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Boarden v. Williams

United States District Court, E.D. Wisconsin

August 23, 2017

LOUIS WILLIAMS, Respondent. Criminal No. 14-CR-61-3-JPS



         On June 23, 2017, Chauncey Boarden (“Boarden”), a federal prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the career-offender enhancement he was assessed under the U.S. Sentencing Guidelines. (Docket #1). The Court must screen Boarden's motion under Rule 4 of the Rules Governing Section 2254 Proceedings, which requires the Court to promptly examine the motion and dismiss it “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the petitioner is not entitled to relief.”[1]

         On July 25, 2014, Boarden pled guilty to a one-count information charging him with conspiracy to distribute heroin, in violation of 18 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and 2. On December 5, 2014, he was sentenced to 111 months of incarceration. In determining the range of imprisonment suggested by the U.S. Sentencing Guidelines, the Court found that Boarden was a “career offender” pursuant to U.S.S.G. § 4B1.1(b).

         The Guidelines provide that those who qualify as career offenders must be assessed certain offense level and criminal history category increases. Id. 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). In the instant petition, Boarden claims that in light of the Supreme Court's recent decision in Mathis v. United States, 136 S.Ct. 2243 (2016), and several decisions of state and district courts, the predicate offenses relied upon to impose his career-offender enhancement no longer qualify as such. Consequently, he believes he is entitled to resentencing without the enhancement.

         One initial problem arising from the nature of his petition can be quickly disposed of. Federal prisoners who seek to bring collateral attacks on their conviction or sentences must ordinarily bring an action under 28 U.S.C. § 2255, “the federal prisoner's substitute for habeas corpus.” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). However, a federal prisoner may petition under Section 2241 if his Section 2255 remedy “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). In re Davenport, 147 F.3d 605 (7th Cir. 1998), established three conditions for this exception to apply. Id. at 610-12. First, the prisoner must show that he relies on a “statutory-interpretation case, ” rather than a “constitutional case.” Rios, 696 F.3d at 640. Second, the prisoner must show that he relies on a retroactive decision that he could not have invoked in a timely Section 2255 motion. Id. “The third condition is that [the] sentence enhancement. . .have been a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding.” Id.; see also Davenport, 147 F.3d at 611 (a prisoner must show “a fundamental defect in his conviction or sentence”).

         Some courts have held that Section 2241 petitions raising Mathis concerns are proper. See, e.g., Homes v. True, Case No. 17-cv-0628-DRH, 2017 WL 3085803, at *2 (S.D. Ill. July 20, 2017). Here, the Court will assume without deciding that Boarden has properly invoked Section 2241 as the vehicle for his claims. Because the claims are ultimately without merit, this is the most expedient way to move toward resolution of this matter.

         The Court now turns to an evaluation of Boarden's claims. Boarden's petition attacks both of the predicate offenses cited in his revised presentence report as supporting the application of the career-offender Guideline enhancement. The first cited predicate conviction is for manufacture, distribution or delivery of cocaine, in violation of Wis.Stat. § 961.41(1)(cm)1r. The second is a conviction for robbery with threat of force, in violation of Wis.Stat. § 943.32(1)(b). His arguments as to each are distinct, so the Court will address them in turn.

         His first claim, which attacks his narcotics conviction, relies on the Mathis decision. In Mathis, the Supreme Court dealt with the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which, like the Guidelines career-offender provision that was applied to Boarden, calls for enhanced punishment when a defendant has previously been convicted of certain types and numbers of offenses. Determining whether the defendant's prior convictions constitute proper predicates requires application of either a “categorical” approach, in which the sentencing court compares the category of enhancing offenses with the statutory elements of the prior offenses, or-with respect to statutes having multiple alternative elements-requires a “‘modified categorical approach, '” in which the “sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis, 136 S.Ct. at 2248-49 (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)); Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).

         It is important to appreciate the limitations on the categorical approach. If the statutory definition of the purported predicate offense is the same as (or narrower than) the Guidelines definition-that is, a generic version of the crime in question-the offense can be counted. United States v. Edwards, 836 F.3d 831, 835 (7th Cir. 2016). But if the statute defines the offense more broadly than the Guidelines, the prior conviction does not count, “even if the defendant's actual conduct (i.e., the facts of the crime)” would fit within the Guidelines definition. Mathis, 136 S.Ct. at 2248.

         The Mathis Court confronted the question of whether the lower courts' use of the modified categorical approach was appropriate when the defendant had previously been convicted not under a statute that had multiple, alternative elements but rather under one that “list[ed] multiple, alternative means of satisfying one (or more) of its elements.” Mathis, 136 S.Ct. at 2248. It answered that question in the negative. Id. at 2253. Specifically, because the crime at issue (there, burglary) could be committed under the statute by different means than generic, common-law burglary, the lower court was not permitted to deploy the modified categorical approach. Id. In other words, the court could not save the burglary conviction by looking to charging papers and considering whether the defendant actually burglarized a building or dwelling, since the statute was nondivisible and categorically not a violent felony under the ACCA. See Id. at 2248-49, 2257-58.

         Boarden expends considerable effort arguing that his drug offense can no longer be considered a predicate after Mathis because Wisconsin includes the possibility of conviction based on delivery of cocaine, which is broader than the Guidelines definition of “controlled substance offense.” As used in the career-offender Guideline, that term means “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). Thus, Boarden is right that the Guideline on its face does not use the word “delivery.”

         Moreover, Boarden contends, Wisconsin defines “delivery” as “the actual, constructive or attempted transfer from one person to another of a controlled substance or controlled substance analog, whether or not there is any agency relationship.” Wis.Stat. § 961.01(6); State v. Pinkard, 706 N.W.2d 157, 595 (Wis. Ct. App. 2005). According to him, because there are many alternative means of “delivery” under Wisconsin law, including mere attempted delivery, this underscores the notion that the Wisconsin offense is broader than the definition of a controlled substance offense in the Guidelines. See Hinkle v. United States, 832 F.3d 569, 576 (5th Cir. 2016). Thus, his argument goes, his drug conviction categorically cannot count as a predicate for the career-offender enhancement. Mathis, 136 S.Ct. at 2253.

         The Court need not address this first claim, however, to dispose of Boarden's petition, as the record shows that he has two other valid, qualifying predicate convictions. See McCoy v. United States, Case No. 16-cv-0631-MJR, 2017 WL 1233894, at *5 (S.D. III. Apr. 4, 2017) (finding that with two valid qualifying predicate convictions, the court need not consider the petitioner's challenge to any other potential predicates). Both of these other convictions qualify under the Guidelines' definition of “crime of violence.” At the time he was sentenced, that term 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.

         First, Boarden's petition overlooks the fact that, in addition to his narcotics and robbery convictions, he has another potential qualifying predicate offense identified in his revised presentence report: vehicular flight, in violation of Wis.Stat. § 346.04(3). This Court recently explained in great depth how the crime of vehicular flight in Wisconsin constitutes a crime of violence under the residual clause of the career-offender Guideline, and is therefore an appropriate predicate for that enhancement. Everett v. United States, Case No. 17-CV-523-JPS, 2017 WL 2116282, at *2-6 (E.D. Wis. May 15, 2017). The Court will not repeat that lengthy explanation here. It suffices to note that pursuant to the Supreme Court's dictates in Sykes v. United States, 564 U.S. 1, 9-11 (2011), any form of vehicular flight in Wisconsin must be viewed as involving a serious potential risk of physical injury to another. This brings it within the Guidelines' ...

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