United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE
petitioner Lance Slizewski is a federal prisoner incarcerated
at the Pekin Federal Correctional Institution in Illinois. In
2015, he pleaded guilty to one count of felon in possession
of a firearm, and I sentenced him to 180 months in prison.
United States v. Slizewski, No. 14-cr-87, Dkt. 49
(W.D. Wis. June 25, 2015).
has filed a motion for postconviction relief under 28 U.S.C.
§ 2255, arguing that, under Mathis v. United
States, 136 S.Ct. 2243 (2016), he no longer meets the
definition of “armed career criminal, ” which
resulted in a mandatory minimum sentence. Dkt. 1. After
reviewing his motion under Rule 4 of the Rules Governing
Section 2255 Proceedings for the United States District
Courts, I conclude that although the Mathis line of
cases affects the analysis of Sliziewski's criminal
history, he still meets the definition of armed career
April 2015, Slizewski pleaded guilty to one count of felon in
possession of a firearm under 18 U.S.C. § 922(g)(1). I
sentenced him in June 2015.
concluded that Slizewski was subject to a mandatory minimum
of 15-year sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), because he had at least
three predicate convictions. At the time, I concluded that he
had five: “(1) Burglary - Building or Dwelling,
Attempt, Vilas County Circuit Court, Case No. 02CF55; (2)
Battery, Habitual Criminality, Vilas County Case No. 02CF116;
(3) Battery by Prisoners, Dane County Circuit Court, Case No.
06CF2452; (4) Substantial Battery-Intend Bodily Harm, Dane
County Circuit Court, Case No. 08CF1980; and (5)
Strangulation and Suffocation, Dane County Circuit Court,
Case No. 10CF348.” Slizewski, No. 14-cr-87,
Dkt. 47, at 4.
prevail, Slizewski must show that his “sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). Here,
Slizewski relies on Mathis, 136 S.Ct. 2243. But even
after Mathis, Slizewski still has at least three
qualifying convictions under § 924(e).
the ACCA, a criminal defendant is an armed career criminal if
he has at least three previous convictions that qualify as
predicate offenses. § 924(e)(1). Either a “violent
felony” or a “serious drug offense” can
qualify as a predicate offense. Id. Slizewski's
case turns on whether he had at least three violent felonies.
The ACCA defines the term “violent felony” as
any crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that
would be punishable by imprisonment for such term if
committed by an adult, 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;
§ 924(e)(2)(B). Both subsections are relevant here
because Slizewski had burglary and battery convictions. The
residual clause, which would include crimes that pose
“a serious potential risk of physical injury to
another, ” does not apply because it has been held
unconstitutional. Samuel Johnson v. United States,
135 S.Ct. 2551 (2015). The residual clause was never at issue
in Slizewski's case.
next task is to determine whether Slizewski prior offenses
qualify as predicate offenses under the ACCA. Under
Taylor v. United States, and its successors,
Descamps v. United States and Mathis, a
district court must first apply the categorical approach when
enhancing sentences under § 924(e) and compare elements
of each prior offense with elements of a generic offense. 495
U.S. 575, 602 (1990); 133 S.Ct. 2276, 2281 (2013); 136 S.Ct.
at 2248. The elements of the offenses govern, and ...