Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bufford v. United States

United States District Court, W.D. Wisconsin

June 2, 2016

RITCHIE E. BUFFORD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge.

         Petitioner Ritchie E. Bufford has filed a motion under 28 U.S.C. § 2255, challenging the 200-month sentence imposed on him in 2008 for possession with intent to distribute five grams or more of cocaine base. He was sentenced as a career offender because he had one prior conviction for a serious controlled substance offense and another for the crime of vehicular fleeing/eluding an officer, which qualified as a "crime of violence" under the sentencing guidelines at the time he was sentenced. He took a direct appeal of his sentence, which was denied, but he never filed a post conviction motion until now.

         Petitioner contends that he was sentenced illegally in 2008 and is entitled to resentencing as a result of the recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), that the so-called residual clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Odd as it might seem that he is basing his claim on a change in the Armed Career Criminal Act, when he has never been convicted of violating that Act, he has reason to do so because he is challenging a provision in the sentencing guidelines that tracks the residual clause in § 924(e)(2)(B). If he is correct in thinking that the holding in Johnson applies to his case, he will no longer be considered a career offender under the guidelines and will be eligible for resentencing.

         Although the Court of Appeals for the Seventh Circuit has not yet decided whether the Johnson decision requires resentencing of career offenders like petitioner, as a general rule it has been reluctant to grant requests for resentencing of career offenders. The two exceptions to this rule are those situations in which the challenge was raised on direct appeal or the petitioner was sentenced under the guidelines while they were mandatory. Petitioner has not shown that his case falls into either of those exceptions. Accordingly, I will deny his motion for post conviction relief.

         RECORD FACTS

         In September 2006, petitioner Ritchie E. Bufford entered a plea of guilty to a charge of distributing five or more grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). He was sentenced as a career offender under the sentencing guidelines, U.S.S.G. § 4B1.2, to 200 months, which was 62 months below the bottom of his 262-327 month guideline range. Petitioner had two prior felony convictions, one for a serious controlled substance offense and one for fleeing an officer. The drug conviction qualified as a predicate offense for career offender status under § 4B1.2(b); at the time, the fleeing an officer conviction qualified as a crime of violence under § 4B1.2(a)(2) under the applicable guidelines:

(a) The term "crime of violence" means 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. [The italicized portion is generally referred to as the residual clause and is taken verbatim from 18 U.S.C. § 924(e)(2)(B)(ii).]
(b) The term "controlled substance offense" means 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.

         Petitioner took a direct appeal of his sentence, which was denied, along with the appeals of two other defendants. United States v. Partee, 373 Fed. App’x. 602 (7th Cir. 2010). He did not seek post conviction relief until August 10, 2015, after Johnson had been decided, when he filed this motion for post conviction relief under 28 U.S.C. § 2255. This was his first motion for post conviction relief and he was granted leave to proceed on September 14, 2015. His motion for appointment of counsel was granted on September 28, 2015.

         OPINION

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that it was unconstitutional to rely on the abstract terms of the residual clause to increase the punishment of a person sentenced under the Armed Career Criminal Act. The language of the clause, "conduct that presents a serious potential risk of physical injury to another, " is too vague to give fair warning of the conduct that came within the terms of the clause and thus denied the offender due process of law. Id. at 2557. The Court made it explicit in Welch v. United States, 136 S.Ct. 1257 (2016), that the holding in Johnson is substantive and has retroactive effect on sentences imposed under the Armed Career Criminal Act. See also Conrad v. United States, 815 F.3d 324, 327 (7th Cir. 2016) ("rules altering sentencing length are explicitly substantive even when the sentencing judge is not required to impose the higher or lower sentence permitted by the new rule"); Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015) ("Johnson, we conclude, announced a new substantive rule.").

         The issue that petitioner raises is whether the holding in Johnson applies to sentences imposed under § 4B1.2(a)(2) of the sentencing guidelines that were not either pending on direct appeal at the time that Johnson was decided or eligible for direct appeal. Another way of phrasing this is to ask whether the holding in Johnson is substantive as it relates to sentences imposed under the career offender guidelines rather than under § 924(e)(2)(B). The government’s position is that Johnson does not apply to any guideline sentences other than those few pending on direct review or not yet final. In the government’s view, this differential in treatment between sentences imposed under § 924(e)(2)(B) and those imposed under the guidelines is justified by the fact that career offender sentences do not increase the length of the sentence to which a defendant is subject. Although a judge using the residual clause as the starting point for the calculation of the sentencing guidelines may arrive at a higher sentence than would have been imposed without the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.