United States District Court, W.D. Wisconsin
OPINION AND ORDER
William M. Conley District Judge.
Marvin McBride seeks post-conviction relief pursuant to 28
U.S.C. § 2241. He claims that his sentence included a
“career offender” enhancement under U.S.S.G.
§ 4B1.1, which applies under certain circumstances when
a defendant has two prior felony convictions for either a
“crime of violence” or a “controlled
substance offense.” In his petition before this court,
McBride seeks relief on the basis that the career offender
enhancement was improper in light of the Supreme Court's
decision in United States v. Mathis, 136 S.Ct. 2243 (2016).
This petition is before the court for preliminary review
pursuant to Rule 4 of the Rules Governing Section 2254 Cases,
which applies to petitions not brought under § 2254. See
Rule 1(b), Rules Governing Section 2254 Cases. Under Rule 4,
the court must dismiss the petition if it plainly appears
that petitioner is not entitled to relief. Otherwise, the
court must order respondent to file an answer. Since it is
plainly apparent that McBride is not entitled to relief, his
petition will be denied.
February 23, 2015, in the Western District of Virginia,
McBride pleaded guilty to charges of possessing with intent
to distribute cocaine base and cocaine, in violation of 21
U.S.C. § 841(b)(1)(C), and possessing with intent to
distribute cocaine in violation of § 841(a)(1),
841(b)(1)(C). United States v. McBride, No. 1:13-cr-35-JPJ,
dkts. ##586, 587 (W.D. Vir. Feb. 23, 2015). One of the terms
of the plea agreement provided that if he complied with his
obligations under the agreement, the government would not
seek any sentencing enhancements based on any prior
convictions for felony drug offenses. Id. (dkt.
#586) at 3.
16, 2015, McBride was sentenced, below the recommended
guidelines range, to 144 months' imprisonment.
Id., Sent. Tr., dkt. #722, at 16-20. While the
court's sentence included consideration the leadership
role enhancement (U.S.S.G. § 3B1.1), as well as
McBride's criminal history in its review of the U.S.S.G.
§ 3553 factors, the court did not explicitly mention
that McBride's guidelines range included a career
offender enhancement. However, McBride insists that he
received the career offender enhancement based on two prior
Michigan convictions: second-degree home invasion, in
violation of Mich. Comp. Laws § 750.110(a)(3), and
delivery of a controlled substance, in violation of Mich.
Comp. Laws § 333.7401(2)(a).
of 2016, McBride filed a motion to vacate pursuant to 28
U.S.C. § 2255, challenging his career offender
enhancement under Johnson v. United States, 135
S.Ct. 2551 (2015), in which the Supreme Court of the United
States held that the residual clause in the violent felony
definition under the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. McBride
challenged his enhancement on the basis that his Michigan
home invasion conviction no longer constituted a crime of
violence after Johnson. However, following the
Supreme Court's holding in Beckles v. United
States, 137 S.Ct. 886, 897 (2017), that
Johnson's vagueness analysis does not apply to
§ 4B1.2(a)(2) sentence enhancements, McBride withdrew
his petition. McBride, No. 1:13-cr-JPJ, dkt. #780.
petition before this court, McBride claims that he
was sentenced as a career offender, and that the Supreme
Court's decision in Mathis, 136 S.Ct. 2243,
requires resentencing. In Mathis, the Supreme Court
held that a prior conviction counts as a predicate crime
under the Armed Career Criminal Act, 18 U.S.C. §
924(e)(1), only “if its elements are the same as, or
narrower than, those of the generic offense.”
Id. at 2248. McBride argues that the Michigan
statutes defining his predicate offenses are broader than the
challenge to his guidelines sentence is foreclosed by circuit
precedent because he was not sentenced under the ACCA, but
under the advisory Sentencing Guidelines. In Hawkins v.
United States, 724 F.3d 915, 916 (7th Cir. 2013), the
court of appeals reaffirmed its previous holding in
Hawkins v. United States, 706 F.3d 820 (7th Cir.
2013), that “an error in calculating a defendant's
guidelines sentencing range does not justify post conviction
relief unless the defendant [was] sentenced in the
pre-Booker era, when the guidelines were mandatory
rather than merely advisory.” See also United
States v. Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014)
(recognizing that Hawkins is “the law of this
circuit”). The Seventh Circuit recently reaffirmed
these holdings in Hanson v. United States, __ F.3d
__, 2019 WL 5406665, at *3 (7th Cir. Oct. 22, 2019), finding
that Hawkins and Coleman foreclosed relief
in a Mathis challenge brought under 28 U.S.C. §
2255, since the sentence was imposed based on advisory
Guidelines, not mandatory Guidelines or statutory minimums.
In this case, petitioner is challenging the sentencing
court's application of the sentencing guidelines, but he
was sentenced in 2015, well after the Supreme Court held that
the guidelines are advisory in United States v.
Booker, 543 U.S. 220 (2005). Thus, Hawkins
applies and petitioner cannot rely on Mathis or any
other change in the law to challenge his status as a career
offender in a post-conviction proceeding.
Hawkins involved a motion under 28 U.S.C. §
2255 rather than a petition under 28 U.S.C. § 2241, that
is not a basis for distinguishing it. As noted above, the
court of appeal's ruling is not limited to § 2255
motions, but applies to all “postconviction
relief.” Further, the court reasoned in
Hawkins that a prisoner could not challenge a
sentencing guideline error in a § 2255 motion because
such an error was not a “miscarriage of justice”
in light of the fact that the guidelines do not affect the
statutory maximum, so the sentencing court would be entitled
to impose the same sentence even if the case were remanded.
Hawkins, 706 F.3d at 825. Because a petitioner
seeking relief under § 2241 must also show that denying
relief would result in a “miscarriage of justice,
” e.g., Brown v. Rios, 696 F.3d 638, 640 (7th
Cir. 2012), the reasoning in Hawkins applies equally
to a § 2241 petition.
Rule 11 of the Rules Governing Section 2254 Cases (which can
be applied to cases under § 2241 as well), the court
must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. The question
is whether “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal quotations and citations omitted). Since
the Seventh Circuit's decision in Hanson removes
any doubt as to whether petitioner is entitled to relief, the
court will not issue petitioner a certificate of
IT IS ORDERED that:
(1) Petitioner Marvin McBride's motion to substitute
(dkt. #6) is GRANTED.
(2) Petitioner's application under 28 U.S.C. § 2241
is DENIED and his ...