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Carter v. United States

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

August 28, 2019

PHILIP CARTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on Petitioner Philip Carter's Motion to Vacate Sentence Under 28 U.S.C. § 2255 (Doc. 1) and Amended Motion (Doc. 6). In light of the Supreme Court's recent decision in United States v. Davis, 139 S.Ct. 2319 (2019), and as explained below, the Court finds that Petitioner is entitled to relief on his claim that his conviction and seven-year sentence of imprisonment under 18 U.S.C. § 924(c) is unconstitutional. Accordingly, Petitioner's § 2255 Motion (Doc. 1) and Amended Motion (Doc. 6) are GRANTED.

         I. BACKGROUND

         In February 2004, Carter was charged by indictment of unlawful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See Indictment, United States v. Carter, Central District of Illinois, Urbana Division, No. 04-cr-20005-MPM-DGB-1 (hereinafter, Crim.) (d/e 6). In March 2004, a Superseding Indictment was filed against Carter, again charging him with unlawful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 1), as well as, kidnapping in violation of 18 U.S.C. § 1201(a)(1) (Count 2), and carrying a firearm during a crime of violence in violation of 18 U.S.C § 924(c) (Count 3). See Superseding Indictment, Crim. (d/e 9). On April 14, 2004, following a jury trial, Carter was found guilty on all three counts of the Superseding Indictment.

         The Presentence Investigation Report (PSR), prepared in anticipation of Carter's sentencing, was issued on February 18, 2005. See PSR, Crim. (d/e 40). As recounted in the Government's Response and in the PSR, Carter had a lengthy criminal history, and the underlying facts of the kidnapping offense were, undoubtedly, violent. See Gov't Resp. at 1-2 (Doc. 7); PSR ¶¶ 50- 74, Crim. (d/e 40). The PSR found that Carter's total offense level for his offenses in Counts 1 and 2 was 42, under United States Sentencing Guidelines (USSG), Chapters Two and Three, and Carter's Criminal History Score was VI, under USSG Chapter Four, Part A. The PSR did not apply a 2-level enhancement for use of a dangerous weapon pursuant to U.S.S.G. § 2A4.1(b)(3), due to his conviction on Count 3. PSR ¶ 39. The PSR determined Carter's sentencing guideline range to be 360 months to life imprisonment. PSR ¶ 105.

         The PSR further found that Carter was an Armed Career Criminal based on five previous convictions for “crimes of violence”: Unlawful Imprisonment in the First Degree, Logan County Court, No. 81-CR-065; Escape, Davidson County Criminal Court Case, No. 86-W-519; Complicity to Burglary in the Third Degree-2 counts, Simpson District Court, No. 96-CR-131; Burglary in the Third Degree-2 counts, Butler District Court, No. 95-CR-00072-001; and Sexual Abuse in the First Degree-4 counts, Grayson Circuit Court, No. 98-CR-00065. PSR ¶ 48. However, because Carter's offense level was equal to the level provided for by the Armed Career Criminal guideline (42), and because Carter's criminal history score was already equal to the score provided by the Armed Career Criminal guideline (VI), Carter's guideline range was not enhanced based on his status as an Armed Career Criminal.

         Carter's statutory mandatory minimum sentence on Count 1 was 15 years because of his status as an Armed Career Criminal. See 18 U.S.C. § 924(e). Additionally, Carter was statutorily required to serve a seven-year sentence on Count 3, carrying a firearm during a crime of violence in violation of 18 U.S.C § 924(c), consecutive to any sentence imposed on Counts 1 and 2. See 18 U.S.C. § 924(c)(1)(A)(ii).

         On March 10, 2005, Judge Michael P. McCuskey sentenced Carter to 600 months' imprisonment, consisting of 516 months on each of Counts 1 and 2 to be served concurrently, and 84 months on Count 3 to be served consecutively to Counts 1 and 2, followed by 5 years' supervised release. See Judgment, Crim., (d/e 43).

         On appeal, appointed counsel filed an Anders brief, noting that any argument that Carter's sentence was unreasonable would be frivolous. United States v. Carter, No. 05-1629 (7th Cir.). The Seventh Circuit granted counsel's motion to withdraw, and dismissed the appeal on July 24, 2006. Carter did not seek a writ of certiorari, so his conviction became final in 2006.

         On June 10, 2016, Carter filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). This Court dismissed Carter's ineffective assistance of counsel claim and his claim of an alleged error in his Armed Career Criminal designation on July 13, 2016. See Order (Doc. 3). However, the Court ordered that Carter may proceed on his claim that his seven-year sentence of imprisonment under 18 U.S.C. § 924(c) is unconstitutional in light of United States v. Johnson, 135 S.Ct. 2551 (2015), and appointed the Federal Public Defender as counsel for Carter. Carter, through counsel, filed an amended motion in August 2016 (Doc. 6). The Government filed a response (Doc. 7), and Carter filed a Reply (Doc. 8).

         In March 2017, Carter filed a Motion to Cite Additional Authority after the Seventh Circuit decided United States v. Jenkins, 849 F.3d 390 (2017), which held that federal kidnapping under 18 U.S.C. § 1201(a) did not qualify as a crime of violence under § 924(c)(3). However, on June 15, 2018, the Supreme Court vacated the Seventh Circuit's judgment for further consideration in light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (holding the residual clause of 18 U.S.C. § 16-which is worded identically to the residual clause of 18 U.S.C. § 924(c)(3)-was unconstitutionally vague). In January 2019, after additional briefing, the Seventh Circuit stayed Jenkins until the Supreme Court announced its decision in United States v. Davis, No. 18-431.

         On June 24, 2019, the Supreme Court announced its decision in Davis, which held that courts must use the categorical approach to determine if an offense is a crime of violence under § 924(c), and that § 924(c)'s residual clause is unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319 (2019).

         On July 10, 2019, finding that Davis likely resolves Carter's claim in his favor, this Court ordered the Government to inform the Court if it would like to request any additional briefing addressing the impact of the Davis. After the Government sought an extension, the Government was given until August 19, 2019, to file any supplemental briefing. See July 23, 2019, Text Order. The Government has not submitted any further filings, so the Court presumes that it does not wish to file any supplemental briefing. This Order follows.

         II. ...


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