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Grant v. United States

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

November 21, 2019

JAMILL GRANT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on Petitioner Jamill Grant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 2). Petitioner alleges he is entitled to relief because he should not have been sentenced as a career offender under the advisory sentencing guidelines and because his counsel was ineffective for failing to advise him of his potential status as a career offender. 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 (Doc. 2) is DENIED.

         I. BACKGROUND

         On April 6, 2016, a grand jury in the District Court for the Central District of Illinois charged Grant with three counts of knowingly and intentionally distributing mixtures or substances containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See United States v. Grant, United States District Court, Central District of Illinois, Springfield Division, No. 3:16-cr-30021 (hereinafter, Crim.), Indictment (d/e 4). On August 22, 2016, Grant pled guilty to all three counts without a plea agreement. See Crim., Aug. 22, 2016 Minute Entry.

         Prior to pleading guilty, the Government filed an Information pursuant to 21 U.S.C. § 851(a)(1), notifying Grant that due to his prior Illinois conviction of Manufacture/Delivery of Heroin, Sangamon County Circuit Court, Docket No. 12-CF-451, he was subject to a sentence of not more than 30 years imprisonment. Crim., Information (d/e 10). At the change of plea hearing, Grant affirmed under oath that he understood that the possible penalties included up to 30 years imprisonment. Resp. Ex. A at 5 (Doc. 4-1).[1]

         The United States Probation Office prepared a revised Presentence Investigation Report (PSR). Crim., PSR (d/e 19). Because Grant was over the age of 18 when he committed these offenses and his charges are considered “controlled substance offenses, ” he was also subject to the career offender sentencing enhancement if he had “at least two prior felony convictions of either a crime of violence or a controlled substances offense.” U.S.S.G. § 4B1.1(a). The PSR concluded that Grant qualified as a career offender due to his prior convictions for (1) Manufacture/ Deliver Cannabis, Sangamon County Circuit Court, Docket No. 07-CF-334; (2) Manufacture/Deliver Cannabis, Sangamon County Circuit Court, Docket No. 08-CF-80; and (3) Manufacture/ Deliver Controlled Substance, Sangamon County Circuit Court, Docket No. 12-CF-451. PSR ¶34. The PSR calculated a total offense level of 31 and a criminal history category of VI, resulting in an advisory sentencing guideline range of 188 to 235 months' imprisonment. Id. ¶99.

         On January 20, 2017, this Court sentenced Grant to a below guidelines sentence of 120 months' imprisonment on each of Counts 1, 2, and 3 to run concurrently, followed by six years of supervised release. Crim., Judgment (d/e 26). Grant filed a Notice of Appeal, but his appeal was voluntarily dismissed. Crim., Notice of Appeal (d/e 30); Crim., Mandate (d/e 35).

         Grant filed this Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 2) on January 10, 2018. He alleges: (1) he was improperly designated as a career offender under the advisory sentencing guidelines because his two previous convictions for manufacture/ delivery of cannabis under Illinois law did not qualify as “controlled substance offenses”; and (2) that he received ineffective assistance of counsel because his attorney failed to advise him of his potential designation as a career offender and failed to argue that he should not have been designated a career offender. The Government has filed its Response (Doc. 4), and Petitioner has filed a Reply (Doc. 5). This Order follows.

         II. ANALYSIS

         A 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 § 2555 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). Here, Grant argues that he was improperly designated a career offender under the advisory sentencing guidelines and that his attorney was ineffective for failing to advise him that he may be designated a career offender and for failing to argue that he was not a career offender at the sentencing hearing. The Court finds that both claims must be denied.

         A. Petitioner was Properly Sentenced as a Career Offender.

         Grant argues that he was improperly designated as career offender under the advisory sentencing guidelines because his two previous convictions for manufacture/ delivery of cannabis under Illinois law are not categorically controlled substance offenses. Petitioner relies on the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), and the Fifth Circuit's decision in United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). The Government argues that Grant was properly sentenced as a career offender. The Court agrees.

         In Mathis, the Supreme Court held that Iowa's burglary statute did not qualify as a predicate violent felony under the ACCA because it was broader than the generic offense of burglary in § 924(e)(2)(B)(ii). 136 S.Ct. at 2251. Mathis concerned the application of the “categorical approach, ” whereby courts determine whether a prior conviction qualifies as a listed offense by focusing “solely on whether the elements of the crime of conviction sufficiently match the elements of [the listed offense], while ignoring the particular facts of the case.” Id. at 2248. Courts have also been authorized to use “the ‘modified categorical approach' . . . with statutes having multiple alternative elements” and “look[] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. at 2249. Mathis clarified that a divisible statute is one that lists elements in the alternative, and, in doing so, creates a separate crime associated with each alternative element. Id.

         Relying on Mathis, the Fifth Circuit in Hinkle found that the elements of the Texas crime of delivery of a controlled substance did not match the definition of “controlled substance offense” in § 4B1.2(b) of the sentencing guidelines. Hinkle, 832 F.3d at 576. The Texas law included alternative means of satisfying the element of “delivery, ” which included an “offer to sell.” Id. at 573. A controlled substance offense for the purposes of designating a defendant a career offender under the advisory sentencing guidelines is defined as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). The Hinkle court found that an “offer to sell” was not ...


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