United States District Court, S.D. Illinois
JAMAR E. PLUNKETT, Petitioner,
WILLIAM TRUE, Respondent.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE.
Jamar E. Plunkett, an inmate of the Federal Bureau of Prisons
(“BOP”) currently incarcerated at U.S.
Penitentiary Marion (“USP Marion”), brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 in
order to challenge his enhanced sentence as a career offender
in United States v. Plunkett, Case No.
13-cv-30003-MJR (S.D. Ill.) (“Criminal Case”)
based on his prior drug conviction in Illinois. (Doc. 1). In
support of his Petition, he relies on the Supreme
Court’s decision in Mathis v. United States,
___ U.S. ___, 136 S.Ct. 2243 (2016). He argues that, in light
of Mathis, he should not have been subject to the
career offender enhancement under the United States
Sentencing Guidelines. Plunkett seeks a new sentence.
(Id. at p. 32).
matter is now before the Court for preliminary review of the
Section 2241 Petition. Rule 4 of the Federal Rules Governing
Section 2254 Cases in United States District Courts provides
that upon preliminary consideration by the district judge,
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” Rule 1(b) gives this Court the authority
to apply the rules to other habeas corpus cases.
2013, Plunkett pled guilty to distributing crack cocaine in
violation of 21 U.S.C. § 841(a)(1). (Doc. 32, Criminal
Case). He was sentenced as a career offender (see
U.S.S.G. §4B1.1) to 212 months’ imprisonment.
(Doc. 47, Criminal Case). Plunkett qualified as a career
offender based on a prior conviction of possession of a
controlled substance with the intent to distribute which
qualified as a controlled substance offense under U.S.S.G.
§4B1.1. Plunkett agreed in his plea agreement that he
qualified as a career offender. (Doc. 33, Criminal Case). The
plea agreement contained a waiver of the right to bring an
appeal and collateral attack of Plunkett’s conviction
and sentence, except as to any subsequent change in the
interpretation of the law that is declared retroactive by the
courts and renders Defendant actually innocent of the charges
and appeals based on Sentencing Guidelines amendments that
are made retroactive. (Id.). Plunkett did not appeal
his conviction or sentence.
filed a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255, arguing that his counsel was
ineffective for failing to object to his base offense level
of 34 and for failing to file a direct appeal. See
Plunkett v. United States, Case No. 15-cv-81-MJR, Doc.
38 (“Section 2255 Petition”). Plunkett later
amended his petition to add an argument based on the United
States Supreme Court’s decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). (Doc. 38, Section
2255 Petition). The petition was dismissed with prejudice on
June 16, 2017 after the District Court determined that
Plunkett’s claims were foreclosed by his appeal waiver.
(Id.). To the extent he added claims pursuant to
Johnson, those claims were foreclosed by the Supreme
Court’s decision in Beckles v. United States,
137 S.Ct. 866 (2017), which held that the guidelines were not
subject to vagueness challenges. (Doc. 38, p. 11, Section
2255 Petition). The instant Section 2241 Petition followed.
relies on the Supreme Court’s decision in
Mathis to challenge his designation and sentence as
a career offender. He argues that his prior Illinois drug
offense should not qualify as a felony drug offense because
his prior conviction criminalizes a broader range of conduct
than its federal counterpart, namely that Illinois’
definition of “cocaine” is broader than the
federal definition. (Doc. 1, pp. 19-29). He cites to the
Seventh Circuit decision in United States v. Elder,
900 F.3d 491 (7th Cir. 2018) and the Southern District of
Indiana’s decision in Caffie v. Krueger, Case
No. 17-cv-487-WTL-DLP, Doc. 41 (S.D. Ind. Jan. 25, 2019) to
support his position. Plunkett’s career offender
guideline range was 188 to 235 months. (Doc. 48, Criminal
Case). Plunkett argues that his guideline range would be as
low as 140-175 months without the career offender enhancement
and with the reduction for his acceptance of responsibility.
(Doc. 1, pp. 28-29). Plunkett’s offense carried a
statutory maximum penalty of not more than 20 years without
the enhancement. See 21 U.S.C. 841(b)(1)(C). With
the enhancement, the statutory maximum was not more than 30
limited circumstances, a prisoner may challenge his federal
conviction or sentence pursuant to 28 U.S.C. § 2241.
Section 2255(e) contains a “savings clause” which
authorizes a federal prisoner to file a § 2241 petition
where the remedy under § 2255 is “inadequate or
ineffective to test the legality of his detention.”
