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Thomas v. United States

United States District Court, C.D. Illinois

March 1, 2018

BRANDON J. THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE

         This matter comes before the Court for a Report and Recommendation on Petitioner Brandon J. Thomas' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition). For the reasons set forth below, this Court recommends that Thomas' Petition should be DENIED.

         STATEMENT OF FACTS

         On August 13, 2012, Thomas robbed a federally insured credit union. On September 19, 2012, a grand jury indicted Thomas on three counts in connection with that armed robbery. The grand jury indicted Thomas with armed robbery of a federally insured credit union, in violation of 18 U.S.C. § 2113(a) and (d) (Count 1); felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count 2); and brandishing a firearm during a violent crime, in violation of 18 U.S.C. § 924(c). United States v. Thomas, C.D. Ill. Case No. 12-CR-20062, Indictment (Case No. 12-20062 d/e 9) (filed in this case at d/e 2).

         Thomas pleaded guilty to all three charges pursuant to a plea agreement. As part of the plea agreement, Thomas agreed to waive his rights to direct appeal and collateral attack. United States v. Thomas, C.D. Ill. Case No. 12-CR-20062, Plea Agreement (Case No. 12-20062 d/e 34).

         The United States Probation Office prepared a Presentence Investigation Report (Case No. 12-20062 d/e 41) (“PSR”). The PSR stated that Thomas qualified as a Career Offender under § 4B1.1(a) of the United States Sentencing Guidelines (Guidelines). Thomas qualified as a Career Offender because the armed robbery conviction in Count 1 was a crime of violence and he had three prior felony convictions for crimes of violence or for controlled substance offenses. Thomas had three prior Illinois state convictions for robbery, aggravated discharge of a firearm, and armed robbery. As a Career Offender, his offense level for sentencing purposes on Counts 1 and 2 increased from 24 to 34. PSR, at 7 ¶ 27.

         Thomas also qualified as an Armed Career Criminal because the brandishing conviction in Count 3 violated 28 U.S.C. § 922(g) and he had the three prior state felony convictions for violent felonies. Id. PSR, at 7 ¶¶ 27-28; 18 U.S.C. § 924(e)(1). As an Armed Career Criminal, his offense level for sentencing purposes on Counts 1 and 2 increased from 24 to 34. PSR, at 7 ¶ 28.

         Under either his Career Offender status or his Armed Career Criminal status, Thomas' Guidelines offense level for Counts 1 and 2 increased from 24 to 34. Thomas' conviction in Count 3 carried a statutorily mandated sentence of at least 7 years to run consecutively to all other sentences on all other counts. PSR, at 7 ¶ 32; 18 U.S.C. § 924(c)(1)(A)(ii).

         After consideration of Thomas' acceptance of responsibility in his guilty plea and other relevant factors, Thomas had a sentencing guideline range of 188-235 months for Count 1 and 2. PSR, at 17 ¶ 72. The Guideline range for Count 3 was 84 months, to run consecutive to the other sentences. PSR, at 17 ¶ 73. On January 5, 2015, the Court adopted the findings of the PSR and sentenced Thomas to 188 months on each of Counts 1 and 2, to run concurrently, and 84 months on Count 3 to run consecutively to the other two sentences, for a total sentence of 272 months. Minute Entry entered January 5, 2015; Judgment in a Criminal Case (Case No. 12-20062 d/e 44) (filed in this case at d/e 2).

         On May 28, 2015, the Court granted the government's motion under Federal Rule of Criminal Procedure 35(b) to reduce Thomas' sentence on Count 3 from 84 months to 20 months, thereby reducing the total sentence to 208 months. Amended Judgment in a Criminal Case (Case No. 12-20062 d/e 54) (a copy is filed in this case at d/e 2).

         Thomas asks the Court to review his sentence in light of Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015).

         ANALYSIS

         Assuming arguendo that Thomas may bring this Petition, the Court sees no merit to the Petition. Thomas seeks review because the Supreme Court determined that the residuary clause within the definition of “violent felony” in Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was void for vagueness. Johnson, 135 S.Ct. at 2557-58. The Johnson decision applies retroactively on collateral review. Welch v. United States, __ U.S.__, 136 S.Ct. 1357, 1268 (2016). Thomas asks the Court to determine whether the increase in his offense level from 24 to 34, and the resulting increase in his sentence, was based on the unconstitutionally vague residuary clause in the Armed Career Criminal Act.

         The unconstitutional residuary clause within § 924(e)(2)(B)(ii) did not affect the length of Thomas' sentence. The Court adopted the findings of the PSR. The Court, therefore, found that Thomas qualified for a Guidelines sentencing range of 188-235 months because both the Armed Career Criminal Act § 924(e) and the Guidelines Career Offender provision § 4B1.1(a) applied to his case. The definition of “crime of violence” in the Guideline's Career Offender provisions also has a residuary clause. Guidelines §4B1.2(a)(2). The §4B1.2(a)(2) residuary clause in the advisory Guidelines, however, is constitutional. Beckles v. United States, __ U.S.__, 137 S.Ct. 886, 894 (2017); see United States v. Booker, 543 U.S. 220 (2005) (holding that the Guidelines are advisory only).[1] Therefore, the increase in Thomas' offense level due to the Guidelines' ...


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