United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE
cause is before the Court on Petitioner Kerry Talburt's
Motion to Vacate, Set Aside, or Correct Sentence Under 28
U.S.C. § 2255 (Doc. 1). Petitioner alleges he should not
have been sentenced as a career offender under the advisory
sentencing guidelines in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). The Court hereby LIFTS
the STAY entered on June 7, 2016. A hearing on the Motion is
not required because “the motion, files, and records of
the case conclusively show that the prisoner is entitled to
no relief.” Hutchings v. United States, 618
F.3d 693, 699-700 (7th Cir. 2010) (quotation omitted).
Because Petitioner is not entitled to relief, the § 2255
Motion is DENIED.
October 2013, a federal grand jury in the District Court for
the Central District of Illinois charged Petitioner with
conspiracy to distribute 50 grams or more of mixtures or
substances containing a detectable amount of methamphetamine
in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(B) (Count 1), and possession with intent to distribute
a mixture or substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) (Count 2). See United States v.
Talburt, United States District Court, Central District
of Illinois, Springfield Division, Case No. 3:13-cr-30077-1
(hereinafter, Crim.), Indictment (d/e 1).
February 24, 2014, Petitioner pled guilty to Count 2 of the
Indictment and the Government dismissed Count 1 of the
Indictment pursuant to a plea agreement. See Crim.,
Plea Agreement (d/e 12). As part of his plea agreement,
Talburt agreed to waive his right to direct appeal and
collateral attack. Id. ¶¶23-24. The
parties did not agree as to the base offense level or
criminal history category under the advisory sentencing
guidelines. Id. ¶16. However, the Government
agreed to recommend a sentence at the low-end of the
applicable sentencing guideline range as determined by the
Court. Id. ¶18.
United States Probation Office prepared multiple Presentence
Investigation Reports. The third revised Presentence
Investigation Report determined that Petitioner qualified as
a career offender under § 4B1.1 of the advisory
Sentencing Guidelines based on two prior Illinois felony
convictions: (1) Escape, Adams County, Illinois, Circuit
Court, Docket No.: 2002-CF-371; and (2) Unlawful Possession
of Methamphetamine Precursors (with the intent that it be
used to manufacture methamphetamine), Adams County, Illinois,
Circuit Court, Docket No.: 2009-CF-391. Crim., PSR ¶27
(d/e 29). The third revised PSR calculated Petitioner's
total offense level as 29 and criminal history category as V.
Based on this finding, the third revised PSR concluded that
Petitioner faced an advisory guideline sentencing range of
188 to 235 months of imprisonment. Id. ¶109.
Sentencing Hearing on April 15, 2015, this Court amended the
PSR by interlineation pursuant to the Government's
stipulation that the drug quantity for which Petitioner was
accountable was 32.5 grams. Crim., PSR Revised by
Interlineation, ¶¶21, 27 (d/e 37). This stipulation
lowered Petitioner's total offense level to 29. Along
with a criminal history category of V, Petitioner's
advisory guidelines imprisonment range became 151 months to
188 months. Id. ¶109. The sentencing hearing
was continued to the next day.
April 15, 2015, this Court sentenced Petitioner to 110
months' imprisonment, relying on a potential proposed
sentence that had previously been offered by the Government.
See Crim., Minute Entry April 14, 2015, Minute Entry
April 15, 2015, Judgment (d/e 34); Resp. at 2, n.1 (Doc. 3).
Petitioner did not file an appeal.
March 28, 2016, Petitioner filed this Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C § 2255 (Doc.
1). Petitioner seeks to challenge his sentence under
Johnson v. United States, 135 S.Ct. 2551 (2015),
which held that the residual clause of the Armed Career
Criminal Act is unconstitutionally vague. 135 S.Ct. at 2563;
18 U.S.C. § 924(e)(2)(B)(ii) (the ACCA “residual
clause”) (defining the term “violent
felony” to include “conduct that presents a
serious potential risk of physical injury to another”).
argues that, after Johnson, the identically worded
residual clause of the sentencing guidelines, §
4B1.2(a)(2), is also unconstitutionally vague. Accordingly,
because his designation as a career offender relied on the
finding that his conviction for Escape was a crime of
violence under the sentencing guidelines' residual
clause, he argues he should not have been sentenced as a
career offender. The Government filed its response (Doc. 3)
on April 18, 2016, and Petitioner filed his reply (Doc. 4) on
May 18, 2016.
August 2016, the Seventh Circuit held that Johnson
applied to the advisory sentencing guidelines. United
States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016)
(applying Johnson and holding that the residual
clause in U.S.S.G. § 4B1.2(a)(2) was unconstitutionally
vague). But, on March 6, 2017, the United States Supreme
Court decided Beckles v. United States, holding that
the “advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause” and that the
residual clause in § 4B1.2(a)(2) is not void for
vagueness. 137 S.Ct. 886, 890 (2017) (also abrogating
person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Relief under § 2255 is an extraordinary remedy
because a § 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007).
Petitioner's Johnson claim is foreclosed by the
decision in Beckles v. United States, 137 S.Ct. 886
(2017). Petitioner challenges his designation as a career
offender based on his prior conviction of Escape to the
extent that it qualified as a crime of violence under the
Guidelines' residual clause. In light of
Beckles, the “advisory Guidelines are not
subject to vagueness challenges under the Due Process
Clause” and the residual clause in § ...