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Thomas v. United States

United States District Court, C.D. Illinois, Springfield Division

June 26, 2018

GIOVONNI THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          Richard Mills United States District Judge

         Pending is Petitioner Giovonni Thomas's motion to vacate, set aside or correct his sentence under 28 U.S.C. §2255.

         Petitioner's motion is without merit.

         I.

         The 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 Number 10-30046.

         On 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.

         At 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 offender guideline.

         The 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.

         On July 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.

         The 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. 2015).

         The 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.

         The 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 significantly lower.

         II

         The 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 ...


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