United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
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.
Procedural Background Pertaining to Petitioner's
Underlying Criminal Case.
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).
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.
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).
Background Pertaining to Petitioner's § 2255
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.
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
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.
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. Id. at 8 n.3.
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