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Oliea v. Kallis

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

August 5, 2019

MARIO OLIEA, Petitioner,
v.
STEVE KALLIS, Warden Respondent.

          ORDER AND OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

         Before the Court is Magistrate Judge Tom Schanzle-Haskins' Report and Recommendation (d/e 8), which recommends denying Petitioner Mario Oliea's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (d/e 1), and Petitioner's Objections to the Report (d/e 11). For the reasons set forth below, the Court OVERRULES Petitioner's Objections (d/e 11), ADOPTS the conclusion of Magistrate Judge Schanzle-Haskins' Report and Recommendation (d/e 8), as modified below, and DISMISSES Petitioner's Petition (d/e 1) pursuant to 28 U.S.C. § 2255(e).

         I. BACKGROUND

         The relevant facts were fully set forth in the “Statement of Facts” section of the Report and Recommendation, which the Court adopts. In 2007, Oliea pled guilty to two counts of possession with intent to distribute a substance containing five or more grams of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). United States v. Oliea, United States District Court, Central District of Illinois, Springfield Division, No. 07-cr-30033 (hereinafter “Crim.”), Notice of Plea (d/e 10).

         Prior to the guilty plea, the Government had filed a Notice pursuant to 18 U.S.C. § 851, which stated that Oliea had two prior felony convictions in Illinois for manufacture/delivery of controlled substances in violation of 720 ILCS 570/401. See Crim., Notice (d/e 9). Specifically, the Notice stated he was convicted of manufacture/delivery of a controlled substance in violation of 720 ILCS 570/401(c)(2), in Sangamon County, Illinois, No. 2002-CF-967, and of manufacture/delivery of a controlled substance within 1000 feet of a church in violation of 720 ILCS 570/407(b)(2) (which addresses violations of 720 ILCS 570/401(d) that are within 1000 feet of a church), in Sangamon County, Illinois, No. 2003-CF-789. Id.; Resp. App. 45, 49 (d/e 3-1). Both of these convictions involved cocaine. See Crim., PSR ¶¶34, 39, (d/e 17). Additionally, not listed on the Notice, Oliea has a second conviction for manufacture/delivery of a controlled substance within 1000 feet of a church in violation of 720 ILCS 570/407(b)(2), in Sangamon County, Illinois, No. 2003-CF-792.

         The Court notes that Oliea claims that the Report and Recommendation “erroneously states and/or implies the Petitioner's second conviction under 720 ILCS 570/401 is for cocaine as opposed to crack cocaine.” Pet. Objs. at 2 (d/e 11). The Report and Recommendation says “[i]n the second case, Oliea delivered less than a gram of substance containing cocaine to a police officer.” R&R at 2 (d/e 8). The Court finds no error in this language, as it was taken directly from the Presentence Investigation Report, as well as the Indictment in his state court case. See Crim., PSR at ¶ 39; Resp. App. 50-51 (d/e 3). Moreover, this fact has no impact on the resolution of this case.

         In light of the § 851 Notice, as well as the weight of the drugs involved, Oliea faced a statutory imprisonment range of 10 years to life imprisonment for each of the two counts. See 21 U.S.C. § § 841(b)(1)(B). Without the § 851 Notice, Oliea would have only been subject to a statutory minimum of 5 years' imprisonment and a maximum of 40 years' imprisonment.

         The U.S. Probation Office prepared a Presentence Investigation Report. Crim., PSR (d/e 17). The PSR found that his two convictions for manufacture/delivery of a controlled substance were “controlled substance offenses” as defined in U.S.S.G. § 4B1.2, making Oliea qualify as a Career Offender pursuant to U.S.S.G. § 4B1.1(a). Id. ¶26. Accordingly, the PSR concluded that his advisory sentencing guideline range was 262 to 327 months' imprisonment. Id. ¶88.

         There were no objections to the PSR, and the Court adopted its findings. See Crim., Oct. 29, 2007 Minute Entry. On October 29, 2007, Oliea was sentenced to 262 months' imprisonment on each count to run concurrently. Id.; Crim., Judgment (d/e 13). He did not appeal his sentence.

         As detailed in the Report and Recommendation, since Oliea's sentencing, there have been a number of revisions to both the Sentencing Guidelines and 21 U.S.C. § 841(b)(1) that reduced the applicable sentencing ranges for offenses involving crack cocaine like Oliea's. R&R at 4-5 (d/e 8). At the time of filing this Petition, Oliea had filed numerous motions to reduce his sentence in light of these changes, but they had all been denied because the Court found that his sentence was based on the finding that he was a Career Offender, not on the quantity of cocaine for which he was held responsible. Id.

         In January 2017, Oliea brought this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. He argues that, in light of Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), the sentencing court incorrectly interpreted the Career Offender Guidelines. Specifically, he argues that under Descamps and Mathis, neither of his two prior Illinois felony convictions for manufacture/delivery of a controlled substance was a “controlled substance offense” under U.S.S.G. § 4B1.1, as defined in § 4B1.2. Oliea also argues his convictions do not qualify as “felony drug offenses” as defined in 21 U.S.C. § 802(44) and, therefore, he should not have received the statutory enhancement under 21 U.S.C. § 841(b)(1)(B).

         Respondent filed his response (d/e 3), and Oliea filed a reply (d/e 6). The petition was then referred to Magistrate Judge Tom Schanzle-Haskins, who has recommended that the Petition be dismissed because Oliea has not shown that there has been a miscarriage of justice. R&R (d/e 8).

         Oliea objected to the Report and Recommendation on four grounds. Pet. Objs. (d/e 11). First, Oliea objects to the description of his second conviction under 720 ILCS 570/401 to the extent it implies it is for cocaine as opposed to crack cocaine, as addressed above. Oliea argues in his second and third objections that the Magistrate Judge's analysis failed to compare 720 ILCS 570/401's “cocaine element” against the federal definition of “cocaine, ” and that the state definition is broader than the federal definition. Finally, as his fourth abjection, Oliea argues the Magistrate Judge was wrong in his conclusion that 720 ILCS 570/401's “cocaine element” “is divisible from any cocaine analog” because “Illinois' definition includes chemically equivalent analogs within a single indivisible definition of cocaine.” Pet. Objs. at 2-5 (d/e 11). Petitioner has also filed two supplemental notices (d/e 15 and 16) seeking to rely on United States v. Elder, 900 F.3d 491 (7th Cir. 2018), and Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018).

         Since briefing concluded in this case, however, Oliea has sought and obtained relief under Section 404 of the First Step Act of 2018 in the sentencing court. See Crim., Motion to Reduce Sentence (d/e 45). In 2010, Congress passed the Fair Sentencing Act of 2010 to reduce the sentencing disparity between crack and powder cocaine offenses. The First Step Act gave sentencing courts discretion to resentence individuals such as Oliea, who had been sentenced prior to the Fair Sentencing Act. Under the new statutory sentencing range, due to the weight of the drugs involved, Oliea was eligible to be sentenced pursuant to a statutory range of 0 to 30 years. See 21 U.S.C. § 841(b)(1)(C) (“If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years.”). His new ...


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