Vanleer v. United States of America
Filing
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ORDER AND OPINION entered by Chief Judge James E. Shadid on 11/15/2016. For the reasons stated above, Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 USC § 2255 1 is DISMISSED without prejudice as premature. This matter is now terminated. See full written Order and Opinion. (JS, ilcd)
E-FILED
Tuesday, 15 November, 2016 02:17:19 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
HOLLIS VANLEER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-1424
Crim. Case No. 11-10042
ORDER AND OPINION
This matter is now before the Court on Petitioner Vanleer’s § 2255 Motion to Vacate, Set
Aside, or Correct Sentence and Motion for Leave to File an Amended Motion. For the reasons
set forth below, Petitioner’s Motion [1] is DISMISSED.
BACKGROUND
Petitioner filed this § 2255 action seeking to vacate, set aside, or correct his sentence
seeking a reduction in sentence for his “minor role” in his criminal conduct and also because his
prior convictions no longer qualify him for sentencing as a career offender. Although he cites no
authority in support of his first contention, the Court presumes that he is referring to a role
reduction pursuant to Amendment 794 to the Sentencing Guidelines and the Ninth Circuit
opinion in United States v. Quintero-Leyva, 823 F.3d 519 (2016). Petitioner pled guilty to
conspiracy to distribute cocaine base and was sentenced to 220 months’ imprisonment in March
2012. He did not pursue a direct appeal, but his sentence was subsequently reduced to 160
months pursuant to Amendment 782.
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STANDARD OF REVIEW
A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws
in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or
result in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir.
1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that
“vitiate the sentencing court’s jurisdiction or are otherwise of constitutional magnitude.” Guinan
v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th
Cir. 1993). A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United
States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States,
75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to
circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456
U.S. 152, 165 (1982); Doe, 51 F.3d at 698.
ANALYSIS
Petitioner claims in his § 2255 Motion that his sentence is invalid because Amendment
794 to the Sentencing Guidelines entitles him to a reduction for having played a minor role in the
offense. Initially, the Court notes that errors in the application of the sentencing guidelines
cannot be raised in 2255 motions as long as a defendant’s sentence is within the range provided
by the statute of offense. United States v. Wisch, 275 F.3d 620, 625 (7th Cir. 2001) (holding that
sentencing guideline calculation errors are nonconstitutional and are therefore not reviewable in
2255 proceedings.)
Moreover, Amendment 794 became effective on November 1, 2015, and applies to
U.S.S.G. § 3B1.2 to arguably make it easier for a defendant to qualify for a mitigating role in the
offense and receive a lower sentence. However, Amendment 794 has not been made retroactive
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to cases on collateral review. Even in Quintero-Leyva, the Ninth Circuit only extended the
change to apply to cases pending on direct appeal and specifically declined to address whether
the amendment was available to defendants who had exhausted their direct appeal. 823 F.3d at
521, n. 1. Assuming that the Seventh Circuit agrees that Amendment 794 is applicable on direct
review, this would still not allow Petitioner to benefit from the decision as his direct appeal
became final years before the amendment became effective. His suggestion that he is entitled to
a reduction under this amendment is without merit at the present time.
Petitioner further claims that his sentence is invalid because the Court found that he was
eligible for an enhanced sentence as a career offender based on controlled substance convictions
that no longer qualify as crimes of violence under residual clause of the career offender
guideline, U.S.S.G. 4B1.2(a)(2). On June 26, 2015, the Supreme Court held that the residual
clause of the Armed Career Criminal Act violates due process because the clause is too vague to
provide adequate notice. Johnson v. United States, 135 S.Ct. 2551 (2015). In Price v. United
States, the Seventh Circuit held that Johnson announced a new substantive rule of constitutional
law that the Supreme Court has categorically made retroactive to final convictions. 795 F.3d 731,
732 (7th Cir. 2015). That decision also made clear that Johnson is retroactive not only to cases on
direct appeal, but also to cases on collateral review. Id.
Petitioner’s Motion seeks to invoke Johnson and the subsequent Seventh Circuit decision
in United States v. Hurlburt, ___ F.3d ___, 2016 WL 4506717 (7th Cir. Aug. 29, 2016), claiming
that his prior convictions for controlled substance offenses fell within the residual clause of the
definition of “crime of violence” under the career offender guideline. While Johnson only
invalidated the residual clause of the ACCA, this holding was extended to the substantively
similar language of the career offender guideline in Hurlburt, where the Seventh Circuit held that
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the residual clause in 4B1.2(a)(2) is unconstitutionally vague. 2016 WL 4506717, at *7.
However, the Seventh Circuit stopped short of finding that this holding can be extended to cases
challenging career offender status on collateral review. This issue is pending before the Supreme
Court in Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, 136 S.Ct.
2510 (2016). Unless and until the Supreme Court extends the finding that the residual clause of
§ 4B1.2 is retroactive to cases on collateral review, Vanleer’s challenge is at best premature.
Furthermore, even if Johnson is extended to cases on collateral review, Petitioner would
not benefit. His prior convictions were for unlawful possession of cannabis with intent to deliver
in McLean County Case No. 07-CF-186 and unlawful delivery of cannabis in McLean County
Case No. 07-964. Controlled substance offenses do not invoke the residual clause, and
Petitioner’s reliance on Johnson is misplaced. Stanley v. United States, 827 F.3d 562, 564 (7th
Cir. 2016).
Therefore, Petitioner is not entitled to relief at this time. The Motion is dismissed
without prejudice to refiling if and when Amendment 794 is made retroactive to afford relief on
collateral review.
CERTIFICATE OF APPEALABILITY
To obtain a certificate of appealability, a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C § 2253(c)(2). The petitioner must also show that
“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.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, the claims are based on an erroneous interpretation of the holding in Quintero-Leyva,
reliance on the non-retroactive applicability of Amendment 794, and a misapplication of Johnson.
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No reasonable jurist could conclude that Petitioner’s claims were not either devoid of factual support
or premature at best. Accordingly, this Court will not issue him a certificate of appealability.
CONCLUSION
For the reasons stated above, Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 USC § 2255 [1] is DISMISSED without prejudice as premature. This
matter is now terminated.
ENTERED this 15th day of November, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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