United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING MOTION TO VACATE, SET
ASIDE OR CORRECT SENTENCE (DKT NO. 1) AND DISMISSING
PAMELA PEPPER United States District Judge
2011, the petitioner pled guilty to one count of conspiracy
to distribute five kilograms or more of cocaine and 100
kilograms or more of marijuana, and one count of possession
of firearms in furtherance of a drug trafficking offense.
United States v. Torrijos-Gonzalez, Case No.
11-cr-34-RTR (E.D. Wis.), at Dkt. No. 18. Judge Randa imposed
sentence on September 8, 2011. Id. at Dkt. No. 31.
2, 2016, the petitioner filed a letter, stating that he would
like a Federal Defender to represent him because he had just
learned about the Supreme Court’s decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), and
he thought that decision might provide him with a way to
challenge to his sentence. Dkt. No. 1. On May 26, Judge Randa
construed the letter as a motion for relief under 28 U.S.C.
§2255, and issued an order directing that within thirty
days, the petitioner should file his motion on the official
§2255 form, available on the court’s web site.
Dkt. No. 2. (Judge Randa ordered that the clerk’s
office provide the petitioner with a copy of the form.
Id.) The petitioner did not comply with Judge
Randa’s order, but on August 3, 2016, the case was
reassigned to this court.
4(b) of the Rules Governing Section 2254 Cases in the United
States District Courts (which applies to §2255
petitions) says that a court must “promptly
examine” a petition, and directs that “[i]f it
plainly appears from the petition . . . that the petitioner
is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the
petitioner.” This court has reviewed the
petitioner’s letter, and his case file. The court
concludes that the Johnson decision does not apply
to the petitioner, and therefore that the petitioner is not
entitled to relief in the district court. Thus, the court
will dismiss his petition.
Armed Career Criminal Act is part of the federal statute that
imposes penalties for gun offenses. It is located at 18
U.S.C. §924(e)(1). That statute says that anyone who
violates 18 U.S.C. §922(g) (which prohibits certain
people, such as felons, fugitives, or illegal aliens, from
possessing firearms), and who has three previous convictions
for a “violent felony” or a “serious drug
offense” or both, must be sentenced to a term of
imprisonment of at least fifteen years. The statute defines a
“violent felony” as either a felony that is a
“burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another,
” or a felony that “has as an element the use,
attempted use, or threatened use of physical force against
the person of another.” 18 U.S.C. §924(e)(2)(B).
That second clause of the first part of the definition-a
felony that “otherwise involves conduct that presents a
serious potential risk of physical injury to
another”-is called the “residual clause” of
the Armed Career Offender Act.
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act was
unconstitutionally vague, because it didn’t give a
defendant convicted under §922(g) enough guidance or
warning to figure out whether one of his three prior felony
convictions “otherwise involve[d] conduct that
present[ed] a serious potential risk of physical injury to
another, ” and thus whether he might be facing the
mandatory minimum fifteen-year sentence. The result of the
Supreme Court’s decision, then, was that any defendant
who was convicted of violating §922(g), and was
sentenced under §924(e) as an armed career criminal
based on one or more felonies that “otherwise
involve[d] conduct that present[ed] a serious potential risk
of physical injury to another” could challenge his
sentence under Johnson.
petitioner in this case pled guilty to two crimes-drug
conspiracy, and possessing firearms in relation to a drug
offense. He was not convicted of violating 18 U.S.C.
§922(g). Because a person must be convicted of violating
§922(g) in order to qualify as an armed career criminal,
the petitioner could not have been sentenced as an armed
career criminal. His plea agreement laid out the mandatory
minimum penalties he faced for the two crimes to which he
pled guilty-a mandatory minimum of ten years for the drug
crime, and a mandatory minimum of five years for the gun
crime. United States v. Torrijos-Gonzalez, 11-cr-34
at Dkt. No. 14, page 3. These mandatory minimum penalties
demonstrate that the petitioner was not subject to the Armed
Career Criminal Act; if he had been, he would have been
facing a mandatory minimum penalty of fifteen years. The
sentence imposed by Judge Randa supports this
conclusion-Judge Randa sentenced the petitioner to serve six
years on the drug charge, and five years on the gun charge-a
total of eleven years. Id. at Dkt. No. 34. Again, if
the petitioner had been sentenced as an armed career
criminal, Judge Randa would have been required to impose a
mandatory minimum sentence of no less than fifteen years.
