United States District Court, S.D. Illinois
JEFFREY L. DEVIN a/k/a JEFFERY L. DEVIN, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No 07-cr-40043-JPG-01
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on petitioner Jeffrey L.
Devin's amended motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255 (Doc. 7). The
Government has responded to the amended § 2255 motion
(Doc. 9). 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.
preliminary review of the amended § 2255 motion, the
Court set forth the history of this case:
On July 9, 2007, Devin pled guilty to one count of conspiring
to manufacture more than 50 grams of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)
and 846, and one count of possessing equipment, chemicals,
products or materials to manufacture methamphetamine in
violation of 21 U.S.C. § 843(a)(6). At the
petitioner's sentencing on November 15, 2007, the Court
found that the petitioner was a career offender based on one
prior conviction for a drug crime (conspiracy to distribute
and possess with intent to distribute methamphetamine) and
one prior conviction for a crime of violence (aggravated
fleeing to elude police). See United States
Sentencing Guidelines Manual (“U.S.S.G.”) §
4B1.1 (2006). The Court sentenced the petitioner to serve 280
months in prison. The petitioner did not appeal his sentence.
Mem. & Ord. at 1 (Doc. 8).
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, the petitioner 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 aggravated fleeing
to elude police was a “crime of violence”
supporting CO 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 clause).
petitioner's 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 725.
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 the petitioner's argument that he is entitled
to § 2255 relief. There was nothing unconstitutional
about the Court's using the CO residual clause to find
Devin's prior conviction for aggravated fleeing to elude
police 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 sentencing range.
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 the petitioner has not made such a showing
and, accordingly, declines to issue a certificate of
this reason, the Court DENIES Devin's amended § 2255
petition (Doc. 7), DECLINES to issue a certificate of
appealability and DIRECTS the ...