United States District Court, E.D. Wisconsin
CHRISTOPHER R. CUMMINGS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
J.P. Stadtmueller U.S. District Judge.
On October 13, 2015, the petitioner, Christopher Cummings, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket #1). That § 2255 motion rests upon Mr. Cummings’ contention that his sentence is no longer appropriate in light of the Supreme Court’s decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). More specifically, Mr. Cummings argues that following Johnson he is not a career offender under the United States Sentencing Guidelines.
The parties have fully briefed the motion (Docket #1, #4, #7), and the Court will now decide it. In doing so, the Court first provides relevant background as to both Mr. Cummings’ underlying conviction and the state of the law in light of Johnson. It then describes the parties’ respective positions before substantively analyzing the issues presented in the case. Ultimately, the Court must deny Mr. Cummings’ § 2255 motion.
1. FACTUAL BACKGROUND
On August 15, 2006, a grand jury returned an indictment against Mr. Cummings. That indictment contained three separate charges of distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), all against Mr. Cummings, alone. (Case No. 06-CR-199, Docket #1).
Mr. Cummings pled guilty to Count Three in exchange for dismissal of the remaining two counts at the time of sentencing. (Case No. 06-CR-199, Docket #14 ¶¶ 4, 8; Case No. 06-CR-199, Docket #17). The plea agreement provided that the Government would be able to establish by a preponderance of the evidence that the drug quantity attributable to Mr. Cummings was 7.4 grams of cocaine. (Case No. 06-CR-199, Docket #14 ¶ 16).
Prior to sentencing, the Probation Department prepared a presentence report, in which it determined that Mr. Cummings was a career offender under the applicable guidelines, which had two effects on the guidelines applicable to Mr. Cummings. (See Case No. 06-CR-199, Docket #19 at 5-7). First, and of little importance, the career-offender designation required that Mr. Cummings be placed in criminal history category VI, pursuant to U.S.S.G. § 4B1.1. (See Case No. 06-CR-199, Docket #19 ¶ 20). That aspect of the career-offender designation is of little importance because, even without it, Mr. Cummings would still have been placed in criminal history category VI. (See Docket #36 at 3; Case No. 06-CR-199, Docket #19 at 7-8). Second, and much more important, the career-offender designation set the base offense level for Count Three at 34. (See Case No. 06-CR-199, Docket #19 at 5-7). Without the career-offender designation, Count Three’s base offense level would have been 12. (Id.) That disparity in base offense level meant the difference between, on one hand, a guideline range of 24-30 months applicable in the absence of the career-offender designation, and, on the other, a guideline range of 188-235 months applicable in light of the career-offender designation. (Id.; Case No. 06-CR-199, Docket #20 at 4-7).
Mr. Cummings understandably objected to his designation as a career offender. (Case No. 06-CR-199, Docket #19 at 5-7; Case No 06-CR-199, Docket #20 at 4-7). In doing so, Mr. Cummings identified the three separate requirements to be found a career offender:
(1) he was at least 18 when he committed the instant offense;
(2) the instant offense was either a crime of violence or controlled substance offense; and
(3) he had two prior felony convictions for either crimes of violence or controlled substance offenses.
U.S.S.G. § 4B1.1(a). He conceded that the first two requirements were satisfied. He was at least 18 when he committed the crime charged in Count Three, which was a controlled substance offense. (Case No. 06-CR-199, Docket #19 at 5-6). He also conceded that he had one prior felony conviction for a controlled substance offense, specifically, a state conviction for possession with intent to deliver cocaine. (Id. at 6).
Mr. Cummings, however, did not concede that he had a second felony conviction for a crime of violence. (See id.) Instead, he pointed out that his only prior conviction that could possibly constitute the required second conviction was a state conviction for Discharging a Firearm from a Vehicle, in violation of Wis.Stat. § 941.20(3)(a). (Case No. 06-CR-199, Docket #19 at 6). And that conviction, Mr. Cummings argued, did not qualify as a crime of violence under U.S.S.G. § 4B1.2(a). (Case No. 06-CR-199, Docket #19 at 6-7). Mr. Cummings pointed out that the elements of Wis.Stat. § 941.20(3)(a) did not include, “as an element the use, attempted use, or threatened use of physical force against the person of another, ” U.S.S.G. § 4B1.2(a)(1). (See Case No. 06-CR-199, Docket #19 at 7). Accordingly, Mr. Cummings’ conviction could not satisfy the provisions of U.S.S.G. § 4B1.2(a)(1), known as the “force clause” or “elements clause” (hereinafter, the Court will refer to this as the “force clause”). (Case No. 06-CR-199, Docket #19 at 7). Likewise, a conviction under Wis.Stat. § 941.20(3)(a) could not possibly be one for “burglary of a dwelling, arson, or extortion, ” and also could not “involve[ ] use of explosives, ” U.S.S.G. § 4B1.2(a)(2). (See Case No. 06-CR-199, Docket #19 at 7). Thus, Mr. Cummings’ conviction could not satisfy the first clause of U.S.S.G. § 4B1.2(a)(2). (Case No. 06-CR-199, Docket #19 at 7).
