United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Howard Baker filed a petition for writ of habeas corpus under
28 U.S.C. §2241 (Doc. 1) challenging the enhancement of
his sentence as a career offender under U.S.S.G. §
4B1.1. He purports to rely on Mathis v. United
States, 136 S.Ct. 2243 (2016). Now before the Court is
Respondent's Motion to Dismiss, Doc. 11. Petitioner
responded to the motion at Doc. 13.
argues that the petition must be dismissed because an
incorrect application of an advisory Sentencing Guideline is
not a miscarriage of justice that can be remedied in a
Facts and Procedural History
was convicted of possession with intent to distribute 5 grams
or more of a substance containing cocaine base (“crack
cocaine”) in the Central District of Illinois.
United States v. Baker, Case No. 09-cr-20055-MPM. On
February 16, 2010, he was sentenced to 360 months
imprisonment. The sentencing judge found that he was a career
offender based on two prior Illinois convictions for unlawful
delivery of controlled substances. Case No. 09-cr-20055- MPM,
Transcript of Sentencing Hearing, Doc. 65, p.9.
filed a direct appeal. As is relevant here, he argued that
his 360 month sentence was unreasonable. The Seventh Circuit
disagreed, noting that the career offender enhancement was
“properly applied and not challenged during the
sentencing hearing or on appeal.” United States v.
Baker, 655 F.3d 677, 683 (7th Cir. 2011). The court also
observed that Baker “has made a lifelong career out of
drug dealing.” Ibid.
filed a motion under 28 U.S.C. § 2255 arguing
ineffective assistance of counsel. In part, he alleged that
his counsel had failed to challenge the government's
evidence of his two prior drug convictions. Judge McCuskey
denied the motion, noting that petitioner had admitted the
two convictions at the sentencing hearing. Baker v.
United States, 12-cv-2221-MPM, Doc. 9, p. 11.
unsuccessfully sought permission from the Seventh Circuit to
file successive § 2255 motions based on Johnson v.
United States, 135 S.Ct. 2551 (2015), and Mathis v.
United States, 136 S.Ct. 2243 (2016). Seventh Circuit,
Docket Nos. 16-2422 and 17-2067.
relying on Mathis v. United States, 136 S.Ct. 2243
(2016), Baker argues that his two prior convictions for drug
offenses under Illinois law do not qualify as controlled
substance offenses for purposes of the career offender
enhancement under U.S.S.G. § 4B1.1. This argument would
likely fail under United States v. Redden, 875 F.3d
374 (7th Cir. 2017), holding that a conviction for violation
of 720 ILCS 570/401 is a “controlled substance
offense” for purposes of the career offender Guideline.
“Any conduct meeting the state's definition of
‘delivery' comes within § 4B1.2(b) because
‘transfer' is just another word for distribute or
dispense.” Redden, 875 F.3d at 375. However,
it is unnecessary to decide the substantive merits of his
argument because petitioner cannot not bring a
Mathis claim in a § 2241 petition.
are some errors that can be raised on direct appeal but not
in a collateral attack such as a § 2255 motion or a
§ 2241 petition. A claim that a defendant was
erroneously treated as a career offender under the advisory
Sentencing Guidelines is one such claim. Hawkins v.
United States, 706 F.3d 820 (7th Cir. 2013),
supplemented on denial of rehearing, 724 F.3d 915 (7th Cir.
2013). See also, United States v. Coleman, 763 F.3d
706, 708-09 (7th Cir. 2014)(“[W]e held in
Hawkins that the error in calculating the Guidelines
range did not constitute a miscarriage of justice for §
2255 purposes given the advisory nature of the Guidelines and
the district court's determination that the sentence was
appropriate and that it did not exceed the statutory
argues that Hawkins does not bar his claim because
he was sentenced under a mandatory Guideline. He is
incorrect. The Seventh Circuit recently reiterated that the
Sentencing Guidelines have been advisory and not mandatory
ever since the Supreme Court decided United States v.
Booker, 125 S.Ct. 738 (2005). Perry v. United
States, __F.3d__, 2017 WL 6379634 (7th Cir. Dec. 14,
2017). Petitioner was sentenced in 2010, long after
Booker was decided. Judge McCuskey's remarks at
sentencing make it clear that he understood that the
Guidelines were advisory. Case No. 09-cr-20055-MPM,
Transcript of Sentencing Hearing, Doc. 65, pp. 13-15.
cites Narvaez v. United States, 674 F.3d 621, 628
(7th Cir. 2011), and Brown v. Caraway, 719 F.3d 583,
588 (7th Cir. 2013). Those cases are of no help to him
because the petitioners in those cases were sentenced under
the pre-Booker mandatory Guidelines. His citations
to Hill v. Werlinger, 695 F.3d 644 (7th Cir. 2012),
and Brown v. Rios, 696 F.3d 638 (7th Cir. 2012), are
not applicable because the petitioners in those cases were
sentenced under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), not the career offender Guideline.
foregoing reasons, Respondent's Motion to Dismiss ...