United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
petitioner, Eriberto Gonzalez, filed this petition pursuant
to 28 U.S.C. § 2255 on February 8, 2016, seeking to
vacate, set aside, or correct his sentence pursuant to
Johnson v. United States, 135 S.Ct. 2251 (2015).
(Docket #1). Since that time, on August 3, 2016, the case has
been reassigned to this branch of the Court for disposition.
Gonzalez pleaded guilty to the offense of Possession with the
Intent to Distribute 500 Grams or More of Cocaine While on
Pretrial Release in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B) and 18 U.S.C. § 3147(1). (Docket
#15). He was sentenced to 96 months imprisonment on November
26, 2013. (Docket #21, #22). Because Mr. Gonzalez had two
prior convictions for controlled substance offenses, he
qualified for the Career Offender enhancement under U.S.S.G.
petitioner may avail him or herself of relief under Section
2255 only if he/she can show that there are “flaws in
the conviction or sentence which are jurisdictional in
nature, constitutional in magnitude or result in a complete
miscarriage of justice.” Boyer v. United
States, 55 F.2d 296, 298 (7th Cir. 1995), cert.
denied, 116 S.Ct. 268 (1995). Section 2255 is limited to
correcting errors that “vitiate the sentencing
court's jurisdiction or are otherwise of constitutional
magnitude.” Guinan v. United States, 6 F.3d
468, 470 (7th Cir. 1993), citing Scott v. United
States, 997 F.2d 340 (7th Cir. 1993).
Gonzalez claims that his sentence is invalid because Judge
Randa, when sentencing Mr. Gonzalez for the offense described
above, found that he was eligible for an enhanced sentence as
a career offender under Section 4B1.1 of the United States
Sentencing Guidelines. (Docket #1). That section of the
Guidelines provides that a defendant is a career offender if:
(1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony
convictions of either a crime of violence
or a controlled substance offense. U.S.S.G. §
4B1.1(a). Section 4B1.2(a) defines the term “crime of
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
U.S.S.G. § 4B1.2.
26, 2015, the Supreme Court held that the residual clause of
the Armed Career Criminal Act-which contains identical
language to that which is quoted above-was void for
vagueness. See Johnson, 135 S.Ct. at 2254. Since
then, the Supreme Court has clarified that Johnson
announced a new substantive rule of constitutional law that
is retroactive to cases on collateral review. See Welch
v. United States, 136 S.Ct. 1257, 1265 (2016). Whether
Johnson applies retroactively to cases implicating
the Sentencing Guidelines, however, is currently under review
in the Seventh Circuit. See United States v.
Gillespie, No.15-1686; United States v. United
States v. Hurlburt, No. 14-3611; Untied States v.
Rollins, No. 13-1731; see also United States v.
Pawlak, No. 15-3566 (6th Cir. May 13, 2016) (finding
that the residual clause to section 4B1.2(a)(2) of the
Sentencing Guidelines is unconstitutionally vague in light of
Gonzalez invokes Johnson by claiming that his prior
offenses fall within the residual clause of the guidelines.
(Docket #1). However, Mr. Gonzalez ignores the fact that he
was sentenced as a career offender because he had two prior
felony convictions for controlled substance offenses
under 4B1.2(b). In other words, Mr. Gonzalez qualified for a
sentence enhancement under the career offender provision in
the Sentencing Guidelines, not the ACCA, and his status as a
career offender was based on his prior controlled substance
offenses, not the residual clause for crimes of violence.
And, because Johnson invalidated the residual clause
of the Armed Career Criminal Act, Mr. Gonzalez is not
entitled to relief, and his petition must be dismissed.
under Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Mr. Gonzalez must make a
“substantial showing of the denial of a constitutional
right” by establishing 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 citations
omitted). Further, when the Court has denied relief on
procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition
states valid claim of the denial of a constitutional
right” and that “the district court was correct
in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). As the Court discussed above,
reasonable jurists could not reasonably debate Mr.
Gonzalez's career-offender status in light of his two
previous controlled substance offenses, despite the Supreme
Court's holding in Johnson. As a consequence,
the Court is compelled to deny a certificate of appealability
as to the petition.
the Court closes with some information about the actions that
Mr. Gonzalez may take if he wishes to challenge the
Court's resolution of this case. This order and the
judgment to follow are final. A dissatisfied party may appeal
this Court's decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal
within 30 days of the entry of judgment. See Fed. R.
App. P. 3, 4. This Court may extend this deadline if a party
timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover,
under certain circumstances, a party may ask this Court to
alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal
Rule of Civil Procedure 60(b). Any motion under Federal Rule
of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. The Court cannot extend this deadline.
See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the
entry of the judgment. The Court cannot extend this deadline.
See Fed. R. Civ. P. 6(b)(2). A party is expected to
closely review all applicable rules and determine what, if
any, further action is appropriate in a case.
IT IS ORDERED that, the Court having determined that Mr.
Gonzalez's motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. 2255 (Docket #1) is not
affected by ...