United States District Court, C.D. Illinois, Urbana Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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).
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.
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).
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.
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).
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.