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Dorsey v. United States

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

April 6, 2017

MICHAEL DORSEY, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          HARRY D. LEINENWEBER, JUDGE UNITED STATES DISTRICT COURT

         For the reasons stated herein, Petitioner Michael Dorsey's Motion for Relief under 28 U.S.C. § 2255 [ECF No. 1] is denied. The Court declines to issue a Certificate of Appealability.

         I. BACKGROUND

         In November 2011, Michael Dorsey (“Dorsey”) pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). See, United States v. Dorsey, No. 10-CR-645, ECF No. 41 ¶¶ 1-5 (N.D. Ill. Oct. 26, 2011). Prior to this plea, Dorsey had been convicted under Illinois law of armed robbery in six separate cases, attempted armed robbery in another case, and (mere) robbery in yet another. Id. ¶ 10(c). Adding to these convictions incurred as an adult, Dorsey was also convicted as a juvenile for armed robbery. See, Dorsey v. United States, No. 16-CV-6592, ECF No. 1 at 5 (Dorsey's § 2255 Mot.) (N.D. Ill. June 23, 2016).

         The Court sentenced Dorsey to 15 years of incarceration, the minimum mandatory sentence under the Armed Career Criminal Act (“ACCA”). See, United States v. Dorsey, ECF No. 56. While a person may be punished by a term of imprisonment of up to only 10 years under 18 U.S.C. § 922(g), see, 18 U.S.C. § 924(a)(1)(D)(2), the ACCA increases that sentence to a minimum of 15 years where the person has three previous convictions for a “violent felony . . . committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

         The ACCA defines a “violent felony” in alternative ways. Under the statute, a “violent felony” is either “any crime punishable by imprisonment for a term exceeding one year” or “any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult.” 18 U.S.C. § 924(e)(2)(B). Moreover, it is necessary that the crime or juvenile delinquency

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

Id. Part (i) of the definition qualifying an individual's prior offense as a violent felony is known as the elements clause. Part (ii), specifically the last piece which reads, “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” is known as the residual clause.

         In 2015, the Supreme Court declared the residual clause unconstitutionally vague. See, Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). A year later, the Court announced that its ruling from Johnson applies retroactively. See, Welch v. United States, 136 S.Ct. 1257, 1268 (2016). It thus allowed individuals who were sentenced under the residual clause of the ACCA before the issuance of Johnson to move to correct their sentences. See, id.; see also, Price v. United States, 795 F.3d 731, 734-35 (7th Cir. 2015).

         Dorsey brings this § 2255 petition, claiming that he is such an individual. He argues that, after Johnson, his prior offenses no longer qualify as “violent felonies” under the ACCA. As mentioned above, Dorsey has a conviction for robbery, which is defined under Illinois law as “knowingly tak[ing] property . . . from the person or presence of another by the use of force or by threatening the imminent use of force.” 720 ILCS 5/18-1. He also has convictions for armed robbery, meaning that he was guilty of committing robbery while at least “carr[ying] on or about his . . . person . . . a dangerous weapon.” See, 720 ILCS 5/18-2 (defining armed robbery as robbery coupled with the use or presence of a weapon, the least serious form of which is given above).

         Given these prior convictions, Dorsey's sentence must stand as is. Moreover, since the materials in this case conclusively show that Dorsey is entitled to no relief, the Court makes this determination without an evidentiary hearing. See, 28 U.S.C. § 2255(b); Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004).

         II. ANALYSIS

         The Court concludes that Dorsey's 15-year sentence is proper under the elements clause of the ACCA. This clause survives Johnson intact. See, Johnson, 135 S.Ct. at 2563 (“Today's decision does not call into question . . . 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.”); United States v. Smith, No. 16-1895, 2016 U.S. App. LEXIS 18277, at *2 (7th Cir. Oct. 7, 2016) (“Johnson does not affect convictions classified under the elements clause of the . . . Armed Career Criminal Act.”). Accordingly, as long as Dorsey's criminal record contains three ...


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