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United States v. Revis

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

January 16, 2018

UNITED STATES OF AMERICA Petitioner,
v.
DAVID REVIS, Respondent.

          MEMORANDUM OPINION AND ORDER

          HON. JORGE ALONSO United States District Judge

         David Revis has filed a motion for relief pursuant to 28 U.S.C. § 2255 to vacate or correct his sentence based on the U.S. Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). For the reasons set forth below, the Court denies the motion [1].

         BACKGROUND

         In November 2012, David Revis was arrested in connection with a string of armed robberies targeting retail stores and businesses in and around Chicago. On September 23, 2014, Revis pleaded guilty to one count of conspiracy to commit robbery affecting commerce in violation of 18 U.S.C. § 1951(a) and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) and 924(e), pursuant to a written plea agreement in case number 12 CR 853-3. Revis' plea agreement, as well as his presentence investigation report (“PSR”), identified Revis as an “armed career criminal” pursuant to 18 U.S.C. § 924(e), also known as the Armed Career Criminal Act (“ACCA”). Both the plea agreement and PSR listed seven prior criminal convictions for Revis. These convictions included a 1997 juvenile adjudication for aggravated battery, a 1998 conviction for delivery of a controlled substance, and a 2002 conviction for robbery.

         On January 13, 2015, Revis was sentenced to a concurrent term of 180 months' imprisonment, which is the mandatory minimum sentence under the ACCA. During the sentencing hearing, Revis did not dispute any facts regarding his criminal history or his status as an armed career criminal. Revis did not directly appeal his sentence.

         Revis has filed a Section 2255 motion to vacate or correct his sentence based on the Supreme Court's decisions in Johnson, 135 S.Ct. 2551, and Welch, 136 S.Ct. 1257. In Johnson, the Supreme Court invalidated a portion of the ACCA-the so-called “residual clause”- due to vagueness. 135 S.Ct. at 2560. In Welch, the Supreme Court found that Johnson's holding applied retroactively to cases on collateral review. 136 S.Ct. 1257; see also 28 U.S.C. § 2255(f)(3). In light of these cases, Revis argues that he no longer has three predicate convictions to be deemed an armed career criminal under the ACCA. The government disagrees, arguing that Revis' petition is untimely and that he still has at least three prior convictions that trigger the ACCA's mandatory minimum sentence.

         LEGAL STANDARD

         A federal prisoner may move to correct a sentence on “the ground that the sentence was imposed in violation of the Constitution or laws of the United States. . .or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013); see also Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996).

         DISCUSSION

         The ACCA imposes a mandatory minimum sentence of 15 years on a defendant who possesses a firearm and who has three previous convictions “for a violent felony or serious drug offense.” 18 U.S.C. § 924(e)(1); see also 18 U.S.C. § 922(g). The Act defines “violent felony” as:

. . .any crime punishable by imprisonment for a term exceeding one year. . .that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. . .

18 U.S.C. § 924(e)(2)(B) (emphasis added). The second half of subsection (ii), which begins with “otherwise, ” is a catch-all phrase commonly referred to as the “residual clause.” In Johnson, the Supreme Court invalidated the residual clause as unconstitutionally vague. 135 S.Ct. 2551, 2560-63 (2015). Johnson did not invalidate or otherwise affect subsection (i), known as the “elements clause, ” or the remaining language in subsection (ii), known as the “enumerated offenses clause.” Id. at 2563 (“Today's decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.”). Johnson also does not ...


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