United States District Court, C.D. Illinois, Peoria Division
ALEJANDRO M. LOPEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER AND OPINION
E. SHADID, UNITED STATES DISTRICT JUDGE
cause is before the Court on Petitioner Alejandro M.
Lopez's Motion to Vacate, Set Aside or Correct Sentence
Under 28 U.S.C. § 2255 (Doc. 1). A hearing on the Motion is
not required because “the motion, files, and records of
the case conclusively show that the prisoner is entitled to
no relief.” Hutchings v. United States, 618
F.3d 693, 699-700 (7th Cir. 2010) (quotation omitted).
Because Petitioner is not entitled to relief, the § 2255
motion is DENIED.
March 2016, Lopez was charged with possession with intent to
distribute a mixture containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) (Count 1); and distribution of a
mixture and substance containing methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)
(Count 2). R. 1.
21, 2016, Lopez entered a guilty plea to both counts of the
Indictment without a plea agreement. See R. July 21,
2016 Minute Entry. At the change of plea hearing, Lopez was
placed under oath. Plea Tr., R. 21 at 1. He acknowledged that
he had received a copy of the indictment, had reviewed it
with his counsel, and was “very” satisfied with
his counsel. Id. at 4. The Court read the charges
and the potential penalties pursuant to the statute, and
Lopez stated he understood them. Id. at 5-8. The
Court also explained the constitutional rights that Lopez
would be waiving by pleading guilty. Id. at 8-9. The
Government then stated the factual basis for the plea, and
Lopez acknowledged that the facts were correct. Id.
counsel advised the Court that he had discussed the
sentencing guidelines and their application to Lopez, and
estimated that “Mr. Lopez is almost certainly going to
be considered a career offender under the guidelines and will
face a range of 188 to 235 months imprisonment.” Plea
Tr., R. 21 at 12.
proceeded to plead guilty to Counts 1 and 2 of the
Indictment. Id. at 15. The Court accepted the plea:
I find that you're fully competent and capable of
entering an informed plea; that you're aware of the
nature of the charges and the consequences of the plea.
That the plea of guilty as to each count is a knowing and
voluntary plea supported by an independent basis in fact
containing each of the essential elements of the offense.
The plea is, therefore, accepted. You are now adjudged guilty
of that offense.
United States Probation Office prepared a Presentence
Investigation Report (“PSR”). PSR, R.10. The PSR
concluded that Lopez qualified as a career offender under the
sentencing guidelines. PSR, R.10 at ¶ 28. A defendant is
subject to the career sentencing enhancement if he has
“at least two prior felony convictions of either a
crime of violence or a controlled substances offense.”
See U.S.S.G. § 4B1.1(a). Here, the PSR
concluded that Lopez had three qualifying offenses: (1) a
2009 Illinois aggravated battery conviction; (2) a 2010
Illinois methamphetamine manufacturing conviction; and (2) a
2014 Illinois aggravated battery conviction. Id. at
¶¶ 37, 39, 42. The PSR calculated Lopez's
advisory guidelines range as 151 to 188 months'
imprisonment. Id. at ¶ 89.
sentencing hearing on December 1, 2016, defense counsel
argued that Lopez's aggravated battery convictions did
not qualify as crimes of violence, and, therefore, Lopez
should not be sentenced as a career offender. Sent. Tr., R.
22, 3-7, 13-15. The Court overruled the objection and found
that “the current state of law in the Seventh Circuit
would find that these are crimes of violence.”
Id. at 15. The Court sentenced Lopez to 151
months' imprisonment on each count to be served
concurrently, 3 years of supervised release, no fine, and a
$200 special assessment. Id. at 34-38; Judgment, R.
appealed his sentence, arguing he should not have been
classified as a career offender because Illinois aggravated
battery is not a crime of violence for purposes of U.S.S.G.
§ 4B1.1. United States v. Lopez, 692 Fed.Appx.
302 (7th Cir. 2017). While his appeal was pending, the
Seventh Circuit held in United States v. Lynn, 851
F.3d 786 (7th Cir. 2017), that the Illinois aggravated
battery statute was divisible. Citing Lynn, the
Seventh Circuit found that because Lopez was charged with
aggravated battery because he ...