Because the petitioner was not sentenced under the Armed
Career Criminal Act, he cannot challenge his sentence under
United States Sentencing Guidelines require a court to
enhance a defendant’s sentence if he qualifies as a
“career offender.” U.S.S.G. §4B1.1. A
defendant qualifies as a career offender if, at the time he
committed the crime for which he is being sentenced, he had
two or more prior felony convictions that either were crimes
of violence or controlled substance offenses. Id. In
defining a “crime of violence” for the purposes
of determining whether a defendant is a career offender,
U.S.S.G. §4B1.2(a)(1) defines a crime of violence as a
felony that “is a 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
language in §4B1.2 is the same language that the Supreme
Court found unconstitutionally vague when it struck down the
residual clause of the Armed Career Criminal Act.
lower courts have concluded that this means that the residual
clause of the career offender guideline also is
unconstitutional, and that if a defendant was sentenced as a
career offender based on one or more felonies that had as an
element the use, attempted use or threatened use of physical
force against another, that defendant may challenge his
sentence under Johnson-even though he wasn’t
sentenced as an armed career criminal. See, e.g.,
United States v. Pawlak, 822 F.3d 902, 907 (6th Cir.
2016) (“In our view, Johnson’s rationale
applies with equal force to the Guidelines’ residual
clause”). The Seventh Circuit Court of Appeals, whose
decisions bind this court, has not issued a decision on the
issue (although the question is pending before it), but even
if it had, the petitioner still would not have a claim under
Johnson. The court has reviewed the
petitioner’s Presentence Investigation Report, which
indicates that the defendant did not qualify as, or have his
sentence enhanced for being, a career offender.
as the court noted above, one of the crimes for which the
petitioner was sentenced was possessing a firearm during and
in relation to a drug offense, in violation of 18 U.S.C.
§924(c)(1)(A). That statute provides for an enhanced
sentence for anyone who uses or carries a firearm in relation
to either a crime of violence or a drug trafficking crime.
Like the ACCA and the career offender guideline, §924(c)
has a definition for “crime of violence.” Section
924(c)(3)(B) defines a crime of violence as a crime
“that, by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offenses.” Some
defendants have challenged this definition as being
unconstitutionally vague under Johnson. See,
e.g., United States v. Anglin, Case No.
14-cr-3, 2015 WL 6828070 at *5 (E.D. Wis. November 6, 2015).
But the petitioner in this case wasn’t convicted of
using or carrying a firearm during a crime of violence. He
was convicted of using or carrying a firearm during a drug
trafficking offense. Thus, even if there is some
constitutional flaw in §924(c)’s definition of a
crime of violence, it would not invalidate the
petitioner’s sentence, because he wasn’t
convicted of, or sentenced for, violating that part of the
these reasons, the petitioner is not entitled to relief from
the district court under the Supreme Court’s holding in
Johnson, and the court must deny the motion and
dismiss the petition.
11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts says that whenever a district court
enters a final order that is adverse to the petitioner, it
must either issue or deny a certificate of appealability. A
district judge may issue a certificate of appealability only
when a petitioner has made “a substantial showing of
the denial of a constitutional right, ” 28 U.S.C.
§2253(c)(2), and when “[j]urists of reason could .
. . disagree” as to whether the court wrongly decided
the issue, Walton v. Schwochert, Case No. 10-cv-117,
2010 WL 4318887 at *2 (E.D. Wis. October 25, 2010). Because
the petitioner has not made a substantial showing of the
denial of a constitutional right, and because the court does
not conclude that reasonable jurists could disagree about
that, the court declines to issue a certificate of
court DENIES the petitioner’s motion to vacate, set
aside or correct his sentence. Dkt. No. 1. The court ORDERS
that the petition is DISMISSED and directs ...