United States District Court, C.D. Illinois, Urbana Division
MYERSCOUGH, UNITED STATES DISTRICT JUDGE
cause is before the Court on Petitioner Daniel Kelly's
Motion to Vacate, Set Aside, or Correct Sentence Under 28
U.S.C. § 2255 (Doc. 1) and Amended Motion (Doc. 3). 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 and Amended Motion are DENIED.
2010, a federal grand jury charged Petitioner with
Distribution of 5 Grams or More of Cocaine Base Crack in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
See United States v. Kelly, United States District
Court, Central District of Illinois, Urbana Division, No.
10-cr-20038-2 (hereinafter, Crim.), Indictment (d/e 7).
pleaded guilty pursuant to a plea agreement in March 2011.
See Crim., Plea Agreement (d/e 28); PSR (d/e 59).
The parties, as well as the Presentence Investigation Report
(PSR) prepared by the United States Probation Office,
determined that Petitioner qualified as a career offender
under § 4B1.1 of the advisory Sentencing Guidelines
based on three prior Illinois felony convictions: (1)
Reckless Discharge of a Firearm in violation of 720 ILCS
5/24-1.5; (2) Aggravated Battery in violation of 720 ILCS
5/12-4(b)(8); and (3) Aggravated Robbery in violation of 720
ILCS 5/18-1(b). See Crim., Plea Agreement at
¶17 (d/e 28); PSR at ¶25 (d/e 59). Based on this
finding, both the Plea Agreement and PSR concluded that
Petitioner faced an advisory guideline sentencing range of
188 to 235 months of imprisonment. See Crim., Plea
Agreement at ¶19 (d/e 28); PSR at ¶67 (d/e 59).
Petitioner entered into a Plea Agreement with the Government
pursuant to Federal Rule of Civil Procedure 11(c)(1)(C),
whereby both parties agreed that the appropriate sentence was
188 months, the low-end guideline sentence. Crim., Plea
Agreement at ¶20 (d/e 28).
Sentencing Hearing on July 8, 2011, Judge Michael P. McCuskey
sentenced Petitioner to the agreed 188-month term of
imprisonment, along with four years of supervised release.
See Crim., Judgment (d/e 68).
had reserved his right to appeal a decision by the district
court holding that the Fair Sentencing Act
(“FSA”) of 2010 was not retroactive and,
therefore, did not apply to his case. Crim., Plea Agreement
at ¶¶3, 23 (d/e 28). Petitioner filed a timely
Notice of Appeal on this issue. While his appeal was pending,
the Supreme Court held in Dorsey v. United States,
567 U.S. 260, 132 S.Ct. 2321 (2012), that the FSA did apply
to offenders, such as Petitioner, whose crimes preceded the
effective date of the FSA, but who were sentenced after that
date. The Seventh Circuit vacated Petitioner's conviction
and ordered resentencing consistent with Dorsey and
the FSA. Crim., Mandate (d/e 93).
remand, the parties filed a Joint Motion to Amend the Plea
Agreement, requesting that the Court impose an agreed
sentence of 151 months' imprisonment-the low-end
guideline sentence after the FSA. Crim., Motion (d/e 96). In
January 2013, Judge McCuskey granted the motion and
resentenced Petitioner to 151 months of imprisonment, to be
followed by a three-year term of supervised release. Crim.,
Amended Judgment (d/e 99).
April 27, 2016, Petitioner filed this Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C § 2255 (Doc.
1). As further explained in his Amended Motion (Doc. 3),
Petitioner seeks to challenge his sentence under Johnson
v. United States, 135 S.Ct. 2551 (2015), which held that
the residual clause of the Armed Career Criminal Act is
unconstitutionally vague. 135 S.Ct. at 2563; 18 U.S.C. §
924(e)(2)(B)(ii) (the ACCA “residual clause”)
(defining the term “violent felony” to include
“conduct that presents a serious potential risk of
physical injury to another”).
argues that, after Johnson, the identically worded
residual clause of the sentencing guidelines, §
4B1.2(a)(2), is also unconstitutionally vague. Accordingly,
because his designation as a career offender relied on the
finding that his conviction for Reckless Discharge of a
Firearm was a crime of violence under the sentencing
guidelines' residual clause, he argues he should not have
been sentenced as a career offender. The Government filed its
response (Doc. 8) on July 8, 2016, and Petitioner filed his
reply (Doc. 9) on August 1, 2016.
August 2016, the Seventh Circuit held that Johnson
applied to the advisory guidelines. United States v.
Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (applying
Johnson and holding that the residual clause in
U.S.S.G. § 4B1.2(a)(2) was unconstitutionally vague).
But, on March 6, 2017, the United States Supreme Court
decided Beckles v. United States, holding that the
“advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause” and that the
residual clause in § 4B1.2(a)(2) is not void for
vagueness. 137 S.Ct. 886, 890 (2017) (also abrogating
person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Relief under § 2555 is an extraordinary remedy
because a § 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007).
Petitioner's Johnson claim is foreclosed by the
decision in Beckles. Petitioner challenges his
designation as a career offender based on his prior
conviction of Reckless Discharge of a Firearm to the extent
that it qualified as a crime of violence under the
Guidelines' residual clause. In light of
Beckles, the “advisory Guidelines are not
subject to vagueness challenges under the Due Process
Clause” and the residual clause in § ...