USA v. Thurman E. McClain
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Joel M. Flaum, Circuit Judge. [6806512-1]  [16-1240]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2016*
Decided December 22, 2016
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
UNITED STATES OF AMERICA,
THURMAN E. McCLAIN,
Appeal from the United States
District Court for the Southern District
J. Phil Gilbert,
O R D E R
Thurman McClain was sentenced in 2003 to 192 months’ imprisonment as an
Armed Career Criminal, see 18 U.S.C. §§ 922(g)(1), 924(e). He completed that prison
term in 2012 and commenced what initially was a 5‐year term of supervised release, but
twice he has been sent back to prison after violating conditions of his release. McClain
presently is serving a 4‐year term of reimprisonment imposed in 2013, which is
* We have unanimously agreed to decide this case without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
expected to end in May 2017. After that he again will be on supervised release for
another 6 months.
McClain did not appeal after his conviction or after either revocation of
supervised release. Neither has he ever filed a postconviction motion under 28 U.S.C.
§ 2255—at least not openly. But underlying this appeal is McClain’s “motion to reduce
sentence,” ostensibly premised on 18 U.S.C. § 3583(e)(3) and (h). Those provisions
regulate how long a defendant may be reimprisoned and further monitored after
revocation of supervised release. See generally United States v. Ford, 798 F.3d 655, 661–63
(7th Cir. 2015); United States v. Rogers, 382 F.3d 648, 651–52 (7th Cir. 2004). McClain’s
motion, which he filed in 2015, argues that, by statute, the maximum term of
reimprisonment after his second revocation was 18 months, not 4 years. The district
court, reasoning that it did not have subject‐matter jurisdiction to address the legality of
a term of reimprisonment imposed nearly two years previously, dismissed McClain’s
motion. McClain has appealed that ruling.
The district court was mistaken in concluding that it lacked jurisdiction over
McClain’s motion. Section 3583 did not authorize that motion, but, as the government
acknowledges here, McClain’s motion argues that his 4‐year term of reimprisonment
exceeds the maximum allowed by law, and thus the court could have construed the
submission as a motion under 28 U.S.C. § 2255 (after warning McClain about the
consequences of doing so). See Castro v. United States, 540 U.S. 375, 383 (2003);
United States v. Hernandez, 436 F.3d 851, 855–56 (8th Cir. 2006); United States v. Pregent,
190 F.3d 279, 283 (4th Cir. 1999). The passage of time might have been an impediment,
see 28 U.S.C. § 2255(f), but untimeliness is not a jurisdictional concern, Boulb v.
United States, 818 F.3d 334, 339 (7th Cir. 2016).
That does not mean, however, that the district court should have given McClain
the option of proceeding under § 2255. His conclusory, three‐page motion did not give
the court any reason to question the legality of McClain’s current term of supervised
release. The only hint of McClain’s theory is his mischaracterization of his § 922(g)(1)
conviction as “Class C or D”; that crime normally is a Class C felony carrying a 10‐year
maximum term of imprisonment, but life imprisonment is possible with an ACCA
enhancement, making the crime a Class A felony. See 18 U.S.C. §§ 924(a)(2), (e)(1),
3559(a)(1), (3). In his appellate brief, McClain clarifies his contention that he no longer
qualifies as an armed career criminal after Johnson v. United States, 135 S. Ct. 2551 (2015),
which declared the ACCA’s residual clause to be unconstitutionally vague. McClain
says that, if he is not an armed career criminal, the maximum term of reimprisonment
on his latest revocation of supervised release would be two years instead of five,
making his current four‐year term illegal. See 18 U.S.C. § 3583(h).
McClain’s argument is foreclosed by Dawkins v. United States, 809 F.3d 953 (7th
Cir. 2016). McClain specifically contends that his three Illinois convictions for
residential burglary in violation of 720 ILCS 5/19‐3 are not ACCA predicates. Yet
Dawkins holds that residential burglary under § 5/19‐3 is “burglary” as defined in Taylor
v. United States, 495 U.S. 575 (1990), thus making the crime an appropriate ACCA
predicate without regard to the invalidated residual clause. See Dawkins, 809 F.3d at
As a final matter, the government’s argument that McClain filed his notice of
appeal a day late is frivolous. Recent amendments to the prisoner mailbox rule clarify
that a declaration or notarized statement from McClain is not needed to establish
compliance with that rule; evidence, such as a postmark or date stamp, showing that
the notice was timely deposited into the institutional mail with appropriate postage is
enough. FED. R. APP. P. 4(c)(1)(A). And even before the recent amendments we had read
Rule 4(c)(1) in a commonsense manner. See Taylor v. Brown, 787 F.3d 851, 858–59 & n. 10
(7th Cir. 2015) (noting that prisoner obviously need not comply with Rule 4(c)(1)’s
command to certify that postage has been prepaid if filing is done by prison staff
electronically). McClain’s envelope is postmarked February 3, one day before the date
on which, according to the government, it was due.
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