Hughes v. United States

          MEMORANDUM AND ORDER

          Herndon, United States District Judge.

         Now before the Court is Petitioner Hughes' (“Hughes”) August 7, 2017 motion to reconsider pursuant to Rule 59(e) (doc. 11). Hughes moves the Court to reconsider its June 21, 2017 Memorandum and Order (doc. 8) and judgment (doc. 9) denying his 28 U.S.C. § 2255 petition, alleging ineffective assistance of counsel based on failure to object to a sentence enhancement based on Hughes' prior § 856 conviction, and to enter a new Judgment order designating a sentence of 84 months. Based on the following, the Court denies the motion.

         A. Legal Standard

         There are two ways in which a Court may analyze a motion filed after judgment has been entered either under Rule 59(e) or under Rule 60(b) of the Federal Rules of Civil Procedure. Where a substantive motion is filed within twenty-eight days of entry of judgment or order, the Court will generally construe it as a motion pursuant to Rule 59(e); later motions will be construed as pursuant to Rule 60(b). Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992). Here, although filed outside the 28 day window from when the Order and judgment dismissing his case was entered, the Court considered Hughes' motion as timely filed due to his being in transit between prisons when the June 21, 2017 Order was entered. See doc. 26. Thus, the Court analyzes his motion under Rule 59(e).

         Although both Rules 59(e) and 60(b) have similar goals of erasing the finality of a judgment and permitting further proceedings, Rule 59(e) generally requires a lower threshold of proof than does Rule 60(b). See Helm v. Resolution Trust Corp., 43 F.3d 1163, 1166 (7th Cir. 1995); see also Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (distinguishing the “exacting standard” of Rule 60(b) from the “more liberal standard” of Rule 59(e)). The purpose of a motion to alter or amend judgment under Rule 59(e) is to ask the court to reconsider matters “properly encompassed in a decision on the merits.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). “A Rule 59(e) motion will be successful only where the movant clearly establishes: (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (citation and quotation marks omitted). A manifest error “is not demonstrated by the disappointment of the losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and quotation marks omitted). Furthermore, relief pursuant to a Rule 59(e) motion to alter or amend is an “extraordinary remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).

         To support his motion, Hughes points out two alleged legal errors made by the Court, however both focus on United States Sentencing Guideline (“USSG”) § 4B1.2: 1. Improper use of treating Sentencing Guideline Application Notes as something to be “applied, ” and 2. That use of Application Note 1 of USSG § 4B1.2 violates the categorical approach laid out in Mathis v. United States, 136 S.Ct.2243 (2016). Hughes does not address any errors or relate any arguments pertaining to the use of his 2010 violation of 21 U.S.C. § 856(a)(1) as a “felony drug offense” predicate for purposes of enhanced sentencing under 21 U.S.C. 841(b)(1)^[1]. Accordingly, the Court will focus its review on use of Hughes' prior § 856 offense as a “controlled substance offense” within the meaning of the career offender guideline.

         B. Analysis

         1. The Categorical Approach

         In its Order denying Hughes' § 2255 (doc. 8), the Court repudiated Hughes' argument that under the “modified categorical approach, ” his § 856 conviction is not a controlled substance offense within the meaning of the career offender guideline. Indeed, the Court found that Hughes' previous § 856 conviction fit squarely within § 4B1.2's definition of “controlled dangerous substance offense.” Doc. 8 at 3 (emphasis added). Hughes' insistence on application of this approach in his motion to reconsider has not only led the Court to reaffirm its decision regarding classification of the § 856 conviction, but also consider new arguments brought to light by the government; specifically, that the categorical approach need not even apply to Hughes' case. For the reasons stated below, the Court agrees.

         Hughes argues that under the categorical approach refined in Mathis, courts focus on whether the elements of the crime of conviction, here violation of § 856, sufficiently match the elements of a controlled substance offense, while ignoring the particular facts of the case (doc. 11 at 2-3). The predicate offense cannot qualify if its elements are broader than those of the generic offense. Here, Hughes argues that § 856 provides alternative means of violating the statute that go beyond the definition of “controlled substance offense” as defined in § 4B1.2, so consequently, cannot serve as a predicate offense for use in determining career offender status. Id. at 5. In response, the government contends that the categorical approach simply does not apply to Hughes' case to determine if the prior § 856 conviction qualifies as a “controlled substance offense, ” because the Sentencing Commission has already made that determination favorably within its Application Notes (doc. 31 at 9).

         As the Court noted in its Order denying the § 2255 petition, the Sentencing Commission defines “controlled substance offense” in § 4B1.2(b) as:

[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense a controlled substance.

Doc. 8 at n. 1; U.S.S.G. 4B1.2

         Application note 1 to § ...