That left only the “residual clause” of U.S.S.G. § 4B1.2(a)(2) as a possible basis for classifying Mr. Cummings’ Wis.Stat. § 941.20(3)(a) conviction as a “crime of violence.” The residual clause provides that a felony conviction is for a crime of violence if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Mr. Cummings argued that, if the Court were to review the complaint and plea colloquy regarding Mr. Cummings’ conviction under Wis.Stat. § 941.30(3)(a), it should not conclude that the conviction satisfied the residual clause. (Case No. 06-CR-199, Docket #19 at 7).
The Court disagreed with that argument. At Mr. Cummings’ sentencing hearing, the Court held that Mr. Cummings’ Wis.Stat. § 941.30(3)(a) conviction constituted a crime of violence under the residual clause. (See Case No. 06-CR-199, Docket #34 at 9:1-11:1). Accordingly, the Court treated Mr. Cummings as a career offender subject to a criminal history category of VI and a base offense level of 34. (Case No. 06-CR-199, Docket #34 at 16:2-10). After adjusting the offense level to account for Mr. Cummings’ acceptance of responsibility, the Court determined that Mr. Cummings was subject to the following relevant guidelines:
Offense Level: 31
Criminal History Category:
VI Guideline Term of Imprisonment: 188-235 months
(Id.) And, after considering those guidelines together with the arguments of the parties, the Court ultimately sentenced Mr. Cummings to 180 months imprisonment and entered judgment accordingly. (Case No. 11-CR-199, Docket #28).
Mr. Cummings did not directly appeal the judgment against him (Case No. 06-CR-199, Docket #29), nor did he earlier file a § 2255 motion, despite having requested permission to do so (see Case No. 06-CR-199, Docket #31, #32). It was not until after the Supreme Court issued Johnson, in June of 2015, that Mr. Cummings filed the § 2255 motion now before the Court.
2. JOHNSON AND RESULTING DEVELOPMENTS IN THE LAW
However, more than eight years after Mr. Cummings’ judgment became final, the Supreme Court decided Johnson. As a result, the Court’s earlier designation of Mr. Cummings as a career offender for purposes of the guidelines may no longer be appropriate in light of Johnson and developments in Seventh Circuit law.
The Court begins with Johnson, which held unconstitutionally vague the residual clause found in the Armed Career Criminal Act’s (“ACCA”) definition of “violent felony, ” 18 U.S.C. § 924(e)(2)(B)(ii). 135 S.Ct. at 2563. The ACCA’s residual clause provided that a violent felony is “any crime punishable by imprisonment for a term exceeding one year…that…otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court found that the residual clause “leaves grave uncertainty about how to estimate the risk posed by a crime, ” and “about how much risk it takes for a crime to qualify as a violent felony.” 135 S.Ct. at 2557-58. The Supreme Court had attempted to interpret the residual clause in four earlier cases, reaching differing results. James v. United States, 550 U.S. 192 (2007) (Florida’s attempted-burglary offense is a violent felony under residual clause); Begay v. United States, 553 U.S. 137 (2008) (New Mexico’s driving-under-the-influence offense is not a violent felony under the residual clause); Chambers v. United States, 555 U.S. 122 (2009) (Illinois’ failure-to-report-to-a-penal-institution offense is not a violent felony under the residual clause); Sykes v. United States, 564 U.S. 1 (2011) (Indiana’s vehicular-flight-from-a-law-enforcement-officer offense is a violent felony under the residual clause). After dissenting opinions suggested that the residual clause be held unconstitutionally vague in Chambers, 550 U.S. at 230 (Scalia, J., dissenting) and Sykes, 564 U.S. at ----, 131 S.Ct. 2267, 2276-77, the Johnson majority adopted that position, 135 S.Ct. at 2563.
But there are a number of gaps between Johnson and this case. First, Johnson involved a criminal defendant’s direct appeal of his conviction, whereas Mr. Cummings’ case comes before the court on collateral review. Second, Johnson concerns an entirely different law than the one at issue, here; the ACCA’s residual clause was at issue in Johnson, whereas the guidelines’ residual clause is at issue in this case.