“A procedure for postconviction relief can fairly be
termed inadequate when it is so configured as to deny a
convicted defendant any opportunity for judicial
rectification of so fundamental a defect in his conviction as
having been imprisoned for a nonexistent offense.”
In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).
Following Davenport, a petitioner must satisfy three
conditions in order to trigger the savings clause: (1) he
must demonstrate that he relies on a new statutory
interpretation case and not a constitutional case; (2) he
must demonstrate that he relies on a decision that he could
not have invoked in his first § 2255 motion and that
case must apply retroactively; and (3) he must demonstrate
that there has been a “fundamental defect” in his
conviction or sentence that is grave enough to be deemed a
miscarriage of justice. See Brown v. Caraway, 719
F.3d 583, 586 (7th Cir. 2013); Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012).
errors can be raised on direct appeal, but not in a
collateral attack pursuant to Sections 2255 or 2241. A claim
that a defendant was erroneously treated as a career offender
under the advisory Sentencing Guidelines is one such claim.
As the Seventh Circuit has noted, “[W]e held in
Hawkins that the error in calculating the Guidelines
range did not constitute a miscarriage of justice for
[Section] 2255 purposes given the advisory nature of the
Guidelines and the district court’s determination that
the sentence was appropriate and that it did not exceed the
statutory maximum.”. United States v. Coleman,
763 F.3d 706, 708–09 (7th Cir. 2014); see also
Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013),
supplemented on denial of rehearing, 724 F.3d 915 (7th Cir.
2013). More recently, the Seventh Circuit reiterated that the
Sentencing Guidelines have been advisory ever since the
Supreme Court decided United States v. Booker, 543
U.S. 220 (2005). Perry v. United States, 877 F.3d
751 (7th Cir. 2017).
Guideline enhancement and sentencing range that applied to
Plunkett was advisory, not mandatory, because he was
sentenced in 2014, well after the Booker decision.
See United States v. Plunkett, Case No.
13-cr-30003-MJR, Doc. 47 (S.D. Ill. Jan. 24, 2014)
(“Criminal Case”). Plunkett received a sentence
well within the statutory maximum as he received a sentence
of 212 months and the non-enhanced statutory maximum was 20
years. See 21 U.S.C. §841(b)(1)(C); see
also Criminal Case, Doc. 47, p. 2. Thus, Plunkett cannot
demonstrate a miscarriage of justice so as to permit a
Section 2241 petition. The savings clause affords Plunkett no
Court notes Plunkett’s citation to United States v.
Elder, 900 F.3d 491 (7th Cir. 2018) in support of his
Petition. In Elder, the Seventh Circuit used the
framework of Mathis (which refined the rule of
Taylor v. United States, 495 U.S. 575 (1990)) to
analyze 21 U.S.C. § 841(b)(1)(A)’s mechanism to
enhance the mandatory minimum sentence of drug trafficking
offenders with prior “felony drug offenses” as
defined by the United States Code. Elder, 900 F.3d
at 495–96. After applying the categorical approach of
Taylor and Mathis to the Arizona statute at
issue in the case, the Elder panel concluded that
the Arizona statute criminalized the possession of more
substances than those contained in the definition of
“felony drug offense” at 21 U.S.C. §
802(44). Id. at 501–03. The Court finds,
however, that the analysis and conclusion of Elder
is distinguishable from this case-Elder was not
decided in the context of the Guidelines, nor does it discuss
or implicate the rule in Hawkins in any way.
Id. at pp. 493–504. Even if the Court were to
assume that Plunkett’s prior Illinois convictions no
longer pass muster under the categorical approach employed in
Mathis and Elder, Hawkins would
still dictate that there was no “fundamental
defect” sufficient to meet Section 2255(e)’s
savings clause because his sentence was imposed pursuant to
the advisory Guidelines, and it was within the statutory
range for his offense. Further, the Southern District of
Indiana’s decision in Caffie is not binding on
short, there is no meaningful way to distinguish
Hawkins from this case. The issue in
Hawkins was the same as the issue raised here by
Plunkett: the use of a prior conviction that would allegedly
no longer qualify as a predicate for a Guidelines enhancement
under current law. In its supplemental opinion on denial of
rehearing in Hawkins, the Seventh Circuit summarized
its holding: “an error in calculating a
defendant’s guidelines sentencing range does not
justify postconviction relief unless the defendant had . . .
been sentenced in the pre-Booker era, when the
guidelines were mandatory rather than merely ...