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Cross v. United States

United States District Court, E.D. Wisconsin

May 30, 2017

DE'ANGELO CROSS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          J.P. Stadtmueller U.S. District Judge.

         On November 9, 2015, Petitioner De'Angelo Cross (“Cross”) filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Docket #1). When this matter was reassigned to this branch of the Court in August 2016, the Court determined that it should be stayed pending resolution of several relevant appeals before the Seventh Circuit relating to the effect of Johnson v. United States, 135 S.Ct. 2551 (2015), on the petition. (Docket #9). Also at that time, another pertinent case, Beckles v. United States, No. 15-8544, was pending in the Supreme Court. (Docket #10 at 1).

         Beckles was decided on March 6, 2017. Beckles v. United States, 137 S.Ct. 886 (2017). After that decision was issued, the parties sought to lift the stay in this case and brief how the disposition in Beckles affects Cross' motion. That briefing completed, the Court now turns to considering the merits of Cross' motion. For the reasons stated below, the Court finds that both Beckles and Cross' collateral attack waiver in his plea agreement preclude his claims and, as a result, his motion must be denied.

         1. BACKGROUND

         In the underlying criminal case, Cross was convicted of four counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (2), and one count of use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1). He was sentenced as a career offender under the U.S. Sentencing Guidelines, which elevated his sentencing range from 130-162 months to 188-235 months. The Court imposed a sentence of 220 months of incarceration.

         The Guidelines provide that those who qualify as “career offenders” must be given certain offense level and criminal history category increases. U.S.S.G. § 4B1.1(b). A defendant is a career offender if (1) he was at least eighteen years old at the time he committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. Id. § 4B1.1(a). At the time Cross was sentenced, the term “crime of violence” as used in the Guidelines was defined as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is 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.” Id. § 4B1.2(a) (emphasis added). The italicized portion of this definition is known as the “residual” clause.[1]

         At the time of Cross' sentencing in 2000, adherence to the Guidelines was mandatory. The Supreme Court in United States v. Booker, 543 U.S. 220, 233 (2005), found that this practice was unconstitutional. Since Booker, the Guidelines must be considered in fashioning sentences but can be departed from under appropriate circumstances. Peugh v. United States, 133 S.Ct. 2072, 2083 (2013).

         In 2015, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Johnson, 135 S.Ct. at 2560. The ACCA defines a “violent felony” as “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 physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). Notably, the emphasized portion of this definition is identical to the analogous clause in the career-offender Guideline, U.S.S.G. § 4B1.2(a)(2), and it is also referred to as the “residual” clause. The Johnson Court found that the ACCA's residual clause is unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment. Johnson, 135 S.Ct. at 2560.

         In 2015, Cross filed the instant motion. According to him, because Johnson found that the ACCA's residual clause is unconstitutionally vague, the same result should obtain for the identically worded residual clause in the Guidelines. See United States v. Edwards, 836 F.3d 831, 835 n.2 (7th Cir. 2016) (observing that cases analyzing “violent felony” under the ACCA and “crime of violence” under the Guidelines are interchangeable). Initially, the government agreed with him, but argued that Cross was not entitled to relief because he had waived his right to appellate relief in his plea agreement and because Johnson is not retroactively applicable to the Guidelines. See (Docket #6). Counsel then entered on Cross' behalf and argued against the government's positions. See (Docket #7).

         After Cross' motion was fully briefed, the Court stayed the case pending resolution of several pertinent appeals, as noted above. Most salient here is the decision in Beckles, which held that the residual clause found in the career-offender Guideline, unlike the ACCA, is not susceptible to vagueness challenges. Beckles, 137 S.Ct. at 897. Key to the Court's analysis was the fact that the ACCA represented a legislative pronouncement fixing the permissible range of sentences for qualifying conduct. Id. at 892. By contrast, the post-Booker, advisory Guidelines “merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.” Id. Because judicial discretion is part and parcel of the Guidelines, the constitutional concerns that animated the Johnson Court-providing notice to defendants of what conduct will subject them to enhanced penalties under the ACCA and preventing arbitrary application of the ACCA's standards-are not implicated by the Guidelines. Id.

         In her concurrence, Justice Sotomayor contended that the Guidelines should be open to vagueness challenges because of their centrality in the sentencing process. Id. at 900 (Sotomayor, J., concurring in the judgment). More important to this case, however, is her suggestion that “[t]he Court's adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in [Booker]-that is, during the period in which the Guidelines did ‘fix the permissible range of sentences'-may mount vagueness attacks on their sentences.” Id. at 903 n.4 (internal citations omitted). Justice Sotomayor expressed no firm view on the merit of any such challenge. Id. (“That question is not presented by this case and I, like the majority, take no position on its appropriate resolution.”).

         2. DISCUSSION

         2.1 The Mandatory Guidelines are Not Susceptible to Vagueness Challenges

         It is in that very analytical gap the Court now finds itself. Cross argues that the mandatory Guidelines under which he was sentenced are invalid, based on the mandatory-advisory contrast set up in Beckles and the reasoning he borrows from the now-abrogated United States v. Hurlburt, 835 F.3d 715, 719-25 (7th Cir. 2016) (en banc), in which the Seventh Circuit held that the advisory Guidelines were void for vagueness. (Docket #12 at 3-4). In Cross' view, the mandatory Guidelines “‘were the practical equivalent of a statute, '” and therefore can be subject to vagueness challenges. Id. at 5 (quoting Hawkins v. United States, 706 F.3d 820, 822 (7th Cir. 2003)). Indeed, as Cross points out, the government argued in Beckles itself that the mandatory Guidelines were problematic because they too strongly cabined the sentencing court's discretion. Id.

         The government responds that since Beckles did not decide whether the mandatory Guidelines are open to vagueness challenges, the Court must look to pre-existing authority from the Seventh Circuit. (Docket #13 at 7). Those cases held that neither the advisory nor the mandatory Guidelines were subject to such challenges. United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012); United States v. Brierton, 165 F.3d 1133 (7th Cir. 1999). Additionally, the government downplays its purported concession in Beckles that the mandatory Guidelines are vague, noting that it should not be held to have conceded legal points on which it was simply mistaken. (Docket ...


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