Post-Johnson developments in the law have helped fill those gaps.
First, as to the applicability of Johnson on collateral review, the Seventh Circuit held that Johnson announced a new substantive rule of constitutional law that is “categorically retroactive to cases on collateral review.” Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015).
And, second, the Seventh Circuit has authorized several successive § 2255 motions challenging the guidelines’ residual clause on the basis of Johnson, at least implying that the question of Johnson’s retroactive applicability to the guidelines’ residual clause remains open. See, e.g., Best v. United States, No. 15-2417, Docket #2 (7th Cir. Aug. 5, 2015); Stork v. United States, No. 15-2687, 2015 WL 5915990, at *1 (7th Cir. Aug. 13, 2015) (“Stork I”); Swanson v. United States, No. 15-2776, Docket #5 (7th Cir. Sep. 4, 2015); Zollicoffer v. United States, No. 15-3125, Docket #4 (7th Cir. Oct. 20, 2015); Spells v. United States, No. 15-3252, Docket #9 (7th Cir. Oct. 22, 2015). This makes logical sense, because the residual clause of both the ACCA and the guidelines are practically identical. Indeed, the Seventh Circuit has “interpreted both residual clauses identically, ” and noted that it is proceeding on the assumption that Johnson’s “reasoning applies to [§] 4B1.2 as well.” Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015) (citing United States v. Billups, 536 F.3d 574, 579 n. 1 (7th Cir. 2008); United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008), abrogated on other grounds by United States v. Miller, 721 F.3d 435, 443 (7th Cir. 2013); United States v. Rosas, 410 F.3d 332, 335-36 (7th Cir. 2005)).
Moreover, the Supreme Court, itself, acted in a similar way in the days following the issuance of Johnson, when it vacated and remanded several cases involving the guidelines’ residual clause. See, e.g., Beckles v. United States, 135 S.Ct. 2928 (June 30, 2015); Maldonado v. United States, 135 S.Ct. 2929 (June 30, 2015); Smith v. United States, 135 S.Ct. 2930 (June 30, 2015); Denson v. United States, 135 S.Ct. 2931 (June 30, 2015); Talmore v. United States, 135 S.Ct. 2937 (June 30, 2015); Cooper v. United States, 135 S.Ct. 2938 (June 30, 2015); Jones v. United States, 135 S.Ct. 2944 (June 30, 2015).
3.THE PARTIES’ ARGUMENTS
Mr. Cummings’ substantive position is simple: he argues that, in light of Johnson, he is no longer a career offender under the guidelines and should, therefore, be resentenced using the much lower guidelines range that would have otherwise been applicable in the absence of his career offender designation. There are three component parts of this argument. First, Johnson must be retroactive, both to make Mr. Cummings’ petition timely and also to provide an available basis for relief. (Docket #1 at 5-6, 9-10). Second, Johnson must apply to the guidelines. (Docket #1 at 6-9). Third, Johnson must substantively undermine the guidelines’ earlier designation of Mr. Cummings as a career offender; i.e., in light of Johnson, Mr. Cummings must not be subject to career offender designation under U.S.S.G. § 4B1.1. (Docket #1 at 10-12). If any one of those three component parts is not the case, then Mr. Cummings’ § 2255 motion must fail.
The Government essentially concedes the latter two component parts of Mr. Cummings’ argument. It agrees that Johnson applies to the guidelines. (Docket #4 at 7-8 (“To be clear, the government agrees that Johnson’s holding that the ACCA’s residual clause is invalid applies to the identically worded residual clause in the career-offender guideline.”) (citing United States v. Darden, 605 F. App’x 545, 545-56 (6th Cir. 2015))). It also appears to acknowledge that Johnson has invalidated the guidelines’ residual clause, undermining the basis for designating Mr. Cummings a career offender. (See, e.g., Docket #4 at 2 (“As Cummings correctly notes, the relevant language in the career offender guideline-the catch-all language that would encompass a discharge-of-a-firearm conviction-is identical to the ACCA’s ‘residual clause.’”), 7 (“the government agrees that Johnson’s holding…applies to the identically worded residual clause in the career-offender guideline.”), 8 (“In sum, Johnson applies…in guidelines cases on direct review.”)). That position is consistent with the one the Government has taken before the Seventh Circuit. See, e.g., United States v. Hurlburt, No. 14-3611, Docket #15 at 8 (filed Sep. 23, 2015) (“The government concedes that Johnson…applies to the ...