United States District Court, C.D. Illinois
BRANDON J. THOMAS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE
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.
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).
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
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.
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 ¶
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).
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).
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).
asks the Court to review his sentence in light of Johnson
v. United States, __ U.S. __, 135 S.Ct. 2551 (2015).
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.
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). Therefore, the increase in Thomas'
offense level due to the Guidelines' ...