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Thomas v. United States

United States District Court, C.D. Illinois

May 4, 2017

TYRON THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND OPINION

          JAMES E. SHADID CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is now before the Court on Petitioner Thomas's § 2255 Motion [1] to Vacate, Set Aside, or Correct Sentence. For the reasons set forth below, Thomas's Motion [1] is DENIED

         Background

         On May 5, 2006, Petitioner Thomas was charged by way of indictment with six counts: (Count 1) Conspiracy to Commit Armed Bank Robbery, to Commit Robbery, and to Carry and Use a Firearm During and in Relation to and to Possess a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 371; (Count 6) Armed Robbery, in violation of 18 U.S.C. §§ 1951 and 1952; (Count 7) Carrying and Using a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c); (Count 8) Armed Bank Robbery, in violation of 18 U.S.C. § 2113(a) and (d); (Count 9) Carrying and Using a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c); and (Count 10) Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). On October 12, 2006, Thomas entered an open plea of guilty to each of the six counts. United States v. Williams et al, No. 06-20032-4 (C.D. Ill. 2006).

         In a Presentence Investigation Report (“PSR”), the Probation Office determined that Thomas's t otal offense level after a three point reduction for acceptance of responsibility was 30.Thomas qualified as an Armed Career Criminal under 18 U.S.C. § 924(e)(1) and (e)(2) and the Guidelines, based on three prior convictions: unlawful possession of a controlled substance with intent to deliver, a juvenile conviction for attempted armed robbery, and a juvenile conviction for home invasion. The PSR noted that because Thomas used a firearm (as charged in Count 10) in relation to a crime of violence (Armed Bank Robbery), his offense level would ordinarily be set at 34, with a three-level reduction for acceptance of responsibility yielding a total offense level of 31. See USSG § 4B1.4(b)(3)(a). However, because Thomas was also being sentenced for his § 924(c) conviction, USSG § 4B1.4 n.2 provided that the offense levels set forth in § 4B1.4(b)(3)(A) and (c)(2) would not apply. Thus, Thomas's total offense level after chapter four enhancements remained at 30.

         Prior to his sentencing on March 13, 2007, the Court granted the United States' motion to dismiss Count 10, the charge of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). This charge was the only offense subjecting Thomas to either Armed Career Criminal or Career Offender status. The Court also granted the United States' motion for downward departure for Thomas's substantial assistance to the government. Thomas was then sentenced to an aggregate term of 444 months of imprisonment. He received concurrent terms of 60 months, 135 months, and 135 months for Counts 1, 6, and 8, followed by a consecutive term of 120 months on Count 7, and followed by another consecutive term of 189 months on Count 9. Thomas did not appeal.

         In his instant § 2255 motion, Thomas argues that he no longer qualifies as an Armed Career Criminal in light of Johnson v. United States, 135 S.Ct. 2251 (2015). Additionally, Thomas argues that he is actually innocent of Counts 7 and 9 because § 924(c) was invalidated by Johnson, making his bank robbery and Hobbs act robbery no longer qualifying predicate “crimes of violence.” In response, the United States argues that Johnson has no impact on Thomas's sentence because the only conviction which subjected him to Armed Career Criminal status was dismissed prior to sentencing. Further, the United States argues that Johnson has no bearing on the residual clause in 18 U.S.C. § 924(c), and even if it did, Thomas's predicate offenses fell under the “use of force” or “elements” clause, not the residual clause.

         Legal Standard

         A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that “vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude.Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993). A § 2255 motion is not a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996).

         Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1) issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing of cause for the default and actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 710-20 (7th Cir. 1994).

         Analysis

         (1) Johnson is Inapplicable Because Petitioner was not Sentenced Under the Armed Career Criminal Act

         Petitioner first argues that he no longer qualifies as an Armed Career Criminal in light of Johnson v. United States, 135 S.Ct. 2251 (2015). Johnson held that the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague in violation of the Due Process Clause. 135 S.Ct. at 2557. Here, although Thomas qualified for an enhanced sentence under the ACCA, the only count which subjected him to the enhanced sentence under the statute-possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)-was dismissed prior to sentencing. Therefore, because Thomas was never sentenced as an Armed Career Criminal under § 924(e)(2), his first claim is denied.

         (2) Johnson Applies to ยง 924(c), but Thomas's Predicate Offenses for Bank Robbery and Hobbs Act ...


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