Appeals for the Seventh Circuit authorized Vance to
file this successive petition on September 29, 2015 (Case No.
00-cr-40070-JPG, Doc. 101). The Government has responded to
Vance's amended § 2255 motion (Doc. 9), and Vance
has replied to that response (Doc. 12). Following the Supreme
Court's decision in Beckles v. United States,
No. 15-8544, 2017 WL 855781 (U.S. Mar. 6, 2017), the
Government filed a supplemental brief discussing the impact
of that case (Doc. 15). The Court also considers Vance's
motion for bond pending resolution of his amended § 2255
motion (Doc. 5), to which the Government has responded (Doc.
8), and Vance has replied (Doc 13).
preliminary review of Vance's amended § 2255 motion,
the Court set forth the history of this case:
On March 16, 2010, the petitioner pled guilty to two counts
of possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841(a)(1). At the
petitioner's sentencing on September 17, 2010, the Court
found that the petitioner was a career offender based on one
prior conviction for a crime of violence (stealing from a
person) and one prior conviction for a drug crime
(distribution of a controlled substance). See United
States Sentencing Guidelines Manual (“U.S.S.G.”)
§ 4B1.1 (2009). The Court sentenced the petitioner to
serve 262 months in prison. The petitioner appealed, and the
Court of Appeals affirmed the Court's decision,
United States v. Vance, 659 F.3d 613 (7th Cir.
2011), but the Supreme Court vacated the judgment and
remanded for resentencing in light of Dorsey v. United
States, 132 S.Ct. 2321 (2012) (finding the Fair
Sentencing Act of 2010 applied to a defendant sentenced after
enactment even if the offense of conviction occurred before
enactment). Vance v. United States, 133 S.Ct. 65
On remand, the Court held a new sentencing proceeding on
November 20, 2012. The Court again found the petitioner to be
a career offender based on the same prior convictions and
sentenced him to serve 200 months in prison. The petitioner
again appealed, and on August 20, 2013, the Court of Appeals
granted counsel's motion to withdraw and dismissed the
appeal. United States v. Vance, 527 Fed. App'x
568 (7th Cir. 2013). The petitioner did not seek a writ of
certiorari from the Supreme Court.
Mem. & Ord. at 1-2 (Doc. 7).
Court must grant a § 2255 motion when a defendant's
“sentence was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255.
However, “[r]elief under § 2255 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.'” United States v.
Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013)). It is proper to deny a § 2255 motion
without an evidentiary hearing if “the motion and the
files and records of the case conclusively demonstrate that
the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b); see Sandoval v. United States, 574
F.3d 847, 850 (7th Cir. 2009).
amended § 2255 motion, Vance argues that his due process
rights were violated when the Court applied the residual
clause of the career offender (“CO”) guideline to
find his prior conviction for stealing from a person was a
“crime of violence” supporting career offender
status, and thus a higher guideline sentencing range. The CO
guideline states, in pertinent part, that a prior offense is
a crime of violence if it “is burglary of a dwelling,
arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2) (emphasis added to residual
argument relies on Johnson v. United States, 135
S.Ct. 2551 (2015), which held that the use of the identical
residual clause in the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), to increase the statutory sentencing range is
unconstitutional. Id. at 2563. This is because the
vagueness of the clause denies fair notice to a defendant of
his potential punishment and invites arbitrary enforcement by
judges. Id. at 2557. In United States v.
Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en
banc), the Seventh Circuit Court of Appeals applied the
same rationale to hold that use of the CO residual clause to
support CO status, thereby increasing the guideline
sentencing range, is also unconstitutional. Id. at
however, was abrogated by Beckles, which held that
sentencing guidelines are not amendable to vagueness
challenges. Beckles, 2017 WL 855781, at *6. This is
because, unlike the statute at issue in Johnson,
advisory guidelines “do not fix the permissible range
of sentences” but “merely guide the exercise of a
court's discretion in choosing an appropriate sentence
within the statutory range.” Id.
forecloses Vance's argument that he is entitled to §
2255 relief. There was nothing unconstitutional about the
Court's using the CO residual clause to find Vance's
prior conviction for stealing from a person was a crime of
violence and increasing his guideline sentencing range
accordingly. This is because the Court's guideline range
findings did not fix the sentencing range but merely guided
the Court's discretion within the fixed statutory
to Rule 11(a) of the Rules Governing § 2255 Proceedings
and Rule 22(b)(1) of the Federal Rules of Appellate
Procedure, the Court considers whether to issue a certificate
of appealability of this final order adverse to the
petitioner. A certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see Tennard v. Dretke, 542 U.S.
274, 282 (2004); Ouska v. Cahill-Masching, 246 F.3d
1036, 1045 (7th Cir. 2001). To make such a showing, the
petitioner must “demonstrate that reasonable jurists
could debate whether [the] challenge in [the] habeas petition
should have been resolved in a different manner or that the
issue presented was adequate to deserve encouragement to
proceed further.” Ouska, 246 F.3d at 1046;
accord Buck v. Davis, 137 S.Ct. 759, 773 (2017);
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The
Court finds that Vance has not made such a showing and,
accordingly, declines to issue a certificate of
this reason, the Court DENIES Vance's amended § 2255
petition (Doc. 4), DECLINES to issue a certificate or
appealability and DIRECTS the Clerk of Court to enter
judgment accordingly. In light of ...