United States District Court, E.D. Wisconsin
LARRY W. GREEN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Order ORDER GRANTING MOTION TO VACATE, SET ASIDE OR
CORRECT SENTENCE PURSUANT TO 28 U.S.C. §2255 (DKT. NO.
1), AND REDUCING SENTENCE IN UNITED STATES V. GREEN, CASE NO.
11-CR-47 TO TIME SERVED
PEPPER United States District Judge
April 12, 2011, a grand jury returned a superseding
indictment, charging defendant Larry Green and others with
conspiracy to possess with intent to distribute heroin, as
well as with substantive counts of possession of heroin with
intent to distribute. United States v. Green, et
al., Case No. 11-cr-47, Dkt. No. 14. Previously, on
February 25, 2011, Magistrate Judge Patricia J. Gorence had
ordered defendant Green detained pending trial. Dkt. Nos. 7,
Green signed a plea agreement on May 5, 2011, in which he
agreed to plead guilty to one substantive count of possession
of heroin with intent to distribute. Dkt. No. 12. The plea
agreement provided that the base offense level under the
Sentencing Guidelines would be 22 (pursuant to U.S.S.G.
§2D1.1(c)(9), and that the government would recommend a
three-level reduction in that offense level for acceptance of
responsibility. Id. at 12. The agreement left both
parties free to make any recommendation they wished with
regard to the sentence. Id. at 13.
Clevert imposed sentence on September 16, 2011. Dkt. No. 90.
While the presentence investigation report recommended a base
offense level of 22 based on the defendant's relevant
offense conduct involving 40 and 60 grams of heroin, the
parties stipulated at sentencing that the actual amount the
government could prove without calling informants as
witnesses was 50 grams. Dkt. No. 90 at 1. The court also
sustained the defendant's objection to the presentence
writer's recommendation in paragraph 37 of the
presentence report that the court enhance the defendant's
criminal history level by two under §4A1.1(d); because
the court couldn't tell when the defendant had begun his
drug dealing, it could not conclude that he'd been on
some sort of supervision when he committed the offense of
conviction. These findings resulted in the defendant's
adjusted offense level being 17, and his criminal history
category being V, with a sentencing range, under the 2010
Guidelines manual, of 46-57 months.
findings, however, did not impact the sentence Judge Clevert
imposed, because the government argued, and the presentence
writer agreed, that the defendant qualified as a career
offender under U.S.S.G. §4B1.1. Id. at 2.
Specifically, the defendant had convictions in Illinois for
armed robbery and residential burglary. Green v. United
States, 16-cv-502 at dkt. no. 9, p. 2. The defendant did
not contest that these convictions qualified him as a career
offender. United States v. Green, 11-cr-47, dkt. no.
90 at 2. The career offender enhancement increased the
defendant's offense level to 29, and his criminal history
category to VI, with a resulting sentencing range of 151 to
188 months. Id. Judge Clevert imposed a
below-guidelines sentence of 120 months. Id., Dkt.
No. 97 (criminal judgment, signed October 5, 2011).
years and six months later, the petitioner filed his motion
under §2255. Green v. United States, 16-cv-502,
dkt. no. 1. He pointed out that in 2015, the Supreme Court
had decided Johnson v. United States, in which it
held that the residual clause in the Armed Career Criminal
Act was unconstitutionally vague. Id. at 1; see
Johnson v. United States, 135 S.Ct. 2551 (2015). He
argued that one of his predicate career offender convictions
fell under the residual clause, and he asked the court to
appoint counsel to help him flesh out that argument.
Id. The court believes that the defendant was
referring to his 2007 conviction in Lake County, Illinois for
government now has filed a response, agreeing with the
petitioner that, given changes in federal law in the last
three to four years, the defendant no longer qualifies as a
career offender. The court agrees.
Johnson decision found that the residual clause of
the Armed Career Criminal statute was
unconstitutionally vague. The petitioner's sentence
wasn't enhanced under the Armed Career Criminal statute;
it was enhanced under the career offender guideline, U.S.S.G.
§4B1.1. The career offender guideline states that if a
defendant was at least eighteen years old at the time he
committed the federal offense of conviction, the federal
offense of conviction was a felony that was either a crime of
violence or a controlled substance offense, and the defendant
“has at least two prior felony convictions of either a
crime of violence or a controlled substance offense, ”
the defendant qualifies as a career offender, and the court
must enhance his sentence. U.S.S.G. §4B1.1(a). Section
4B1.2(a) defines “crime of violence” for the
purposes of determining whether a defendant's prior
convictions count under the career offender guideline.
Section 4B1.2(a)(2) includes in the definition of
“crime of violence” a crime that “is
burglary of a dwelling . . . .”
government notes in its response, in 2010, the United States
Supreme Court held in Taylor v. United States, 495
U.S. 575, 598 (1990) that “burglary” (under the
Armed Career Criminal Act's definition of “crime of
violence”) meant burglary which “contain[ed] at
least the following elements: an unlawful or unprivileged
entry into, or remaining in, a building or other structure,
with intent to commit a crime.” Three years later, the
Court decided Descamps v. United States, 133 S.Ct.
