United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE.
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.”
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).
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.
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”).
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.
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.
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).
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.
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.
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.”
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
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.
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' ...