United States District Court, C.D. Illinois, Springfield Division
ORDER AND OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
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).
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).
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.
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.
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.
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.
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.
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.
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. §
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).
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).
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