Tracy D. Shipman, Petitioner-Appellant,
United States of America, Respondent-Appellee.
February 22, 2019
from the United States District Court for the Northern
District of Illinois, Western Division. No. 16 C 50016 -
Philip G. Reinhard, Judge.
Ripple, Manion, and Brennan, Circuit Judges.
BRENNAN, CIRCUIT JUDGE.
Shipman appeals the district court's denial of his
petition for collateral postconviction relief under 28 U.S.C.
§ 2255. When Shipman pleaded guilty to drug charges in
2003, the district court sentenced him under the
then-mandatory Sentencing Guidelines. Because Ship-man had
three prior "crime of violence" felony convictions,
the district court sentenced him as a "career
offender." U.S.S.G. § 4B1.1 (2002). The
career-offender provision of the Guidelines defined a
"crime of violence" in U.S.S.G. §
4B1.2(a)(1)-(2). Two passages in that guideline are at issue
here: the enumerated-offenses clause, and the residual
appeal, Shipman argues the Guidelines' residual clause is
unconstitutionally vague. We agree, a conclusion that follows
directly from our decision in Cross v. United
States, 892 F.3d 288 (7th Cir. 2018). Indeed,
Cross abrogated the rationale supporting the
district court's dismissal of Shipman's petition for
collateral relief. With that issue resolved, the case hits a
snag: the record does not conclusively show whether Shipman
was sentenced under the residual clause or the
enumerated-offenses clause. We therefore remand this case for
further proceedings on the merits of Ship-man's §
Cross was decided nearly seven months after the
district court issued its dismissal order, we summarize the
facts and proceedings in this case only to the extent
necessary to address the issues presented on
pleaded guilty in 2003 to conspiring to manufacture and
distribute methamphetamine in violation of 21 U.S.C. §
846 (2000). His presentence report used the 2002 Sentencing
Guidelines Manual, which at that time required district
courts to increase the offense level of a "career
offender." U.S.S.G. § 4B1.1. A defendant qualifies
as a career offender if: (1) the defendant was at least 18 at
the time of the instant offense of conviction; (2) the
offense of conviction is a "crime of violence or
controlled substance offense"; and (3) the defendant has
"at least two prior felony convictions of either a crime
of violence or a controlled substance offense." §
Shipman was sentenced in 2003, the Guidelines'
career-offender provisions defined a "crime of
violence" (in relevant part) as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-
(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
U.S.S.G. § 4B1.2(a)(2) (emphasis added). Subsection (2)
contains both the "enumerated-offenses clause"
(non-italicized text) and the "residual clause"
probation officer calculated a Guidelines sentencing range of
262 to 327 months' imprisonment, based in part on
Shipman's designation as a career offender. Shipman's
age (35 years) and this drug charge supplied the first and
second predicates for the career-offender designation. His
three prior Arkansas convictions for "residential
burglary" in 1986 and 1987 satisfied the third
predicate. Shipman did not object to the report's
career-offender designation or suggested sentencing
enhancement. The district court adopted the presentence
report's findings and calculations, classified Shipman as
a career offender, and sentenced him to 262 months'