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Roach v. Werlich

United States District Court, S.D. Illinois

August 19, 2019

ROBERT T. ROACH, #45250-424, Petitioner,
v.
T.G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.

         Petitioner Robert T. Roach, an inmate in the Bureau of Prisons, filed a Petition for writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 1). In May 2014, Roach was sentenced to a 262 month term of imprisonment after pleading guilty to possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). United States v. Robert T. Roach, 12-cr-50065, Doc. 47 (N.D. Ill. May 9, 2014). His sentencing range under the United States Sentencing Guidelines (“Guidelines”) was enhanced after the sentencing judge determined that he was a career offender pursuant to U.S.S.G. § 4B1.1, based in part on two prior Illinois controlled substance convictions. Id. at Doc. 75, pp. 5-7.

         Roach now invokes Mathis v. United States, ___U.S.___, 136 S.Ct. 2243 (2016), to challenge his sentence and argue that he is entitled to be resentenced without this Guidelines enhancement. Specifically, Roach argues that because the Illinois controlled substance statutes he was convicted under criminalize the “delivery” of controlled substances, but the definition of a “controlled substance offense” under Section 4B1.2(b) of the Guidelines refers to the “manufacture, import, export, distribution, or dispensing” of a controlled substance instead of the “delivery” of a controlled substance, this conviction can no longer support the Guidelines enhancement under Mathis. (Doc. 1, pp. 7-8; Doc. 30, pp. 2-9; Doc. 33, pp. 1-4).

         Respondent opposes issuance of the writ on multiple grounds. First, Respondent argues that Roach cannot satisfy the requirements of Section 2255(e)'s savings clause because his sentence fell within the statutory maximum penalty for his crime of conviction notwithstanding his Guidelines enhancement, so his alleged harm is not a “miscarriage of justice” as required by Seventh Circuit precedent. (Doc. 17, pp. 4-7). Respondent also argues that Roach affirmatively waived his right to bring this action via the waiver provision in his plea agreement. (Id. at pp. 9-10). Finally, Respondent argues that even if the Court reaches the merits of Roach's Petition, his Petition must fail because Roach's prior Illinois controlled substance convictions are properly considered controlled substance offenses as defined by U.S.S.G. § 4B1.2(b). (Id. at pp. 15-20).

         Respondent supplemented his Response with additional Seventh Circuit authority (Doc. 22), prompting Roach to file both a Reply (Doc. 30) and a brief with supplemental authority in support of his Petition. (Doc. 33). Respondent filed an opposition to Roach's supplemental authority (Doc. 37), to which Roach replied. (Doc. 40). This matter is now ripe for resolution.

         Relevant Facts and Procedural History

         On January 6, 2014, Roach pleaded guilty to one count of possession with intent to distribute approximately 90 grams of a mixture containing cocaine base, [1] as well as one count of possessing a firearm in furtherance of a drug trafficking crime.[2] United States v. Roach, No. 12-cr-50065, Doc. 31, p. 2 (N.D. Ill. Jan. 6, 2014). Roach entered into a formal Plea Agreement, in which he agreed that he:

“knowingly waive[d] the right to appeal . . . any part of [his] sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the maximums provided by law . . . [and] waive[d] his right to challenge his conviction and sentence . . . in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255.”

Id. at p. 14.[3] Roach also agreed that he was a career offender under U.S.S.G. § 4B1.1(a) due to felony convictions for three prior Illinois controlled substance offenses. Id. at pp. 6-8.

         Both of Roach's offenses carried statutory mandatory minimum sentences of 5 years' (60 months') imprisonment. See 18 U.S.C. § 924(c)(1)(A)(i) (2006) and 21 U.S.C. § 841(b)(1)(B)(iii) (2010). Roach's drug trafficking offense carried a statutory maximum penalty of 40 years' (480 months') imprisonment, while his firearm offense carried a maximum penalty of life imprisonment. Id. While neither party has provided the Presentence Report (“PSR”) from Roach's underlying criminal case to the Court, there is no dispute that Roach was determined to be a career offender due to his prior Illinois controlled substance convictions. (Doc. 1, pp. 7-8; Doc. 17, pp. 7-9).[4]

         Roach asserts that before the career-offender enhancement, his Sentencing Guideline range would have been 110-137 months, but this was increased to an advisory range of 262-327 months as a result of the enhancement. (Doc. 1, p. 10). That range included the mandatory-consecutive 60 months for the firearm count.[5] Roach, No. 12-cr-50065, Doc. 75, pp. 5-6 (N.D. Ill.). Roach was sentenced to 202 months' imprisonment for his drug trafficking offense, plus the mandatory minimum of 60 months' imprisonment for his firearm offense, for a total of 262 months' imprisonment. Roach, No. 12-cr-50065, Doc. 47, p. 2 (N.D. Ill. May 9, 2014).

         Roach filed a direct appeal which was summarily denied by the Seventh Circuit after the panel found Roach had voluntarily entered into his plea agreement which contained a permissible and enforceable appeal waiver. Id. at Doc. 83, p. 2. He subsequently filed two motions under 28 U.S.C. § 2255. In the first motion, Roach argued that his counsel was ineffective during pre-trial motion practice in his criminal case-this motion was denied, with the court finding it was barred by the appeal waiver in Roach's plea agreement. United States v. Roach, No. 16-cv-50106, Doc. 4, pp. 1-2 (N.D. Ill. June 6, 2016).

         Roach's second Section 2255 motion, which was premised on Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551 (2015), was denied because Roach failed to apply for and obtain leave from the Seventh Circuit to file a second or successive Section 2255 motion. United States v. Roach, No. 16-cv-50221, Doc. 5, pp. 1-2 (N.D. Ill. Mar. 23, 2017). The court went on to state that even if Roach had been granted leave to file a second motion, his claim failed on the merits because it was directly “foreclosed by the Supreme Court's recent decision in Beckles v. United States, which held that the [Guidelines] are not subject to a vagueness challenge under the Due Process Clause.” Id. at p. 2 (internal quotations omitted).

         Applicable ...


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