United States District Court, C.D. Illinois, Springfield Division
Richard Mills United States District Judge
is Petitioner Giovonni Thomas's motion to vacate, set
aside or correct his sentence under 28 U.S.C. §2255.
motion is without merit.
Petitioner pled guilty to Possession of Cocaine with Intent
to Distribute, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C) (Count I); Possession of a Firearm in Furtherance
of a Drug Trafficking Crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i) (Count II); and Felon in Possession of a
Firearm, in violation of 18 U.S.C. § 922(g)(1) (Count
III). See United States v. Giovonni Thomas, Case
September 16, 2011, the Petitioner was sentenced to a total
imprisonment term of 192 months, consisting of 132 months as
to Count I and 120 months as to Count III, to run
concurrently, and 60 months as to Count II, to run
consecutively to the terms in Counts I and III. The
Petitioner was sentenced under the post-Booker
advisory Guidelines scheme.
sentencing, the Petitioner was classified as a career
offender, based on prior convictions for crimes of violence
which included attempted armed robbery, Sangamon County
Circuit Court, Case Number 02-CF-300, and aggravated
fleeing/eluding, Sangamon County Circuit Court, Case Number
04-CF-765. The aggravated fleeing/eluding conviction was
determined to qualify as a crime of violence based on the
residual clause of U.S.S.G. § 4B1.2(a), the career
Petitioner did not file a direct appeal of his sentence. He
has not previously filed a motion to vacate his sentence
under 28 U.S.C. § 2255.
14, 2015, the Petitioner filed a motion for appointment of
counsel, wherein he requested assistance to challenge his
career offender status based on a recent Supreme Court
decision. See United States v. Thomas, Case Number
10-30046 [Doc. No. 28]. The Court granted [Doc. No. 29] the
motion and appointed the Federal Public Defender to assist
the Petitioner in determining whether he is entitled to
relief under Johnson v. United States, 135 S.Ct.
2551 (2015), wherein the United States Supreme Court held
that the residual clause of the Armed Career Criminal Act
(ACCA) is unconstitutionally vague.
Seventh Circuit later held that Johnson announced a
new substantive rule of constitutional law, which the Supreme
Court has made retroactive to final convictions. See
Price v. United States, 795 F.3d 731, 734 (7th Cir.
Petitioner's motion to vacate sentence was filed on
February 24, 2016. The Government filed a response and the
Petitioner filed a reply. Subsequently, the Petitioner sought
leave to file a pro se response.
Petitioner contends that he should not have been sentenced as
a career offender. If the Petitioner had not qualified as a
career offender, his guideline range would have been
Supreme Court's holding in Johnson that the
residual clause of the ACCA is unconstitutionally vague did
not address the identically worded residual clause of the
career offender guideline. At the time the Petitioner filed
his motion, therefore, it was uncertain whether the same rule
would apply to those who ...