United States District Court, E.D. Wisconsin
ORDER LIFTING STAY (DKT. NO. 2) AND ORDERING THAT BY
FRIDAY, OCTOBER 21, 2016, THE PARTIES FILE STATEMENTS
REGARDING THEIR POSITIONS ON A FURTHER STAY OF THE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
2, 2009, the late Judge Rudolph T. Randa sentenced the
petitioner to serve three-hundred forty-six months in
custody, after his guilty plea to three charges of bank
robbery in violation of 18 U.S.C. §2113(a) and (d) and
one charge of using, carrying and brandishing a firearm
during a crime of violence in violation of 18 U.S.C.
§§924(c)(1)(A)(ii) and 2. Case No. 08-cr-134, at
Dkt. Nos. 66, 67. On December 12, 2008, the defendant entered
his guilty plea. Id. at Dkt. No. 44. The plea
agreement provided for an adjusted offense level of 32 (the
defendant was free to challenge one enhancement), minus 2
levels for minor role and 3 levels for acceptance of
responsibility, for the bank robbery counts. Id. at
Dkt. No. 42 at 6-7. The parties agreed that there was a
mandatory minimum seven-year sentence for the firearm count,
which had to run consecutively to any guidelines sentence,
id. at 8; each side was free to recommend whatever
guidelines sentence it thought appropriate, id.
Randa imposed a guidelines sentence of 262 months on the bank
robbery counts, and the mandatory minimum sentence of
eighty-four months on the gun count to run consecutively, for
a total sentence of 346 months. Id. at Dkt. Nos. 66,
67. The court minutes from the sentencing indicate that Judge
Randa “addresse[d] the defendant's several
objections to the PSR establishing the defendant as a career
offender, ” id. at Dkt. No. 66, p. 2, and that
he concluded that the defendant qualified as a career
offender, id.at p. 3.
petitioner appealed Judge Randa's sentence to the Seventh
Circuit. Id. at Dkt. No. 68. On appeal, he did not
challenge Judge Randa's conclusion that he qualified as a
career offender. Id. at Dkt. No. 106, p. 5. The
Seventh Circuit reversed and remanded on other grounds.
Id. at ¶ 5-6.
remand, Judge Randa re-sentenced the petitioner to serve 216
months on the bank robbery counts and eighty-four months
(consecutive) on the gun count, for a total revised sentence
of 300 months. Id. at Dkt. Nos. 116, 117. The
petitioner appealed that sentence, as well, id. at
Dkt. No. 118, but the Seventh Circuit dismissed the appeal,
id. at Dkt. No. 131.
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. On November 2, 2015, the
petitioner asked Judge Randa to appoint an attorney to assist
him in figuring out whether the Johnson decision
might afford him a basis for challenging his sentence.
Id. at Dkt. No. 135. On January 19, 2016, the
Seventh Circuit authorized the petitioner to file a second or
successive motion under 28 U.S.C. §2255, Id. at
Dkt. No. 136, and on January 26, 2016, Judge Randa granted
the petitioner's request for appointment of counsel,
id. at Dkt. No. 137. The petitioner, represented by
counsel, filed this petition on April 1, 2016. Id.
at Dkt. No. 139; Case No. 16-cv-403, Dkt. No. 1.
petition alleges that one of the predicate offenses which
qualified him as a career offender under U.S.S.G. §4B1.1
was attempted burglary, and that the only way that attempted
burglary could qualify as a predicate offense was under the
residual clause in U.S.S.G. §4B1.2(a)(2), which defined
a crime of violence as an offense that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” Dkt. No. 1 at 3. The
petition argued that the Supreme Court's decision in
Johnson had invalidated the residual clause of
§4B1.2(a)(2), and thus that the petitioner should not
have been sentenced as a career offender. Id. at
April 21, 2016, Judge Randa entered an order staying the
§2255 proceedings because there were several cases
pending before the Seventh Circuit which could further impact
the resolution of the issue raised in the petition. Dkt. No.
24. Judge Randa issued the stay 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 §4B1.2 was unconstitutionally vague.
petitioner has raised the invalidity of the residual clause
in a collateral attack under 28 U.S.C. §2255. While the
United States Supreme Court has not yet ruled on whether its
decision in Johnson applies retroactively to
collateral attacks on sentencing enhancements predicated on
the §4B1.2 residual clause, it has accepted certiorari
on that question. Beckles v. United States, 136
S.Ct. 2510 (June 27, 2016). In at least one other case before
this court, the parties have asked the court to stay briefing
on this question until the Supreme Court issues its decision
in Beckles. See United States v. Lipsey,
Case No. 16-cv-776 at Dkt. No. 6.
petition asserts that had the petitioner not been subject to
the career offender enhancement, his offense level would have
been 29 in criminal history category V, which would have
yielded a guidelines range of 140 to 175 months-eleven years
and eight months to fourteen years and seven months. Case No.
16-cv-403, Dkt. No. 1 at 3-4. The petitioner was sentenced on
July 2, 2009, and it appears that he may have been in federal
custody since approximately April 30, 2008. Case No.
08-cr-134, Dkt. No. 3. So it appears that he has served
approximately eight years and five months.
these circumstances, the court ORDERS as follows:
court ORDERS that the April 21, 2016 stay imposed by Judge
Randa is LIFTED. Dkt. No. 2. The court ORDERS that, no later
than the end of the day on Friday, October 21, 2016, the
parties each shall file a statement with the court, informing
the court whether they wish the court to further stay
proceedings pending the Supreme Court's decision in
Beckles. If the parties are in agreement on their
positions, they may file a single statement. If the parties
are not in agreement, the court will schedule a hearing to
hear argument on whether it should further stay proceedings.