United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE UNITED STATES DISTRICT COURT
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.
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).
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. §
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.
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).
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).
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).
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