United States District Court, S.D. Illinois
KEON D. PENDLETON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE
matter comes before the Court on petitioner Keon D.
Pendleton's amended motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255 (Doc.
8). The Government has responded to the amended § 2255
motion (Doc. 12), along with a supplemental to its response
(Doc. 13), and the petitioner has replied (Doc. 14). Also
pending before the Court is Petitioner's Motion [Doc. 18]
to Dismiss By Court Order and Motion [Doc. 19] to Appoint New
preliminary review of the amended § 2255 motion, the
Court set forth the history of this case:
On November 9, 2006, the petitioner entered a guilty plea to
one count of conspiracy to distribute 50 grams or more of
crack cocaine. He was sentence on March 6, 2007, to the
custody of the Bureau of Prisons for 262 months, 10 years of
supervised release, and a fine of $100.00. See United
States v. Pendleton, 06-cr-40029-JPG.
The petitioner filed a pro se § 2255 motion
(Doc. 1) on February 5, 2016. The Court appointed him
counsel, and on November 8, 2016, counsel filed an amended
§ 2255 motion (Doc. 8). In the amended motion, the
petitioner raises the following claim:
• The petitioner's due process rights were violated
by application of the residual clause of the career offender
guideline, U.S.S.G. § 4B1.2(a)(2), to find his prior
2005 conviction for aggravated battery was a “crime of
violence” supporting career offender status. See
United States v. Hurlburt, No. 14-3611 & 15-1686, 2016
WL 4506717, *7 (7th Cir. Aug. 29, 2016) (en banc;
holding on direct appeal that application of career offender
residual clause was due process violation because it was
Mem. & Ord. of Nov. 14, 2016 (Doc. 9).
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). The Court finds that an
evidentiary hearing is not warranted in this matter as the
petitioner is entitled to no relief.
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 battery
in 2005 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 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
Mr. Pendleton's prior conviction for aggravated battery
was a crime of violence and increasing his guideline
sentencing range accordingly. This is because the Court's
guideline range findings did not fix ...