United States District Court, E.D. Wisconsin
ADELMAN District Judge
Allen Motley pleaded guilty to conspiracy to distribute
heroin, and at his June 13, 2013 sentencing hearing I
determined that he qualified as a career offender based on
prior convictions of substantial battery whiled armed,
possession with intent to distribute cocaine, and substantial
battery/intend bodily harm, triggering a guideline
imprisonment range of 151-188 months. On consideration of the
government’s motion under U.S.S.G. § 5K1.1 and the
18 U.S.C. § 3553(a) factors, I imposed a sentence of 78
months. Defendant took no direct appeal of the sentence.
March 28, 2016, defendant filed a motion for sentence
modification pursuant to 18 U.S.C. § 3582(c)(2), which
permits the court to reduce the prison term of a defendant
sentenced based on a guideline range subsequently lowered by
the Sentencing Commission. Defendant relied on guideline
Amendment 782, which generally reduces by 2 the offense level
in drug trafficking cases. I denied the motion because
Amendment 782 did not have the effect of lowering
defendant’s applicable guideline range, see
U.S.S.G. § 1B1.10(a)(2), which was based on the career
offender provision. Defendant filed a notice of appeal from
this decision, and that appeal is pending before the Seventh
9, 2016, defendant filed a document entitled “Affidavit
of Facts.” In that filing, he asks the court to
reconsider the career offender designation in light of
Johnson v. United States, 135 S.Ct. 2551 (2015). In
Johnson, the Court struck down as unconstitutionally
vague the so-called “residual clause” of the
Armed Career Criminal Act (“ACCA”). The Court
later held that Johnson applies retroactively.
Welch v. United States, No. 15-6418, 2016 U.S. LEXIS
2451 (U.S. Apr. 18, 2016); see also Price v. United
States, 795 F.3d 731 (7th Cir. 2015).
Defendant requests that, should the court determine any of
his prior convictions no longer qualify as career offender
predicates, he be re-sentenced without that enhancement.
court generally lacks authority to modify a term of
imprisonment once it has been imposed, see 18 U.S.C.
§ 3582(c), and defendant provides no jurisdictional
basis for his request for Johnson review. Federal
prisoners serving ACCA sentences have relied on
Johnson to challenge those sentences under 28 U.S.C.
§ 2255, which allows collateral attack on a sentence
“in excess of the maximum authorized by law.” It
is unclear in this circuit whether Johnson applies
to the identically worded career offender guideline, see
Dawkins v. United States, 809 F.3d 953, 954
(7th Cir. 2016), although the Seventh Circuit has
allowed some such claims to proceed, see, e.g.,
Swanson v. United States, No. 15-2776, 2015 U.S.
App. LEXIS 21407 (7th Cir. Sept. 4, 2015). But
see Cummings v. United States, No. 15-CV-1219, 2016 U.S.
Dist. LEXIS 24547 (E.D. Wis. Feb. 29, 2016) (Stadtmueller,
J.) (denying Johnson claim brought by career
offender sentenced post-Booker).
has not previously filed a motion under 28 U.S.C. §
2255. The Supreme Court has held that before converting a
mis-labeled filing to a first § 2255 motion, the
district court should provide appropriate warnings.
Castro v. United States, 540 U.S. 375, 383 (2003). I
accordingly advise defendant that I intend to re-characterize
his “Affidavit of Facts” as a § 2255 motion,
warn him that this re-characterization means that any
subsequent § 2255 motion will be subject to the
restrictions on “second or successive” motions
set forth in § 2255(h), and provide him with an
opportunity to withdraw the filing or amend it so that it
contains all of the § 2255 claims he believes he
IT IS ORDERED that on or before June 24, 2016, defendant
either withdraw his filing or amend it to include any
additional arguments for collateral relief. Defendant is
advised that if he does not withdraw his filing by that date,
I will proceed to analyze it under the Rules Governing
Section 2255 Proceedings.
Under Amendment 782, defendant’s
base offense level under U.S.S.G. § 2D1.1(c) based on
drug weight would have dropped from 28 to 26. However,
Amendment 782 had no effect on the controlling base offense
level of 32 under the career offender guideline, U.S.S.G.
It does not appear that the pending
appeal on defendant’s § 3582(c)(2) motion would
divest the court of jurisdiction to consider a
Johnson challenge under § 2255. See Griggs
v. Provident Consumer Disc., Co., 459 U.S. 56, 58 (1982)
(per curiam) (“The filing of a notice of appeal is an
event of jurisdictional significance - it confers
jurisdiction on the court of appeals and divests the ...