2276 (2013). In Descamps, the court considered
whether a defendant who had a prior conviction for burglary
under California's burglary statute qualified as an armed
career criminal. The court concluded that a conviction under
California's burglary statute did not qualify as a
“crime of violence” under the ACCA, because the
California burglary statute did not include the element of
unlawful breaking or entering-an element of the
“generic” burglary definition the Court had
discussed in Taylor. Descamps, 133 S.Ct. at
2285-86. Finally, in 2016, the Supreme Court concluded that a
conviction for burglary under Iowa's burglary statute was
not a “crime of violence” for ACCA purposes,
because while the Taylor definition of
“generic” burglary required breaking and entering
into buildings or other structures, Iowa's burglary
statute also included breaking and entering vehicles.
Mathis v. United States, 136 S.Ct. 2243, 2250-51
(2016). Like the California statute in Descamps,
Iowa's burglary statute was broader than the
“generic” definition of burglary in
Taylor, and so a conviction under that statute did
not qualify as a “crime of violence” for the
purposes of enhancing a sentence under the ACCA. The Seventh
Circuit, as the government points out, followed this same
reasoning in United States v. Edwards, 836 F.3d 831,
837 (7th Cir. 2016), when it found that a conviction under
Wisconsin's burglary statute did not qualify as a crime
of violence under the career offender guideline's
definition, because Wisconsin's burglary statute included
breaking into railroad cars and ships.
noted earlier, one of the predicate convictions that caused
the petitioner to be classified as a career offender was a
2007 conviction for residential burglary under Illinois law.
The government explains that at the time the petitioner was
convicted of that crime, 720 ILCS 5/19-3 was the applicable
burglary statute. Dkt. No. 9 at 5. That statute defined
burglary as unlawful entry into a “dwelling.” 720
ILCS 5/2-6. But its reference to “other living
quarters” also incorporated 720 ILCS 5/19-1, which
covered under the definition of burglary unlawful entry into
housetrailers, watercraft, aircraft, cars and railroad cars.
Id. (citing United States v. Haney, 840
F.3d 472 (7th Cir. 2016). Thus, the government indicates, the
Illinois burglary statute-like the Iowa statute in
Mathis and the Wisconsin statute in
Edwards-is broader than the “generic
burglary” statute referenced in Taylor.
Because a defendant could be convicted of “residential
burglary” under the Illinois statute without ever
entering a residence or building, the government agrees, a
conviction under the Illinois residential burglary statute
cannot serve as a predicate for career offender enhancement
under U.S.S.G. §4B1.1.
court finds that the petitioner should not have had his
sentence enhanced under the career offender guideline,
because he had only one-not two-“crimes of
violence” prior to his conviction on the federal
charges. As the court indicated above, if the petitioner had
not been classified as a career offender, his adjusted
offense level would have been 17-a base offense level of
20 (for having between 40 and 60 grams of heroin, pursuant to
U.S.S.G. §2D1.1(c)(9), minus three levels for acceptance
of responsibility under U.S.S.G. §3E1.1(a) (pursuant to
paragraph 17 of the plea agreement) and §3E1.1(b)
(pursuant to paragraph 17 of the plea agreement, plus the
fact that the defendant's adjusted offense level was
greater than 16)). The petitioner's criminal history
category, had he not been classified as a career offender,
would have been category V, because he had eleven (11)
criminal history points. Level 17 in criminal history
category V yields, under the 2010 Guidelines Manual, a
sentencing range of 46 to 57 months, or three years and ten
months to four years and nine months.
Clevert sentenced the defendant on September 16, 2011.
United States v. Green, Case No. 11-cv-47, dkt. no.
90. He signed the judgment on October 5, 2011. Id.
at dkt. no. 97. As of the date the court writes this order,
it has been 2, 204 days since Magistrate Judge Gorence
ordered the petitioner detained-six years, twelve days. It
has been 1, 977 days since the sentencing date-five years,
four months and twenty-eight days. It has been 1, 958 days
since the date Judge Clevert signed the judgment-five years,
four months, and eight days. The high end of the applicable
guideline range is fifty-seven months-four years and nine
months (and Judge Clevert sentenced the petitioner below the
applicable guideline range). The petitioner has been in
custody for over six years, and was sentenced over five years
ago. The court finds that the petitioner has served his time,
and will issue an amended judgment immediately that will
reflect a sentence of time served.
court GRANTS the petitioner's motion to
vacate, correct or set aside sentence. Green v. United
States, Case No. 16-cv-502, Dkt. No. 1. The court
ORDERS that the career offender enhancement
does not apply to the sentence imposed in United States
v. Green, Case No. 11-cr-47. The court
ORDERS that the petitioner's sentence in
United States v. Green, ...