Robinson v. Cross

Filing 55

OPINION entered by Judge Richard Mills on 7/7/2017. The Petition under 28 U.S.C. § 2241 for Writ of Habeas Corpus, d/e 1 is DENIED. Pending motions, d/e 52 and 54 are terminated. Case CLOSED. (SEE WRITTEN OPINION)(MAS, ilcd)

E-FILED

Tuesday, 11 July, 2017 10:17:16 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CHARLES R. ROBINSON,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

NO. 16-01263

OPINION
RICHARD MILLS, U.S. District Judge:
Charles R. Robinson filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 in the Southern District of Illinois.
The case was subsequently transferred to the Central District of Illinois and is
now before the Court.
Respondent United States of America concedes that the action is properly
brought under § 2241.
I. BACKGROUND
In 1999, Petitioner Charles R. Robinson was convicted of possession of, intent
to distribute and distribution of crack cocaine. See United States v. Robinson, Case
No. 97-30025. He was sentenced to serve 100 years imprisonment.
The Petitioner’s convictions and sentence were affirmed and his collateral

attacks were unsuccessful. In 2016, the Petitioner’s sentence was reduced to 30 years
imprisonment based on a retroactive sentencing guideline amendment.
In this habeas corpus petition, the Petitioner alleges that, pursuant to Begay v.
United States, 553 U.S. 137 (2008) and Brown v. Caraway, 719 F.3d 583 (7th Cir.
2013), his imprisonment term should not have been enhanced under the sentencing
guidelines because his prior conviction for attempted arson under Illinois law is
neither a “violent felony” nor “arson” and does not qualify as a crime of violence
pursuant to the career offender guideline. Because he claims attempted arson cannot
be counted as one of the three “violent felony” convictions necessary for a sentencing
enhancement, the Petitioner contends he does not qualify as a career offender.
II. DISCUSSION
A. Legal principles
“[A] federal prisoner may petition under § 2241 if his section 2255 remedy is
inadequate or ineffective to test the legality of his detention.” Brown, 719 F.3d at 586
(internal quotation marks and citation omitted). Three conditions must be established
in order for this exception to apply. See id. The prisoner must first show that he
relies on a “statutory interpretation case,” not a constitutional one. See id. He must
also show that he relies on a retroactive decision that could not have been invoked
when he filed his § 2255 motion. See id. Finally, the sentence enhancement must
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constitute a sufficiently grave error to be deemed a miscarriage of justice and thus be
cognizable in a habeas proceeding. See id. As noted, the Government concedes and
the Court agrees that the conditions are met and § 2241 is a proper vehicle for the
Petitioner to raise his claims.
At the time of sentencing, an individual was deemed a career offender under
the United States Sentencing Guidelines if:
(1) [he] was at least eighteen years old at the time [he] committed the
instant offense of conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance
offense; and (3) [he] has at least two prior felony convictions of either
a crime of violence or a controlled substance.
U.S.S.G. § 4B1.1(a). The Petitioner challenged only the third prong of the career
offender definition.
Until recently, the Guidelines defined “crime of violence” as follows:
any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that–
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(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 another.

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U.S.S.G. § 4B1.2(a).1 Following the amendment of the career offender guideline, the
Supreme Court upheld the residual clause of the career offender guideline, holding
that unlike the ACCA, “the advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause.” Beckles v. United States,

U.S. , 137

S. Ct. 886 (2017).2
Courts use the categorical approach in determining whether a prior state
conviction qualifies as a crime of violence under the career offender guideline. See
United States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009). Instead of researching the
underlying facts of the conviction, a court considers whether the state statute has as
an element of the offense “the use, attempted use, or threatened use of physical force
against the person of another.” See United States v. Maxwell, 823 F.3d 1057, 106061 (7th Cir. 2016). The focus is “only on the fact of conviction and the essential

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The career offender guideline was recently amended. Following the United States
Supreme Court’s decision in Johnson v. United States, U.S. , 135 S. Ct. 2551 (2015),
which invalidated the Armed Career Criminal Act’s (ACCA) residual clause as
unconstitutionally vague, the Sentencing Commission amended the Guidelines to delete §
4B1.2(a)(2)’s residual clause. Section 4B1.2(a)(2) no longer includes the residual clause
and lists the following as crimes of violence: “murder, voluntary manslaughter,
kidnaping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use
or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).”
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Section 4B1.2(a)(1) is often referred to as the elements clause. The first portion
of § 4B1.2(a)(2) is often referred to as the enumerated crimes clause, while the second
portion of the former § 4B1.2(a)(2) is often referred to as the residual clause.

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elements of the offense.” United States v. Sonnenberg, 628 F.3d 361, 364 (7th Cir.
2010). Therefore, in order to determine whether attempted arson qualifies as a crime
of violence, the Court must examine the specific elements of Illinois’ attempted arson
statutes to ascertain whether the state statute has as “an element the use, attempted
use, or threatened use of physical force against the person of another.” U.S.S.G. §
2L1.2 cmt. n.2.
The Illinois’ attempt statute, 720 ILCS 5/8-4(a), provides as follows:
A person commits the offense of attempt when, with intent to commit a
specific offense, he or she does any act that constitutes a substantial step
toward the commission of that offense.
As relevant here, the Illinois’ arson statute states as follows:
(a) A person commits arson when, by means of fire or explosive, he or
she knowingly:
(1) Damages any real property, or any personal property having a value
of $150 or more, of another without his or her consent.
720 ILCS 5/20-1(a)(1).
B. Residual clause
As noted above, the Supreme Court recently upheld the residual clause
contained in the career offender guideline. In Sonnenberg, the Seventh Circuit
explained the Supreme Court’s categorical approach as to the material identical
portion of the definition of crime of violence under the ACCA:

