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United States v. Chavis

United States District Court, N.D. Illinois, Western Division

November 20, 2017

United States of America, Plaintiff,
v.
Andrew A. Chavis, Defendants.

          ORDER

          Philip G. Reinhard Judge.

         For the following reasons, defendants' motion to supplement [26] is granted, and defendant's 28 U.S.C. § 2255 motion [1] is dismissed as untimely. The court declines to grant a certificate of appealability. The case is terminated.

         STATEMENT

         On May 26, 2016, defendant Andrew A. Chavis filed a motion challenging his sentence under 28 U.S.C. § 2255 [1]. On June 30, 2016, the court stayed these matters pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017) [7], and lifted the stay on March 10, 2017, following the Beckles decision [13]. Defendant filed a motion to supplement [14] on March 14, 2017, which is granted. The Federal Defender Program moved to withdraw, which the court granted [21], and defendant continued pro se. After the court ordered supplemental briefing regarding the Supreme Court's decision in Beckles, the government filed a response on June 2, 2017 [24] and defendant filed a reply on June 16, 2017 [25]. Defendant also filed a motion to supplement on October 10, 2017 [26], which is granted. This matter is now ripe for the court's review.

         The government has challenged defendant's § 2255 motion on the grounds that: (1) it falls squarely under Beckles because defendant was effectively sentenced under the post-Booker Guidelines; (2) even if defendant was sentenced under the pre-Booker Guidelines, his claims are time barred; and (3) his claims are procedurally defaulted. Defendant disputes these challenges and argues that his underlying claims are meritorious. The court agrees with the government that Beckles controls. Moreover, the court agrees with the government that defendant's claims are time barred even if Beckles does not control. As such, the court need not reach the issue of procedural default or the merits of defendant's claims.

         A. Beckles.

         First, as the government points out, defendant was sentenced in 2003, prior to Booker. See United States v. Chavis, Case No. 03 CR 50028, at Doc. #109 (N.D. Ill.). While his sentence was on appeal, however, Booker was decided. As such, the Seventh Circuit issued a limited remand so that this court could decide whether it would impose the same sentence if the case were returned for resentencing under the post-Booker advisory Guidelines. This court responded that it would impose the same sentence if the case were remanded for resentencing under the advisory Guidelines, and the Seventh Circuit subsequently affirmed. See United States v. Chavis, 184 F. App'x 574 (7th Cir. 2006) (“The district court has responded that it would again impose the identical sentence of 420 months on Chavis post-Booker. Since Chavis's sentence would remain the same, the Booker error did not affect Chavis's substantial rights, and Chavis cannot show plain error.”) (citing United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005)) (“[W]hat an appellate court should do in Booker cases in which it is difficult for us to determine whether the error was prejudicial is, while retaining jurisdiction of the appeal, order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence. If so, we will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable, the standard of appellate review prescribed by Booker[.]”) (internal citations omitted).

         Because the court was ultimately afforded the discretion to impose a sentence that deviated from the Guidelines, under the recognized Paladino limited remand procedure, defendant was effectively sentenced under the post-Booker advisory Guidelines. The Supreme Court in Beckles v. United States, 137 S.Ct. 886 (2017) explicitly held that “[b]ecause the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)'s residual clause is not void for vagueness.” See id. at 897. As such, Beckles controls and defendant's § 2255 motion must be dismissed.

         B. Timeliness.

         The government argues that, even if the court were to consider defendant's sentence to be pre-Booker, defendant's motion is nonetheless time-barred under 28 U.S.C. § 2255(f). The parties agree that the motion is not timely under § 2255(f)(1), because defendant's sentence became final over one year ago, but defendant argues that it is timely under § 2255(f)(3), which holds that a motion is timely if it is filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). Defendant contends that the right he asserts was newly recognized by the Supreme Court in Johnson, decided within one year of defendant's motion.

         The parties agree that Johnson “newly recognized” a “right” that applies to defendants whose sentences were enhanced through ACCA, specifically the residual clause of the definition of “violent felony” in 18 U.S.C. § 924(e)(2)(B)(ii). This was made clear by the Supreme Court when it made Johnson retroactive in Welch v. United States, 136 S.Ct. 1257 (2016). The Court in Welch noted that “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final” and found that “It is undisputed that Johnson announced a new rule.” See Welch v. United States, 136 S.Ct. 1257, 1264 (2016). The court also found that “by striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering the range of conduct or the class of persons that the Act punishes.” Id. at 1265 (internal quotations and alterations omitted). The issue presented in this case is whether the right newly recognized in Johnson extends beyond ACCA and should be construed broadly enough to apply to defendants whose sentences were enhanced through the pre-Booker mandatory guidelines, specifically the residual clause of the definition of “crime of violence” in U.S.S.G. § 4B1.2(a)(2).

         A plausible reading after Johnson was that it applied broadly to all defendants sentenced under residual clauses with the same language as ACCA. In Beckles, however, the Supreme Court held that Johnson did not apply to the residual clause of the post-Booker advisory Guidelines, despite the fact that the language of the residual clause in U.S.S.G. § 4B1.2(a)(2) was identical to the language of the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii). The Court in Beckles stressed that the void-for-vagueness doctrine applies to laws that fix the permissible sentences for criminal offenses, and thus does not apply to the advisory Guidelines, which do not fix the permissible range of sentences. The Court's opinion did not mention the pre-Booker mandatory guidelines, and Justice Sotomayor in her concurrence noted that Johnson's application to the pre-Booker guidelines remained an open question. See Beckles v. United States, 137 S.Ct. 886, 903 n.4 (2017) (“The Court's adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in [Booker] - that is, during the period in which the Guidelines did “fix the permissible range of sentences, ”- may mount vagueness attacks on their sentences. That question is not presented by this case and I, like the majority, take no position on its appropriate resolution.”) (Sotomayor, J., concurring in the judgment).

         While Beckles narrowed the area of plausible dispute, the parties continue to disagree as to how broadly this court should read Johnson. The question ultimately faced by this court is over the correct interpretation of “right” in § 2255(f)(3), and the parties' dispute over that question is substantially similar to the one so clearly articulated by the court in Mitchell v. United States, 2017 WL 2275092 (W.D. Va. 2017):

The parties dispute the meaning of “right” under § 2255(f)(3) and its application to Johnson II. [The defendant] posits a broader definition of “right” more analogous to the reasoning of a case, such that the right newly announced in Johnson II was that no individual could face a fixed criminal sentence on the basis of vague language identical to that in the residual clause of the ACCA. Under this view, [the defendant] is merely seeking an application of that right to his own circumstances. The Government argues that a “right” more resembles the holding of a case, and thus that Johnson II affords relief under ยง 2255(f)(3) only to those individuals who were sentenced under the residual clause of the ACCA itself. According to this logic, [the defendant] is ...

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