United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge
Dwayne Peeples has filed a motion under 28 U.S.C. §
2255, challenging the 200-month sentence imposed on him in
2007 for possession with intent to distribute 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 never appealed directly from his sentence or filed a post
conviction motion until now.
contends that he was sentenced illegally in 2007 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. Petitioner was never convicted of
violating the Armed Career Criminal Act, but 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
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
Dwayne Peeples entered a plea of guilty in 2007 to a charge
of distributing 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 a term
of 140 months, below the career offender range of 151-88
months. When he was sentenced, 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.
did not take a direct appeal of his sentence or seek post
conviction relief until he filed this motion for post
conviction relief under 28 U.S.C. § 2255. He filed this
motion to vacate his sentence on April 22, 2016. He is
represented by the Federal Defender.
noted above, I am denying petitioner’s motion for the
same reasons I denied a similar claim in Bufford v.
United States, 15-cv-494-bbc (attached). In sum, it may
have been an error to have increased petitioner’s
sentence in 2007 but it was not an error that justifies
resentencing. Petitioner cannot show that the sentence he
received exceeded the statutory maximum for possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. A judge imposing a
sentence that is increased under § 924(e)(2)(B) of the
Armed Career Criminal Act must impose a sentence of at least
15 years to life, whereas a judge imposing a sentence under
the career offender guidelines has no authority to exceed the
Rule 11 of the Rules Governing Section 2255 Proceedings, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
"substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
"reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). I believe that
the conclusion I have reached is the correct one. ...