United States District Court, E.D. Wisconsin
ERIC S. SCANLAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Scanlan, Petitioner, represented by Brian T. Fahl, Kravit
Hovel & Krawczyk SC.
States of America, Respondent, represented by Brian J.
Resler, United States Department of Justice & Jonathan H.
Koenig, United States Department of Justice.
ORDER LIFTING JANUARY 26, 2016 STAY (DKT. NO. 24),
AND ORDERING THE RESPONDENT TO INFORM THE COURT BY DAY'S
END ON OCTOBER 5, 2016 WHETHER IT OPPOSES THE COURT AMENDING
THE PETITIONER'S JUDGMENT OF CONVICTION
PEPPER, District Judge.
September 30, 2010, the late Judge Rudolph T. Randa sentenced
the petitioner to serve ninety-three (93) months in custody,
after his guilty plea to the charge of being a felon in
possession of a firearm under 18 U.S.C. Â§922(g)(1). Case No.
10-cr-25, at Dkt. Nos. 20, 21. On June 10, 2010, the
defendant entered his guilty plea to the felon-in-possession
charge. Id. at Dkt. No. 19. The plea agreement
provided that the base offense level for the crime of
conviction was level 24, pursuant to U.S.S.G. Â§2K2.1(a)(2)
(although it left the defendant free to argue for a lesser
offense level). Id. at Dkt. No. 18 at 6. The
agreement also provided that the government would recommend a
two-level decrease to that offense level for acceptance of
responsibility, and also would (under appropriate
circumstances) move for an additional one-level decrease
under U.S.S.G. Â§3E1.1(b). Id . Finally, the
government agreed to recommend a sentence within the
applicable guideline range. Id. at 7.
September 30, 2016, Judge Randa sentenced the defendant to
the 93-month sentence. Id. at Dkt. No. 20. The court
minutes from the sentencing indicate that Judge Randa
sentenced the defendant to serve 96 months, but gave him
three months' credit for time he'd served in state
custody. Id . The minutes also indicated that the
defendant's criminal history category was VI.
Id. at 3. Finally, the minutes indicated that while
the court could have imposed a sentence above the guidelines
range, it instead imposed the top-of-the-range 96-month
sentence. Id. at 4.
sentencing table in the 2010 Sentencing Guidelines Manual
shows that an offense level of 21 (the level 24 the
government recommended in the plea agreement, minus 3 levels
for acceptance of responsibility) in criminal history
category VI yielded a sentencing range of 77 to 96 months; a
sentence of 96 months was the highest sentence available in
plea agreement indicated, the relevant sentencing guideline
was U.S.S.G. Â§2K2.1. Section 2K2.1(a)(2) of the 2010 version
of the Guidelines manual reflect that, if a defendant was
convicted of being a felon in possession of a firearm It says
that if the defendant committed any part of the instant
offense "subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense, " the base offense level for
beginning the guidelines calculations was 24. If the same
defendant had only one qualifying prior, Â§2K2.1(a)(4) stated
that his base offense level would be 20. Application Note 1
to Â§2K2.1 stated that the definition of "crime of
violence" for the purposes of Â§2K2.1(a) "has the
meaning give that term in 4B1.2(a) and Application Note 1 of
the Commentary to 4B1.2." In the 2010 manual, Â§4B1.2
defined "crime of violence" as any offense that
"has as an element the use, attempted use, or threatened
use of physical force against the person of another, or... 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."
petitioner appealed Judge Randa's sentence to the Seventh
Circuit. Id. at Dkt. No. 23. He argued that Judge
Randa erred in including as one of the Â§2K2.1(a) predicate
"crimes of violence" his conviction for
first-degree residential burglary under California Penal Code
Â§ 459. Case No. 10-cr-25, Dkt. No. 33 at 4-5. He argued that
burglary under Â§459 was not an enumerated crime of violence
under the Â§4B1.2 definition. Id . The Seventh
Circuit disagreed, and affirmed the sentence. Id. at
April 22, 2013, the petitioner filed the current petition.
