United States District Court, E.D. Wisconsin
DECISION AND ORDER LIFTING STAY (DKT. NO. 3), DENYING
MOTION FOR RELIEF UNDER 28 U.S.C. §2255 (DKT. NO. 1) AND
PAMELA PEPPER United States District Judge.
31, 2016, the petitioner filed a motion to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255,
citing the Supreme Court’s ruling in Johnson v.
United States, 135 S.Ct. 2551 (2015) that the residual
clause in the Armed Career Criminal Act is unconstitutionally
vague. Dkt. No. 1. On June 7, 2016, the court issued an order
staying all proceedings in the case pending a ruling from the
Seventh Circuit on the issue of whether the Supreme
Court’s reasoning in Johnson also renders
unconstitutional the residual clause of U.S.S.G. §4B1.2
(the definitional section of the career offender guideline).
Dkt. No. 3.
issuing that order, however, the court reviewed more closely
the petitioner’s criminal case file. The court did not
enhance the petitioner’s sentence under §4B1.1,
the career offender provision, and therefore any decision the
Seventh Circuit might make on the constitutionality of that
guideline would not affect the petitioner’s case. The
court will, therefore, lift the stay it imposed, and conduct
an initial review of the petitioner’s motion.
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 defendant was convicted of a “crime
of violence” as defined by 18 U.S.C.
§924(c)(3)(A), and therefore that the petitioner is not
entitled to relief in the district court. The court will
dismiss his petition.
Armed Career Criminal Act, 18 U.S.C. §922(e)(1), is part
of the federal statute that imposes penalties for gun
offenses. 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.
Similar Language in 18 U.S.C.
petitioner in this case wasn’t sentenced under the
Armed Career Criminal Act, so the reasoning in
Johnson does not provide him with direct relief. He
argues, however, that the court should compare the language
of the ACCA’s residual clause-the language the Supreme
Court found unconstitutionally vague-with the language of the
statutes under which his sentence was enhanced, 18 U.S.C.
§§924(c)(1)(A) and 924(c)(3)(B), and find that it,
too, is unconstitutionally vague.
record shows that the petitioner was convicted of one count
of armed bank robbery, 18 U.S.C. §2113(a), and one count
of using a firearm in relation to a crime of violence (the
bank robbery), 18 U.S.C. §924(c)(1)(A). Section
924(c)(1)(A) provides that a defendant convicted of using or
carrying a firearm during and in relation to “any crime
of violence or drug trafficking crime” is subject to a
mandatory minimum sentence of five years-seven if the
defendant brandished the firearm, and ten if the firearm was
discharged. Section 924(c)(3) defines “crime of
violence” for the purpose of those sentence
enhancements. It states:
For the purposes of this subsection the term “crime of
violence” means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the court of committing the offense.
the second definition-the one in 924(c)(3)(B)-that the
petitioner argues suffers from the same constitutional