Evans v. United States of America

Filing 8

ORDER & OPINION entered by Judge Joe Billy McDade on 11/20/2015. The Court properly considered Petitioners burglary conviction in determining that Petitioner was subject to an enhanced sentence under the ACCA and sentencing him to 210 months imprisonment. For that reason, Petitioners Motion 1 is DENIED. The Clerk is directed to notify Petitioner David Evans. No Certificate of Appealability shall issue from this Court. IT IS SO ORDERED.(RK, ilcd)

E-FILED

Friday, 20 November, 2015 11:43:54 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DAVID EVANS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 15-cv-1363

ORDER & OPINION
This matter is before the Court on Petitioner David Evans’s Motion to Vacate,
Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). For the
reasons discussed below, the Motion is DENIED.
BACKGROUND
Petitioner David Evans (“Petitioner” or “Evans”) was indicted for possession
of a firearm by a felon in violation of 18 U.S.C. § 922(g). United States v. Evans, 216
F. App’x 592, 593 (7th Cir. 2007). After an unsuccessful motion to suppress
evidence, he entered a guilty plea on December 9, 2005 but reserved the right to
appeal the Court’s ruling on his motion to suppress.
The Court subsequently sentenced Evans to a term of imprisonment of 210
months. (Judgment, United States v. Evans, Case No. 05-cr-10017-1 (C.D. Ill. Dec.
15, 2005)). Ordinarily, defendants who are convicted of violating § 922(g) are subject
to a statutory maximum of ten years imprisonment. See 18 U.S.C. § 924(a)(2).
However, defendants convicted of violating § 922(g) who are armed career criminals,

meaning they have “three previous convictions . . . for a violent felony or a serious
drug offence, or both, committed on occasions different from one another,” are
subject to a mandatory minimum of fifteen years imprisonment. Id. at § 924(e)(1).
A probation officer prepared a Presentence Report, and recommended that
the Court find that Evans is an armed career criminal. This recommendation was
based upon three of Evans’s prior convictions. First, Evans was convicted of
burglary on December 31, 1986; second, he was convicted of aggravated battery on
October 5, 1992; and third, he was convicted of unlawful possession of a controlled
substance with the intent to deliver on June 23, 1992. The Court accepted this
recommendation from probation in full and sentenced Evans to 210 months, or 17 ½
years, of imprisonment. The Seventh Circuit later denied Evans’s appeal of the
Court’s decision on the the motion to suppress. Evans, 216 F. App’x at 594.
In the pending motion, Petitioner challenges his designation as an armed
career criminal, and argues that the Court should not have considered his
conviction for burglary to be a violent felony.
LEGAL STANDARDS
Section 2255 of Chapter 28 of the United States Code provides a basis for
attacking a federal sentence on the grounds that “the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). If the court determines that any of these grounds exists, it “shall
vacate and set the judgment aside and shall discharge the prisoner or resentence

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him or grant a new trial or correct the sentence as may appear appropriate.” Id. at §
2255(b).
As relevant here, section 2255 motions must be filed within one year of “the
date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” Id. at § 2255(f)(3). Last term, the United
States Supreme Court held that a portion of the ACCA is unconstitutionally vague.
See Johnson v. United States, 135 S. Ct. 2551 (2015). The Seventh Circuit recently
held that Johnson, which the Supreme Court decided on June 26, 2015, announced
a new rule of constitutional law that is retroactively available to cases on collateral
review. Price v. United States, 795 F.3d 731 (7th Cir. 2015).
DISCUSSION
In Petitioner’s pending § 2255 motion, he argues that his sentence is contrary
to law because the Court impermissibly counted his conviction of burglary as one of
his previous convictions for a violent felony or serious drug offense.
The ACCA defines violent felony as:
any crime punishable by imprisonment for a term exceeding one year
and certain acts of juvenile delinquency . . . . that
(i)
has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii)
is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B). This definition includes burglary among the enumerated
offenses classified as a violent felony. See 18 U.S.C. § 924(e)(2)(B)(ii) (including
burglary, arson, and extortion as violent felonies).

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Petitioner argues that his Illinois burglary conviction does not count as
burglary under the ACCA. Although it is unclear, he therefore seems to argue that
the only way the Court could have considered his burglary conviction to be a violent
felony is if it concluded that the burglary “otherwise involve[d] conduct that
presents a serious potential risk of physical injury to another.” See id. The quoted
language from the last sentence is known as the ACCA’s residual clause. This is the
portion of the ACCA that the Supreme Court invalidated because it is
unconstitutionally vague. See Johnson, 135 S. Ct. 2551.
The Court concludes that Petitioner has not established any ground for relief
under § 2255, because his conviction for burglary is properly considered burglary
under the ACCA and does not implicate the recently invalidated residual clause.
I. Petitioner’s Conviction for Burglary
Petitioner was convicted of burglary on December 31, 1986 after entering a
guilty plea. In 1986 in Illinois, “[a] person commit[ed] burglary when without
authority he knowingly enter[ed] or without authority remain[ed] within a building,
housetrailer, watercraft, aircraft, motor vehicle . . . railroad car, or any part thereof,
with the intent to commit therein a felony or theft . . . .” Ill. Rev. Stat. ch. 38, par.
19-1(a) (1986). Petitioner’s indictment stated that he, along with another man, “did
without authority knowingly enter or remain within a building or part of a building
. . . with the intent to commit therein a theft . . . in violation of paragraph 19-1a, of
Chapter 38, Illinois Revised Statutes.” (Doc. 6-1).
II. Burglary under the ACCA

