United States District Court, C.D. Illinois, Springfield Division
VICTON Y. BETHEL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RICHARD MILLS UNITED STATES DISTRICT JUDGE
August 24, 2015, Petitioner Victon Y. Bethel filed a motion
to vacate, set aside or correct his sentence under 28 U.S.C.
the motion was denied.
before the Court is the Petitioner's motion for
August 27, 2015, the Court entered an Opinion denying the
motion. On September 16, 2015, the Petitioner filed a motion
for reconsideration, claiming he is entitled to relief under
Johnson v. United States, 135 S.Ct. 2551 (2015). On
October 13, 2015, the Court appointed the Federal Public
Defender to assist the Petitioner in determining if he may
qualify for habeas relief. At the time, it was uncertain
whether the rule in Johnson addressing certain
language in a statute would be extended to the guidelines.
The Parties filed briefs pertaining to the issues raised in
the motion for reconsideration.
the Government did not contest the Petitioner's claim
that Johnson applies to the guidelines. The
Government instead contended Johnson is not
retroactively applicable to guidelines cases on collateral
review and, further, that Petitioner had waived his right to
file a § 2255 motion and also procedurally defaulted his
claim because he had failed to challenge his career offender
designation on direct appeal.
thereafter, the United States Supreme Court decided
Beckles v. United States, 137 S.Ct. 886 (2017). The
Court concludes that the Petitioner's habeas claim is
foreclosed by Beckles, wherein the Court held that
the advisory sentencing guidelines are not amenable to
vagueness challenges. See id. at 892.
March 25, 2008, the Petitioner was determined to be a career
offender and sentenced to 168 months imprisonment. See
United States v. Victon Y. Bethel, No. 07-30080. In his
motion, he sought to challenge his sentence under
Johnson, wherein the United States Supreme Court
held that the residual clause of the Armed Career Criminal
Act is unconstitutionally vague. The Seventh Circuit later
held that because Johnson announced a new
substantive rule of constitutional law, it has retroactive
application to cases on collateral review. See Price v.
United States, 795 F.3d 731, 734 (7th Cir. 2015).
Petitioner was sentenced under the post-Booker
advisory guidelines scheme. At sentencing, the Petitioner was
determined to be a career offender based on a prior felony
drug conviction and a felony aggravated battery conviction.
The Petitioner's presentence investigation report relied
on two previous convictions in determining he qualified as a
career offender under U.S.S.G. § 4B1.1. One was an
aggravated battery conviction from Morgan County, Illinois,
Case Number 98-CF-128. The aggravated battery conviction was
determined to be a qualifying conviction for the career
offender guideline pursuant to U.S.S.G. § 4B1.2(a),
which defines “crime of violence.” In this
supplemental memorandum, the Petitioner contends that the
determination his prior conviction for aggravated battery
involved conduct that presented a serious potential risk of
physical injury to another amounts to an unconstitutionally
Johnson, the United States Supreme Court held that
“imposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process.”
Id. at 2563. This Court appointed counsel based on
the possibility that the Petitioner's sentence may be
incompatible with Johnson, which the Seventh Circuit
determined to be a new rule of constitutional law. See
Price, 795 F.3d at 734. In 2017, however, the United
States Supreme Court held that the advisory Guidelines are
not subject to vagueness challenges under the Due Process
Clause. See Beckles, 137 S.Ct. at 890. Unlike the
statute that was before the Court in Johnson,
advisory guidelines “do not fix the permissible range
of sentences” but “merely guide the exercise of a
court's discretion in choosing an appropriate sentence
within the statutory range.” Id. at 892.
Accordingly, the rule in Johnson does not apply to
the guidelines. See id.
was decided by the Supreme Court on March 6, 2017. Prior to
that decision, the Seventh Circuit held in United States
v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) that vagueness
challenges against the guidelines were permissible. See
id. at 725. The Supreme Court then in Beckles
overturned Hurlburt. See United States v.
Cook, 850 F.3d 328, 333 (7th Cir. 2017) (“This
week, the Supreme Court overturned that decision, holding
that ‘the Guidelines are not subject to a vagueness
challenge under the Due Process Clause.'”).
Accordingly, the rule in Beckles forecloses the
Petitioner's vagueness challenge.
Petitioner's § 2255 motion depends entirely on the
premise that the advisory Guidelines may be attacked as
unconstitutionally vague. However, the Supreme Court has now
determined that the reasoning of Johnson does not
extend to the career offender guideline's residual clause
(or any other allegedly vague guideline provision).
Therefore, the determination that Petitioner's aggravated
battery conviction involved conduct that ...