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Cannon v. United States

United States District Court, W.D. Wisconsin

October 11, 2016

JERRY L. VAN CANNON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge

         Petitioner 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 resentencing.

         Petitioner 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.

         BACKGROUND

         In 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.)

         In 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.

         OPINION

         A. Johnson Claim

         At the 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.)

         In 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).

         The 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, . . . that--
(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 ...

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