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Burglary is among the crimes enumerated under 18 U.S.C. § 924(e)(2)(B)(ii),
and Petitioner’s conviction for burglary meets the ACCA’s definition of burglary. See
United States v. Brooks, 468 F. App’x 623, 626 (7th Cir. 2012). Ordinarily, courts
determining whether a conviction should count toward a sentence enhancement
under the ACCA employ what has become known as the “formal categorical
approach.” See Taylor v. United States, 495 U.S. 575, 600 (1990). Courts employing
this approach determine whether a particular conviction qualifies by looking to the
criminal statute’s elements and comparing them to the elements of a generic crime.
Id. Generic burglary is defined as the “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Id. at 599.
Therefore, under the ACCA, burglary is only a violent felony if it is “committed in a
building or enclosed space . . . not in a boat or motor vehicle.” Shepard v. United
States, 544 U.S. 13, 16-17 (2005). Under the formal categorical approach,
Petitioner’s conviction for burglary only counts if the elements of the Illinois statute
exactly match each of those elements.
This can pose a problem, as many state burglary statutes, including Illinois’s,
criminalize unlawful entry into boats, motor vehicles, or other non-structures. In
situations where this is the case, and the statute “divisible – that is, it expressly
identifies several ways in which a violation may occur,” courts apply what is known
as the modified categorical approach. United States v. Woods, 576 F.3d 400, 404,
406 (7th Cir. 2009). Under this approach, reviewing courts may look to a small
universe of outside documents, including the indictment, the jury instructions, and
plea agreements. Descamps v. United States, 133 S. Ct. 2276, 2284 (2013). They use

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these documents for the purpose of determining whether the defendant was
convicted of the particular version of a divisible statute that corresponds, element
for element, with the generic statute. Id.
Courts have applied the modified categorical approach to Illinois burglary.
See Brooks, 468 F. App’x at 626; United States v. Powers, No. 13-CR-89 (SRN), 2015
WL 5690973, at *6 (D. Minn. Sept. 28, 2015). The Illinois burglary statute under
which Petitioner was convicted is nongeneric in that it criminalizes unlawful entries
into watercraft, aircraft, and motor vehicles in addition to unlawful entries into
buildings and structures. Compare Ill. Rev. Stat. ch. 38, par. 19-1(a) (1986) with
Taylor, 495 U.S. at 599 (defining generic burglary). But it is divisible, in that one
way a person can violate the statute is by unlawfully entering a building with the
intent to commit a crime. See Ill. Rev. Stat. ch. 38, par. 19-1(a)(1986) (listing the
required elements of burglary as (1) without authority, (2) knowingly enter or
remain in, (3) a building, housetrailer, watercraft, aircraft, motor vehicle, or
railroad car, (4) with the intent to commit a felony or theft).
In this case, the Court properly considered Petitioner’s conviction for Illinois
burglary to be a burglary conviction for the purposes of the ACCA. It is proper to
consider Petitioner’s indictment for burglary, which makes it clear that Petitioner
was charged with entering into a building without authority with the purpose of
committing a theft. See Descamps, 133 S. Ct. at 2284; (Doc. 6-1). The indictment,
together with Petitioner’s guilty plea, makes clear that he was charged with
burglarizing a structure, which is a per se violent felony under the ACCA. See

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Stallings v. United States, 536 F.3d 624, 626 n. 1 (7th Cir. 2008) (citing Taylor, 495
U.S. at 599).
III.

Petitioner’s Johnson Claim

As the discussion above should make clear, Petitioner’s Johnson claim is
without merit. Petitioner’s conviction for burglary qualifies as an enumerated
offense under the ACCA, and the ACCA’s residual clause is therefore not implicated
at all here. See 18 U.S.C. § 924(e)(2)(B)(ii); Brooks, 468 F. App’x at 626; Cf. Powers,
2015 WL 5690973 at *6 (explaining that the definition of violent felony in §
924(e)(2)(B)(i) is inapplicable when a particular felony qualifies as “a specifically
enumerated violent felony under § 924(e)(2)(B)(ii).”).
Therefore, Petitioner’s motion must be denied. The Court properly found that
he was an armed career criminal because of his three previous convictions, and
sentenced him to a term of imprisonment authorized by 18 U.S.C. § 924(e)(1). As
such, his sentence was not imposed in violation of the Constitution or in excess of
the maximum authorized by law. See 28 U.S.C. § 2255(a).
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts requires the district court to “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Accordingly, the
Court must determine whether to grant Petitioner a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2) even though Petitioner has not requested one.
According to 28 U.S.C. § 2253, a habeas petitioner will only be allowed to
appeal issues for which a certificate of appealability has been granted.” Sandoval v.

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United States, 574 F.3d 847, 852 (7th Cir. 2009). A petitioner is entitled to a
certificate of appealability only if he can make a substantial showing of the denial of
a constitutional right. Id. (citing 28 U.S.C. § 2253(c)). Under this standard, a
petitioner must demonstrate that “reasonable jurists could debate whether the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Consistent with the discussion above, the Court finds that no reasonable
jurists would differ on the Court’s treatment of Petitioner’s 2255 motion. Therefore,
the Court declines to certify any issues for appeal pursuant to 28 U.S.C. §
2253(c)(2).
CONCLUSION
The

Court

properly

considered

Petitioner’s

burglary

conviction

in

determining that Petitioner was subject to an enhanced sentence under the ACCA
and sentencing him to 210 months imprisonment. For that reason, Petitioner’s
Motion (Doc. 1) is DENIED. The Clerk is directed to notify Petitioner David Evans.
No Certificate of Appealability shall issue from this Court. IT IS SO ORDERED.
Entered this 20th day of November, 2015.

s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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