United States District Court, W.D. Wisconsin
QUADALE D. COLEMAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
On November 22, 2010, petitioner Quadale D. Coleman filed a motion under 28 U.S.C. ' 2255 to vacate, set aside or correct the prison sentence that he received in United States v. Coleman, Case No. 07-cr-80-jcs (W.D. Wis.). The court initially granted the motion on the ground that the district court erred by sentencing him as a “career offender” under § 4B1.1 of the United States Sentencing Guidelines. The Seventh Circuit reversed, United States v. Coleman, 763 F.3d 706 (7th Cir. 2014), cert. denied, __U.S. __, 2015 WL 730940 (March 23, 2015), remanded the case for further proceedings, and this court then denied Coleman’s remaining claims for ineffective assistance of counsel on the part of Coleman’s trial and appellate attorneys. (Dkt. #22.)
On July 8, 2015, Coleman filed a timely motion for reconsideration pursuant to Fed.R.Civ.P. 59(e), requesting that the court reconsider: (1) his ineffective assistance of counsel arguments; and (2) his sentence in light of the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). As he has not pointed to an error of law or fact, or a change in law that affects the court’s order denying § 2255 relief, this latest motion will also be denied.
Coleman pled guilty to possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). For purposes of sentencing, the Probation Office determined that Coleman possessed 121.939 grams of crack cocaine, which warranted a base level score of 32 under USSG § 2D 1.1. With a 2-level increase for having a firearm in proximity to the drugs and a 3-level reduction for acceptance of responsibility, Coleman's total offense score was adjusted to 31. Because he had a Criminal History Category of V, Coleman faced an imprisonment range of 140 and 175 months under the Guidelines.
In addition, the Probation Office also found that Coleman was subject to an additional enhancement as a “career offender” under USSG § 4B1.1. A defendant is a career offender, and subject to an enhanced sentence under § 4B1.1(a), if the following criteria are met: “(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG § 4B1.1. A “crime of violence” is defined in Guideline § 4B 1.2(a) to mean “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, ” that:
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Of Coleman’s prior felony convictions, the Probation Office found that the following qualified as a controlled substance offense and a crime of violence, respectively, for purposes of the career-offender enhancement: (1) possession with intent to distribute cocaine base; and (2) sexual assault of a child in violation of Wis.Stat. § 948.02(2). With the career-offender enhancement, Coleman moved up to a Criminal History Category VI, and to a recommended range of imprisonment under the advisory guidelines of 188 to 235 months.
At sentencing, then-presiding Judge John C. Shabaz agreed that Coleman was a career offender and applied the enhancement under § 4B1.1. Coleman's trial attorney objected that Coleman’s criminal history score and placement in Criminal History Category VI overstated his record because he was not a “violent offender.” His attorney further argued that the two crimes were eleven and twelve years old, and that classifying him as a career offender went “beyond the purposes of sentencing.” (Crim. R., Sent. Tr. (dkt. #29), at 7-8.) The district court overruled those objections, ultimately finding that Coleman “adequately depicts what a career offender is.” (Id.) As a result, the court sentenced Coleman near the upper end of the advisory guideline range -- 225 months in prison to be followed by a five-year term of supervised release.
On direct appeal, Coleman argued that he was entitled to resentencing under United States v. Kimbrough, 552 U.S. 85 (2007), which recognized a lower range of punishment for certain convictions involving the possession of crack cocaine. As a career offender, however, the Seventh Circuit found Coleman ineligible for relief under Kimbrough and affirmed the conviction in an unpublished opinion. See United States v. Coleman, 349 F. App’x 109, 2009 WL 3427549 (7th Cir. Oct. 26, 2009). Coleman did not petition for a writ of certiorari from that decision, and his conviction became final on January 26, 2010.
In his § 2255 motion, Coleman maintained that he was improperly classified as a career offender. Relying on a change in the law that occurred after his sentencing and appeal, Coleman argued that his prior conviction for second-degree sexual assault of a child under Wis.Stat. § 948.02(2) does not qualify as a crime of violence for purposes of § 4B1.1, and that he was therefore not eligible for the career offender enhancement. See United States v. McDonald, 592 F.3d 808 (7th Cir. 2010) (second-degree sexual assault of a child under Wis.Stat. § 948.02(2) not a “crime of violence” for purposes of U.S.S.G. § 2K2.1(a), which has the same meaning under § 4B1.2, the career-offender guideline). Coleman argued that his attorneys were deficient in failing to object on the basis that he was entitled to relief under § 2255.
The court initially granted Coleman’s motion on the ground that (1) the “categorical approach” to evaluating prior crimes used in McDonald should apply, and (2) Coleman should not have been classified as a career offender or subjected to enhancement under § 4B1.1. (Dkt. #43, at 8-10.) The court did not, however, reach the ineffective assistance of counsel arguments. The Seventh Circuit reversed, concluding that errors in applying the guidelines do not generally rise to the level of a miscarriage of justice that would permit relief under § 2255. Coleman, 763 F.3d at 708-09.
After remand, this court also rejected Coleman’s remaining argument that his trial and appellate counsel were deficient in failing to object that he was improperly classified as a career offender on the ground that his sexual assault crime did not constitute a crime of violence. (Dkt. #22.) The court reasoned that at the time of Coleman’s 2007 sentencing and 2009 appellate decision, it was settled law in this circuit that: sexual assault in violation of Wis.Stat. § 948.02(2) was a crime of violence, see United States v. Shannon, 110 F.3d 382 (7th Cir. 1997) (en banc); and (2) the Seventh Circuit only concluded that the crime did not qualify as a crime of violence in 2010, see McDonald, 592 F.3d 808. The court further reasoned that the sexual assault crime described in the PSR would not have “readily appeared to qualify as non-violent, ” and regardless his attorneys’ failure to anticipate that change did not amount to a deficient performance. (Dkt. #22 at 5-6.)
This court’s decision was issued on June 20, 2015. On June 26, 2015, the United States Supreme Court held that imposing an increased sentence under the “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(c)(1), violates the due process clause of the Constitution because the provision is unconstitutionally vague. United States v. ...