United States District Court, W.D. Wisconsin
JERRY L. VAN CANNON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
BARBARA B. CRABB District Judge
Jerry L. Van Cannon has moved for post conviction relief
under 28 U.S.C. § 2255, contending that he was sentenced
improperly after he was convicted under 18 U.S.C. 922(g)(1)
of being a felon in possession of a firearm. At his 2009
sentencing he faced a potential sentence of “not more
than 10 years” that could be enhanced “to at
least fifteen years” if he had three prior convictions
for either a felony controlled substance offense or for
violent felonies. 18 U.S.C. § 924(e)(2).
Petitioner's sentence was enhanced to the minimum term of
15 years because he had one prior conviction for a serious
drug offense and four prior convictions for what appeared at
the time to be violent felonies, including three state court
convictions for second degree burglary. Now he contends that
under the Supreme Court's 2015 decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), his three
predicate sentences for burglary of a dwelling are not
qualifying convictions that can be used to enhance his
federal sentence. If he is correct, he would be entitled to
is correct about his two Iowa burglary convictions, but not
about his Minnesota conviction or his other two convictions.
They remain qualifying convictions that support his
sentencing as an armed career criminal. Accordingly, his
motion for post conviction relief must be denied.
2009, petitioner was sentenced in this court to a sentence of
15 years after he entered a plea of guilty to being a felon
in possession of a firearm, in violation of § 922(g)(1).
His sentence was increased under § 924(e), the penalty
provision of the Armed Career Criminal Act, 18 U.S.C. s
§ 921-31, after he was found to have had at least three
prior convictions for either felony controlled substance
offenses or violent felonies. Without the enhancement, his
sentence could not have exceeded ten years. (The sentencing
statement shows, erroneously, that petitioner was an armed
career criminal “under [U.S.S.G.] § 4B1.4(b),
” rather than under § 924(e), but this error does
not affect the analysis of his sentence.)
fact, petitioner had five previous convictions at the time of
his sentencing: one for a felony controlled substance
offense; a second for armed robbery; and the three for second
degree burglary in Iowa and Minnesota. If, as he contends,
the burglary convictions should not have been used as
enhancements, he would be entitled to resentencing without an
armed career criminal enhancement.
outset, I note that petitioner's claim may be barred
procedurally under 28 U.S.C. § 2255(f) because he did
not bring it within one year after his judgment of conviction
became final, as § 2255(f)(1) provides. However, under
§ 2255(f), a new filing period goes into effect for
petitioners asserting a right newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review. If petitioner's claim arose under
Johnson, as he thinks it does, his petition would be
timely under this subsection because he filed it within a
year of the decision in that case. (The statute sets out two
other circumstances in which the statute allows filing after
the first year has passed, but neither has any potential
relevance to this case.)
fact, petitioner's claim does not arise under
Johnson. In Johnson, the Court was
concerned with the what has been called the “residual
clause” in 18 U.S.C. § 924(e)(2)(B).
subsection reads in relevant part as follows, with the
residual clause italicized:
(B) The term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, . .
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of ...