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Begay also held that the residual clause for conduct that presents a
serious potential risk of physical injury applies only to crimes that
categorically involve “purposeful, violent, and aggressive conduct.”
553 U.S. at 144-45, 128 S. Ct. 1581 (holding that driving under
influence of alcohol was not a crime of violence despite risks of physical
injury to others). Under the categorical approach of Begay, therefore,
a conviction can qualify as a crime of violence under the Armed Career
Criminal Act only when (1) a violation of a particular statute would
necessarily include as an element the use, attempted use, or threatened
use of physical force against the person of another, or (2) would, in the
ordinary or typical case, present a serious risk of physical injury as a
result of purposeful, violent, or aggressive conduct similar in kind and
risk to the crimes enumerated in U.S.S.G. § 4B1.2(a)(2).
628 F.3d at 364.
The Supreme Court has described arson (along with other crimes) as potentially
involving “purposeful, violent and aggressive conduct.” Chambers v. United States,
555 U.S. 122, 128 (2009). The Second Circuit observed that “[f]ire is a powerful
weapon–easy to wield, capable of overwhelming destruction, and difficult if not
impossible to control. It would defy common sense to characterize arson as anything
but a violent crime.” Santana v. Holder 714 F.3d 140, 145 (2d Cir. 2013) (holding
attempted arson “involves a substantial risk of the intentional use of physical force
against the person or property of another” and attempted arson in the second degree
qualifies as a “crime of violence” under 18 U.S.C. § 16(b)). Other courts have
similarly held that attempted arson constitutes a violent felony. See United States v.
Rainey, 362 F.3d 733, 735-36 (11th Cir. 2004) (holding that attempted arson under
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Florida law constitutes a violent felony pursuant to the career offender guideline);
United States v. Clements, 20 F. App’x 699, 701 (9th Cir. 2001) (upholding the
district court’s conclusion that attempted arson is a crime of violence under the career
offender guideline). Because attempted arson involves a serious and substantial risk
of physical injury to others, the Court finds that it is properly classified as a crime of
violence pursuant to the residual clause of the career offender guideline.
The Court notes that, in order to commit attempted arson under Illinois law, an
individual must take a substantial step towards committing arson with the specific
intent to commit arson. See 720 ILCS 5/8-4(a). The Petitioner could not have been
found guilty of attempted arson by engaging in merely reckless or negligent conduct
such as carelessly discarding a lit cigarette. He was found guilty of attempted arson
based upon a purposeful intent to commit arson. This case is distinguishable from
Brown, on which the Petitioner relies, because the Delaware third degree arson statute
criminalizes conduct that is merely reckless. See Brown, 719 F.3d at 590-91.
Because the Petitioner was not convicted of careless or reckless conduct but
was convicted of a crime which creates a substantial risk of death or serious bodily
injury and he was convicted of intentionally creating that risk, the Court finds that
Petitioner possessed the requisite mens rea and concludes that attempted arson
qualifies as a crime of violence pursuant to the residual clause that, until recently, was
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a part of the career offender guideline.
C. Enumerated crimes clause
The Court further finds that attempted arson qualifies as a crime of violence
under the enumerated crimes clause. Arson is listed in § 4B1.2(a)(2) as a crime of
violence and the commentary provides that attempting to commit the offense
constitutes a crime of violence. See U.S.S.G. § 4B1.2, comment. n.1. Accordingly,
the Sentencing Guidelines explicitly identifies attempted arson as a crime of violence.
As previously noted, the intentional conduct in this case is distinguishable from
the reckless conduct before the Seventh Circuit in Brown. Given that the Illinois
attempted arson statutes comport with the generic definition of attempted arson and
the Sentencing Guidelines explicitly contemplated attempted arson as a crime of
violence, the Court concludes that the Petitioner’s conviction for attempted arson
under Illinois state law was properly considered as a predicate crime of violence in
assessing the Petitioner’s career offender status.3
III. CONCLUSION
Because the Petitioner’s attempted arson conviction was for intentional, and

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The Court agrees with the Parties that the Petitioner’s conviction for attempted
arson under Illinois law does not satisfy the elements clause because the Illinois statutes
do not contain as an element “the use, attempted use, or threatened use of physical force
against the person of another.” U.S.S.G. § 4B1.2(a).

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not reckless conduct, his argument that attempted arson does not qualify as a
predicate conviction for career offender purposes is without merit. The Petitioner’s
Illinois attempted arson conviction qualifies as a crime of violence pursuant to the
residual clause and the enumerated crimes clause of the career offender guideline.
Accordingly, the Court concludes that Petitioner is not entitled to any relief
under § 2241. If the Petitioner chooses to appeal, it is not necessary for him to obtain
a certificate of appealability from this disposition of his § 2241 petition. See Walker
v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
Ergo, the Petition under 28 U.S.C. § 2241 for Writ of Habeas Corpus [d/e 1]
is DENIED.
The Clerk will terminate any other pending motions [d/e 52 & 54], enter
judgment and close this case.
ENTER: July 7, 2017
/s/ Richard Mills
Richard Mills
United States District Judge

FOR THE COURT:

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