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Hernandez v. United States

United States District Court, W.D. Wisconsin

December 20, 2017

JUAN CARLOS HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         Juan Carlos Hernandez pleaded guilty in 2001 to the crime of conspiring to possess and distribute methamphetamine. He had two prior convictions, one for possession of cocaine, a controlled substance offense, and one for involuntary manslaughter, which was considered a violent offense for purposes of the then-mandatory sentencing guidelines. The two convictions made him a career offender under the sentencing guidelines, U.S.S.C. § 4B1.1(a). He was sentenced to a term of 360 months, which was the bottom of the mandatory guidelines range. In 2016, he filed the present motion for post conviction relief under 28 U.S.C. § 2255, contending that under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his prior conviction for involuntary manslaughter does not qualify as a violent offense and he is entitled to resentencing. This matter was stayed pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). After the Beckles decision was issued in March of 2017, the parties completed their briefing.

         The government opposes the petition on four grounds, the first three of which are procedural: (1) petitioner procedurally defaulted his constitutional vagueness argument; (2) Johnson is not retroactive to mandatory or advisory guidelines cases, making petitioner's claim untimely; and (3) petitioner's claim fails the merits because Beckles and Seventh Circuit precedent bar relief. After considering the parties' arguments, I conclude that Johnson does not provide petitioner any means of relief. Therefore, I am denying the petition. Because this issue has not yet been resolved by the court of appeals, I will grant petitioner a certificate of appealability.

         BACKGROUND

         A. Petitioner's Conviction and Direct Appeal

         When petitioner was charged in 2000 with the federal crime of distributing more than 500 grams of methamphetamine, he had two prior California convictions, one for possession of cocaine for sale and one for involuntary manslaughter involving “reckless conduct presenting a serious potential risk of physical injury to another.” Under the United States Sentencing Guidelines in effect at that time, petitioner's state cocaine charge was classified as “a controlled substance offense” and his involuntary manslaughter conviction was classified as a “a crime of violence.” U.S.S.C. § 4B1.2. The two prior convictions made him a career offender under § 4B1.1(a). As a result, his mandatory guidelines range increased from 210 to 262 months, to 360 months to life. He was sentenced to 360 months.

         Petitioner filed a timely appeal in which he challenged the characterization of his involuntary manslaughter conviction as a crime of violence, but did not challenge the constitutionality of the “residual clause” of U.S.S.C. § 4B1.2(a)(2). His appeal was unsuccessful. He filed no other motions attacking his sentence until he learned of the 2015 decision in Johnson, 135 S.Ct. 2551, in which the Supreme Court held that the definition of “violent felony” in the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act was unconstitutionally vague. He filed a motion for post conviction relief within one year of the announcement of the decision in Johnson.

         B. Supreme Court Decisions Interpreting the Residual Clause

         Under the Armed Career Criminal Act, the term “violent felony” applied to the crimes enumerated in 18 U.S.C. § 924(e)(2)(B):

(i) any crime that had as element either “the use, attempted use, or threatened use of physical force against the person of another” [often referred to as the “elements clause”;]
(ii) any crime of “burglary, arson or extortion, involves use of explosives [the “enumerated clause”]; or otherwise involves conduct that presents a serious potential risk of physical injury to another”; [the “residual clause”].

         The “residual clause” has long presented difficult questions of interpretation. It was not clear how serious the potential risk of physical injury must be, for example, or whether the question to be decided was the seriousness of the conduct in a given case or the potential seriousness of similar conduct in the ordinary case of the defendant's crimes. The Court's answers varied. In James v. United States, 550 U.S. 192 (2007), for instance, the Supreme Court found that the clause covered a person charged with attempted burglary, but the Court found in Begay v. United States, 553 U.S. 137 (2008), that the clause did not apply to persons charged with drunken driving. In later opinions, the Court found that the clause applied to a person charged with vehicular flight from law enforcement to avoid punishment, Sykes v. United States, 564 U.S. 1 (2011), but not to failure to report to serve a period of weekend confinement, United States v. Chambers, 555 U.S. 122 (2009).

         Finally, in Johnson, 135 S.Ct. 2551, the Court abandoned any effort to distinguish among various interpretations of the residual clause and declared the clause either “‘too vague to give ordinary people fair notice of the conduct it punishes or so standardless that it invites arbitrary enforcement.'” Id. at 2556 (quoting Kallander v. Lawson, 461 U.S. 352, 357-58 (1983)). Such a “shapeless” provision did not “comport with the Constitution's guarantee of due process.” Id. at 2560. Thus, to qualify as a “violent felony, ” a prior conviction must satisfy either the elements clause or the enumerated clause of § 924(e)(2)(B). The following year, in Welch v. United States, 136 S.Ct. 1257 (2016), the Court held that the decision in Johnson was substantive, which meant that it was not confined to cases on direct appeal but applied to cases on collateral review as well.

         After Welch, questions remain relating to the Court's ruling in Johnson, primarily whether its scope is limited 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act or whether it extends to persons sentenced under §§ 4B1.1(a) and 4B1.2 of the career offender guidelines. A number of lower courts, including the Court of Appeals for the Seventh Circuit, reasoned that the holding in Johnson should extend to the “residual clause” of the sentencing guidelines as well and thus, permitted petitioners to bring post conviction challenges to career offender sentences. E.g., United ...


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