United States District Court, E.D. Wisconsin
ERIC S. SCANLAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER GRANTING IN PART AMENDED PETITION (DKT. NO.
11), AND COMMITTING TO AMENDING THE PETITIONER'S JUDGMENT
OF CONVICTION IN CASE NO. 10-CR-25, AS REFLECTED IN THIS
PAMELA PEPPER UNITED STATES 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. §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.
§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. §3E1.1(b). Id. Finally,
the government agreed to recommend a sentence within the
applicable guideline range. Id. at 7.
September 30, 2010, 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. §2K2.1. Section 2K2.1(a)(2) of the 2010
version of the Guidelines manual reflects 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, §2K2.1(a)(4)
stated that his base offense level would be 20. Application
Note 1 to §2K2.1 stated that the definition of
"crime of violence" for the purposes of
§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, §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 §2K2.1(a)
predicate “crimes of violence” his conviction for
first-degree residential burglary under California Penal Code
§ 459. Case No. 10-cr-25, Dkt. No. 33 at 4-5. He argued
that burglary under §459 was not an enumerated crime of
violence under the §4B1.2 definition. Id. The
Seventh Circuit disagreed, and affirmed the sentence.
Id. at 7-8.
April 22, 2013, the petitioner filed the current motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§2255. Scanlan v. United States, Case No.
13-cv-440, Dkt. No. 1. The petition asserted two grounds:
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 §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 §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. At that time, 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. Id.
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 §4B1.2 (under which
predicate offenses for the purposes of §2K2.1 are
defined) was unconstitutionally vague.
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 §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 §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 § 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.
petitioner has raised this issue in a collateral attack under
28 U.S.C. §2255, and the 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.
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
the petitioner's California burglary conviction was not a
valid predicate offense, then under U.S.S.G.
§2K2.1(a)(4), he 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 gave
the petitioner, a top-of-the-guidelines sentence would have
been sixty months-five years, almost a year less than it
appears he already has served.
these circumstances, on September 25, 2016, the court lifted
the stay Judge Randa had imposed, and ordered that by the end
of the day on October 5, 2016, the respondent should file a
statement with the court, indicating whether it would oppose
the court entering an amended ...