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Billups v. United States

United States District Court, W.D. Wisconsin

June 2, 2016

BRIAN K. BILLUPS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB, District Judge

         Petitioner Brian K. Billups is moving for post conviction relief under 28 U.S.C. § 2255, challenging his 2007 sentencing as a career offender. He contends that he is entitled to resentencing under the recent holding in Johnson v. United States, 135 S.Ct. 2551 (2015), that the so-called residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. Petitioner was not sentenced under this particular provision, but he believes that the decision applies to sentences imposed under the career offender provisions of the sentencing guidelines, as his was.

         For the reasons set out in Bufford v. United States, 15-cv-494-bbc (attached), I conclude that petitioner has no viable claim for resentencing. His sentence was imposed in 2007; he appealed from the sentence at the time; and he has not suggested any reason why his motion for post conviction relief raises any issue that would distinguish his case from the cases discussed in Bufford.

         RECORD FACTS

         In April 2007, petitioner Brian K. Billups was sentenced to a term of 151 months for one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. His sentence was increased after he was found to be a career offender by virtue of his two prior felony convictions, one for a serious controlled substance offense and one for false imprisonment. At the time, the applicable sentencing guidelines, U.S.S.G. § 4B1.2, read as follows:

(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.]
(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’s drug conviction qualified as a predicate offense for career offender status under U.S.S.G. § 4B1.2(b); his false imprisonment conviction qualified under § 4B1.2(a)(2). Petitioner was sentenced at the bottom of the advisory guideline range of 151-188 months. He took a direct appeal of his sentence in 2007, arguing that his false imprisonment charge was not a crime of violence, but not contending that the residual clause was unconstitutional. On appeal, the Court of Appeals for the Seventh Circuit agreed with this court that petitioner’s false imprisonment charge was a crime of violence. United States v. Billups, 536 F.3d 574, 576 (7th Cir. 2008) (crime fell within residual clause of U.S.S.G. § 4B1.2(a)(2) because it "always involves purposeful behavior and typically involves aggressive, violent behavior").

         In 2010, petitioner filed a post conviction motion under 28 U.S.C. § 2255, raising the same claim he had raised on direct appeal, contending that his false imprisonment conviction should not have been considered a crime of violence. Mot., dkt. #42, 06-cr-213-bbc. The motion was denied on the ground that petitioner had raised the same claim unsuccessfully in his direct appeal. Order, dkt. #43.

         In addition to these motions, petitioner tried twice to have his sentence reduced under retroactive changes to the drug quantity guidelines. Dkts. ##38 & 49. Both motions were denied on the ground that he was a career offender and the guideline changes did not apply to career offenders. Dkts. ##41 & 50.

         In October 2015, petitioner filed a second motion in this court for post conviction relief under 28 U.S.C. § 2255. After the motion was denied because petitioner had not obtained permission from the court of appeals to file a successive post conviction motion, Order, dkt. #51, he applied to the court of appeals to file a successive § 2255 petition in light of the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), that the residual clause in the Armed Career Criminal Act, ยง 924(e)(2)(B)(ii) was unconstitutionally vague. The court of appeals granted his ...


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