United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, U.S. District Judge.
cause is before the Court on Petitioner Shance Dalton's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (d/e 1) and
an amended motion (d/e 3) (collectively referred to as the
§ 2255 Motion). Because Petitioner is not entitled to
relief, the § 2255 Motion is DENIED.
Procedural Background Pertaining to the Underlying Criminal
2006, Petitioner pled guilty to distributing five grams or
more of cocaine base (“crack”) in violation of 21
U.S.C. § 841(a)(1) and § 841(b)(1)(B) pursuant to a
plea agreement. See United States v. Dalton,
06-20019 (hereinafter, Crim.). As part of the plea agreement,
Petitioner waived his right to appeal and collaterally attack
his conviction and sentence. Crim., Plea Agreement (d/e 14).
Probation Office prepared a Presentence Investigation Report
(PSR). Crim., PSR (d/e 22). The PSR reflected that Petitioner
qualified as a career offender under United States Sentencing
Guidelines § 4B1.1 based on two prior convictions for a
crime of violence (aggravated battery, Champaign County
Circuit Court, Case Nos. 97-CF-445 and 97-CF-1115) and one
prior conviction for a controlled substance offense
(Champaign County Circuit Court, Case No. 99-CF-31).
Id. ¶ 25; see also U.S.S.G. §
4B1.1 (2006) (providing that a defendant is a career offender
if he is at least 18 years old when he committed the instant
offense, the instant offense is a felony that is either a
crime of violence or a controlled substance offense, and the
defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense). It is
unclear whether the Court found that the convictions
qualified under the elements clause of the career offender
guideline or the residual clause. Compare U.S.S.G.
§ 4B1.2(a)(1) (2006) (defining a crime of violence to
include an offense that “has as an element the use,
attempted use, or threatened use of physical force against
the person of another”) with §4B1.2(a)(2)
(defining a crime of violence to include an offense that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another”).
light of the career offender designation, Petitioner's
advisory sentencing guideline range was 262 to 327 months.
Crim., PSR ¶ 70. The statutory minimum sentence was 120
months and the maximum term was life. Id. ¶ 69
(citing 21 U.S.C. § 841(b)(1)(B)). In April 2007, former
United States District Judge Michael P. McCuskey sentenced
Petitioner to 262 months' imprisonment to run
concurrently with Petitioner's state conviction in
Champaign County Case No. 07-CF-363. Crim., Judgment (d/e
February 2008, the Government filed a Motion for Hearing to
Determine Whether Defendant Violated Terms of Plea Agreement.
Crim., Mot. (d/e 27). In May 2008, following a hearing, Judge
McCuskey found that Petitioner had violated the terms of the
plea agreement by failing to provide complete and truthful
information regarding other criminal activity. Crim., May 29,
2008 Minute Entry; May 29, 2008 Tr. at 19 (d/e 47). The Court
voided the plea agreement, stated that Petitioner could not
withdraw his guilty plea, and set the matter for
resentencing. Id. On July 31, 2008, Judge McCuskey
vacated the original judgment and resentenced Petitioner to
441 months' imprisonment, to run concurrently with the
state conviction in Champaign County Case No. 07-CF-363.
Crim., Text Order of July 31, 2008; Judgment (d/e 40)
(judgment dated August 1, 2008). Petitioner appealed. In
November 2009, the Seventh Circuit entered an order granting
the Government's motion to vacate the district
court's decision, stating:
This case is remanded to the district court with instructions
to vacate the order entered on July 31, 2008, vacating
[Petitioner's] original sentence, and the judgment
entered on August 1, 2008, imposing the new sentence. The
district court lacked jurisdiction to alter
[Petitioner's] sentence. See United States v.
Lawrence, 535 F.3d 631, 637 (7th Cir. 2008).
Crim., Mandate (d/e 56). On remand, Judge McCuskey vacated
the order entered July 31, 2008, which had vacated
Petitioner's original sentence, and vacated the judgment
entered August 1, 2008, which had imposed a new sentence.
Crim. Text Order of December 8, 2009. The Court did not
appoint counsel to represent Petitioner and did not hold a
new sentencing hearing. On January 29, 2010, the Court
entered an Amended Judgment, noting that the judgment dated
August 1, 2008 was vacated pursuant to the Seventh
Circuit's mandate and that the original judgment dated
April 24, 2007 was reimposed. Crim., Am. Judgment (d/e 60).
Background Pertaining to Petitioner's § 2255
2016, Petitioner filed a Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody based on Johnson v. United States,
135 S.Ct. 2551 (2015) (holding that the residual clause of
the Armed Career Criminal Act is unconstitutionally vague).
See d/e 1 (filed June 14, 2016), d/e 3 (filed June
21, 2016). Petitioner argued that his Illinois aggravated
battery convictions no longer qualified as crimes of violence
for purposes of the career offender guideline. The Court
appointed counsel to represent Petitioner. The Government
does not dispute that Petitioner's aggravated battery
convictions, which were under the “insulting and
provoking” prong of the Illinois statute, no longer
qualify as crimes of violence. Resp. at 5 (d/e 12); see
also (d/e 17) (copies of the charging documents for
Petitioner's aggravated battery convicitons).
Johnson was decided, courts considered whether
Johnson applied to invalidate the identically worded
residual clause in the career offender guideline, §
4B1.2(a)(2). In August 2016, the Seventh Circuit held that it
did. United States v. Hurlburt, 835 F.3d 715, 725
(7th Cir. 2016) (applying Johnson and holding that
the residual clause in § 4B1.2(a)(2) is
March 6, 2017, the United States Supreme Court decided
Beckles v. United States, 137 S.Ct. 886 (2017). The
Supreme Court held that the “advisory Guidelines are
not subject to vagueness challenges under the Due Process
Clause” and the residual clause in § 4B1.2(a)(2)
is not void for vagueness. Id. at 890 (also
abrogating Hurlburt ...