Christopher Cummings v. USA

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and Michael S. Kanne, Circuit Judge. [6827490-1] [6827490] [16-1636]

Case: 16-1636

Document: 30
Filed: 03/21/2017
Pages: 2
NONPRECEDENTIAL DISPOSITION
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

Argued February 16, 2017
Decided March 21, 2017
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 16-1636
CHRISTOPHER R. CUMMINGS,
Petitioner-Appellant,

Appeal from the United States District
Court for the Eastern District of
Wisconsin.

v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

No. 15-CV-1219-JPS
J.P. Stadtmueller,
Judge.

ORDER
In 2006, Cummings pled guilty to distributing cocaine. The district court
sentenced him as a career offender under U.S.S.G. § 4B1.1. To be sentenced as a career
offender, § 4B1.1(a) requires the defendant to have “at least two prior felony convictions
of either a crime of violence or a controlled substance offense.” Cummings previously
had been convicted in Wisconsin for possessing cocaine with intent to distribute and for
discharging a firearm from a vehicle. He argued that discharging a firearm from a
vehicle was not a crime of violence and thus he could not be sentenced as a career
offender. The district court held, however, that discharging a firearm was a crime of
violence under the sentencing guideline’s residual clause.

Case: 16-1636
No. 16-1636

Document: 30

Filed: 03/21/2017

Pages: 2
Page 2

In 2015, the Supreme Court held that the residual clause in the Armed Career
Criminal Act was unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551
(2015). After Johnson, Cummings filed a petition for relief under 28 U.S.C. § 2255. He
argues that because the language in the sentencing guideline’s residual clause is
identical to the language in the ACCA’s residual clause, the sentencing guideline’s
residual clause is also unconstitutionally vague.
We had held that the sentencing guideline’s residual clause was
unconstitutionally vague after Johnson in United States v. Hurlburt, 835 F.3d 715 (7th Cir.
2016). But this week, the Supreme Court held that the sentencing guidelines are not
subject to due-process vagueness challenges. Beckles v. United States, 580 U.S. ___, No.
15-8544, slip op. at 5 (Mar. 6, 2017). Cummings’s argument is thus without merit.
AFFIRMED.