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United States v. Davis

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

April 27, 2018

UNITED STATES of America,
v.
ARTHUR DAVIS.

          MEMORANDUM OPINION AND ORDER

          Hon. Virginia M. Kendall, United States District Judge

         Petitioner Arthur Davis moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 based on Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). (Dkt. No. 1.) Johnson declared the residual clause of the “violent felony” prong of 18 U.S.C. § 924(e) unconstitutionally vague and Welch held that Johnson applies retroactively on collateral review. Davis urges resentencing arguing that five of his seven Illinois convictions for burglary (three separate counts), armed robbery, and aggravated battery do not qualify after Johnson and Welch and so his mandatory 180-month sentence is illegal because he does not have the requisite three prior felony convictions needed to apply the mandatory 180-month sentence under § 924(e)(1). Upon review of the pleadings, the Court denies Davis' motion for the following reasons. [1.]

         BACKGROUND

         Davis pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In the plea agreement the parties agreed that Davis was subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), which subjected Davis to a mandatory minimum sentence of 180 months. See United States v. Davis, No. 08 CR 541, Dkt. No. 20, at 4 (N.D. Ill. 2009); 18 U.S.C. § 924(e)(1).[1]The Probation Officer agreed that Davis qualified as an armed career criminal, and identified the following convictions that apply for the purposes of § 924(e):

1. A June 4, 1980 conviction for burglary in Illinois;
2. A June 4, 1980 conviction for burglary in Illinois (separate from the first);
3. An April 26, 1982 conviction for burglary in Illinois;
4. An October 10, 1986 conviction for armed robbery in Illinois;
5. A July 23, 1992 guilty plea to possession of a controlled substance with intent to deliver in Illinois;
6. A July 23, 1992 guilty plea to aggravated battery in Illinois, and;
7. An April 30, 1996 guilty plea to possession of a controlled substance with intent to distribute in Illinois.[2]

         Davis stipulated as to having been convicted of each of the aforementioned offenses. (Id. at 5-8.) On September 10, 2009, the Court sentenced Davis to the mandatory minimum of 180-months imprisonment pursuant to § 924(e). See Davis, 08 CR 541, Dkt. No. 27. Davis did not file a direct appeal on his conviction, the length of his sentence, the manner in which the sentence was calculated, or the use of any prior convictions to calculate his guidelines range or to determine his status as an armed career criminal.

         Davis now argues that the predicate burglary, armed robbery, and aggravated battery convictions are inapplicable to § 924(e) and that the mandatory minimum sentence of 180-months is illegal in light of Johnson, Welch, and Descamps v. United States, 57 U.S. 254, 258 (2013) (prohibiting the use of the modified categorical approach when the crime for which the defendant was convicted has a single, indivisible set of elements). The Government does not oppose Davis' argument regarding the burglary convictions, but argues that the drug offense, the aggravated battery, and the armed robbery convictions still qualify Davis as having three predicate offenses; thus maintaining his status as an armed career criminal for the purpose of § 924(e). (Dkt. No. 19, at 5.)

         LEGAL ...


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