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Jordan v. United States

United States District Court, C.D. Illinois, Springfield Division

September 13, 2017

ANTHONY JORDAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on Petitioner Anthony Jordan's Amended Motion to Vacate Sentence Under 28 U.S.C. § 2255 (d/e 5). Because Petitioner is not entitled to relief, the amended § 2255 motion is DENIED. Accordingly, the Government's Motion to Revoke Petitioner's Release (d/e 19) is GRANTED.

         I. BACKGROUND

         A. Procedural Background Pertaining to Petitioner's Underlying Criminal Case.

         In July 2006, Petitioner, pursuant to a written plea agreement, pled guilty to distributing five or more grams of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). See United States v. Jordan, Case No. 04-cr-20008 (hereinafter, Crim.), Plea Agreement (d/e 7). As part of the plea agreement, Petitioner waived his right to appeal and collaterally attack his conviction and sentence. Id.; see also Resp. App'x 1 at 25, 27-29 (d/e 6-1).

         Prior to Petitioner's sentencing, the U.S. Probation Office prepared a Presentence Investigation Report (PSR), which stated that Petitioner qualified as a career offender under United States Sentencing Guideline § 4B1.1 due to three prior convictions for crimes of violence: aggravated battery, Champaign County Circuit Court, Case No. 95-CF-452; mob action, Champaign County Circuit Court, Case No. 98-CF-1767; and domestic battery, Champaign County Circuit Court, Case No. 01-CF-1024. Crim., Presentence Investigation Report, ¶ 20 (d/e 66). A defendant is a career offender if he is at least 18 years old at the time 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. U.S.S.G. § 4B1.1 (2005). Former United States District Judge Michael P. McCuskey subsequently adopted the U.S. Probation Office's findings at sentencing. See Crim., d/e 69.

         Having been designated a career offender, Petitioner's offense level increased from 28 to 34, and his sentencing guideline range rose from 140 to 175 months to a range of 262 to 327 months. Crim., PSR, ¶ 56. The statutory minimum sentence was five years; the statutory maximum, forty. Id. ¶ 55 (citing 21 U.S.C. § 841(b)(1)(B)). In July 2006, Judge McCuskey sentenced Petitioner to 262 months' imprisonment. Crim., Judgment (d/e 68). Petitioner filed an appeal, see Crim., d/e 70, which was later dismissed by the United States Court of Appeals for the Seventh Circuit. Crim., Mandate (d/e 80). In 2008, Petitioner filed a § 2255 petition, which was denied that same year. See Jordan v. United States, Case No. 08-cv-02048, Motion (d/e 1); Judgment (d/e 7).

         B. Background Pertaining to Petitioner's § 2255 Motion.

         On December 8, 2015, Petitioner filed a § 2255 motion based on Johnson v. United States, 135 S.Ct. 2551 (2015). See d/e 1. The Supreme Court there held that the residual clause of the Armed Career Criminal Act is unconstitutionally vague. Johnson, 135 S.Ct. at 2563; 18 U.S.C. § 924(e)(2)(B)(ii) (the ACCA “residual clause”) (defining the term “violent felony” to include “conduct that presents a serious potential risk of physical injury to another”). The Seventh Circuit authorized this Court to consider Petitioner's claim, an act necessary for the filing of a second § 2255 motion. See d/e 2; 28 U.S.C. § 2255(h). This Court then appointed the Federal Public Defender's Office to represent Petitioner, which then filed Petitioner's amended § 2255 motion.

         In his amended motion, Petitioner argues both that the residual clause of the career offender guideline, identical in language to the residual clause of the Armed Career Criminal Act, is void for vagueness under Johnson and that he has only one prior conviction for a crime of violence. See U.S.S.G. § 4B1.2(a)(2) (2005) (defining a crime of violence as an offense that “involves conduct that presents a serious potential risk of physical injury to another”). Under Johnson, mob action cannot qualify as a crime of violence, as it can qualify only under the now-invalidated residual clause. See U.S. v. Cole, 298 F.3d 659, 661 (7th Cir. 2002); Am. Mot. at 2 (d/e 5); U.S.S.G. § 4B1.2(a)(2) (2005). Similarly, a domestic battery conviction can no longer qualify as a crime of violence. See United States v. Evans, 576 F.3d 766, 767-69 (7th Cir. 2009); Am. Mot. at 2 (d/e 5). This calculus leaves Petitioner with only one crime of violence conviction-his conviction for aggravated battery. Therefore, Petitioner asserts, he should not have been sentenced as a career offender.

         In the Government's original response to Petitioner's amended motion, the Government did not contest Petitioner's claim that Johnson applies to the guidelines. Rather, the Government asserted that Johnson is not retroactively applicable to guidelines cases on collateral review and further argued that Petitioner waived his right to collaterally attack his sentence. Resp. at 6 (d/e 6). The Court stayed Petitioner's case pending appellate resolution of the effect of Johnson on the identically worded residual clause in the career offender guideline.

         In August 2016, the Seventh Circuit held that Johnson did apply to the guidelines. 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) was unconstitutionally vague). In the wake of Hurlburt, the Court granted Petitioner's motion to be released on bond (d/e 9) and ordered Petitioner's release pending resolution of his § 2255 motion. See Opinion (d/e 15). But on March 6, 2017, the United States Supreme Court decided Beckles v. United States, holding that the “advisory Guidelines are not subject to vagueness challenges under the Due Process Clause” and that the residual clause in § 4B1.2(a)(2) is not void for vagueness. 137 S.Ct. 886, 890 (2017) (also abrogating Hurlburt). Shortly thereafter, the Government filed a notice in this case regarding supplemental authority, asserting that Beckles forecloses Petitioner's Johnson-based challenge to his career offender designation. The Government also argues for the revocation of Petitioner's bond, stating that Petitioner violated his bond conditions, see Notice (d/e 19) (noting that “approximately one month into his release, [Petitioner] violated his conditions of location monitoring” and currently faces state felony charges for aggravated battery of a peace officer and aggravated battery of a nurse). The Government contends, as the Government did in its original response, that Petitioner previously waived his right to collaterally attack his sentence.[1] Id. at 8 n.3.

         II. ANALYSIS

         If the waiver in Petitioner's plea agreement bars Petitioner from collaterally attacking his sentence, as the Government asserts, Petitioner's claim cannot proceed. The Seventh Circuit has “consistently rejected arguments that an appeal waiver is invalid because the defendant did not anticipate subsequent legal developments.” United States v. McGraw, 571 F.3d 624, 631 (7th Cir. 2009). But ...


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