Case No. 13-cv-440, Dkt. No. 1. The petition asserted that
the petitioner's lawyer had provided ineffective
assistance of counsel and that his sentence violated the
Fourteenth Amendment Due Process Clause. Id . Judge
Randa appointed counsel to represent the petitioner, Dkt. No.
6, and on October 11, 2013, counsel filed an amended
petition, Dkt. No. 11. The amended petition retained the
ineffective assistance of counsel claim, but also argued that
the district court had improperly enhanced the
petitioner's sentence under Â§2K2.1(a)(2) under the
Supreme Court's decision in Descamps v. United
States, 133 S.Ct. 2276 (2013), which held that a
conviction for burglary under Â§459 of the California Penal
Code could not serve as a predicate for enhancing a
defendant's sentence under the Armed Career Criminal Act.
Id . Judge Randa issued a briefing schedule, Dkt.
No. 12, and the final brief under that schedule was filed on
February 19, 2014, Dkt. No. 17.
26, 2015, the United States Supreme Court decided Johnson
v. United States, 135 S.Ct. 2551 (2015), in which it
held that the residual clause of the Armed Career Criminal
Act was unconstitutionally vague. Judge Randa had not yet
decided this petition, and the parties jointly asked him to
give them time to submit briefs on the impact of the Johnson
decision on the second issue the amended petition had raised.
Dkt. No. 20. Judge Randa granted that request. After the
parties had finished their briefing, however, the court
stayed further proceedings, because there were several cases
pending before the Seventh Circuit which could further impact
the resolution of the petitioner's second issue. Dkt. No.
24. The court entered that stay on January 26, 2016.
Randa stayed the case pending the Seventh Circuit's
rulings in United States v. Hurlburt/Gillespie, ___ F.3d
___, 2016 WL 4506717 (7th Cir., August 29, 2016) and
United States v. Rollins, ___ F.3d ___, 2016 WL 4587028 (7th
Cir., August 29, 2016). The Seventh Circuit now has decided
those cases. Particularly relevant to this case is the
court's decision in Hurlburt, in which it concluded that
the residual clause of the definition of "crime of
violence" in Â§4B1.2 (under which predicate offenses for
the purposes of Â§2K2.1 are defined) was unconstitutionally
defendant was sentenced five years and 391 days ago. He was
sentenced to serve seven years and eleven months-the high end
of the guideline range if, in fact, his starting offense
level was 24, based on his having two prior convictions for
"crimes of violence" as defined by Â§4B1.2. Since
his conviction-in fact, since the date he filed this
petition-the United States Supreme Court and the Seventh
Circuit have issued a series of decisions which,
cumulatively, have invalidated the portion of the Â§4B1.2
"crime of violence" definition which includes
crimes which "otherwise involves conduct that presents a
serious potential risk of physical injury to another."
In its decision affirming the petitioner's sentence on
appeal, the Seventh Circuit concluded that his prior
conviction for burglary under California Penal Code Â§ 459
qualified as a crime of violence under the very residual
clause that it now has found unconstitutional. Case No.
10-cr-25, Dkt. No. 33 at 8.
court concedes that the petitioner has raised this issue in a
collateral attack under 28 U.S.C. Â§2255, and that the Supreme
Court has not yet ruled on whether its decision in Johnson
applies retroactively to collateral attacks on sentencing
enhancements predicated on the Â§4B1.2 residual clause. But it
has accepted certiorari on that question. Beckles v.
United States, 136 S.Ct. 2510 (June 27, 2016). And this
circuit's law, binding on this court, has invalidated the
residual clause which formed the basis for one of the
predicate offenses used to enhance the petitioner's
petitioner's California burglary conviction was not a
valid predicate offense, then under U.S.S.G. Â§2K2.1(a)(4), he
would have had only one predicate conviction, and his base
offense level would have been 20, not 24. Subtracting the
three levels for acceptance of responsibility called for in
the plea agreement, he would have had an adjusted offense
level of 17, in criminal history category VI, which yields
(under the 2010 Guidelines Manual) a sentencing range of 51
to 63 months. Subtracting from the top of that range the
three months' credit Judge Randa ...