Robertson v. United States of America
Filing
12
ORDER Entered by Judge Sara Darrow on July 24, 2017. Petitioner's 6 amended petition for relief is DENIED. His 1 original petition and his 11 motion for status conference are MOOT. The Clerk is directed to enter judgment and close the case. (SC, ilcd)
E-FILED
Monday, 24 July, 2017 11:59:03 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
TRACY C. ROBERTSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
)
Case No. 2:16-cv-02059-SLD
ORDER
Before the Court are Petitioner Robertson’s motion to vacate, set aside, or correct his
sentence pursuant to 18 U.S.C. § 2255, ECF No. 1; his amended motion to the same effect, ECF
No. 6; and his motion for status conference, ECF No. 11. For the reasons that follow, his
amended motion is DENIED, and the other two motions are MOOT.
BACKGROUND1
On April 26, 2010, police officers in Kankakee, Illinois served a search warrant on
Robertson’s house. They found cocaine, marijuana, a scale, $1,400 in cash, and a Colt .45, along
with ammunition. Robertson had sustained prior felony convictions.
On June 9, 2010, Robertson was charged by federal indictment with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Indictment, CR ECF No. 1. On
February 22, 2011, Robertson pleaded guilty to the charge via a written plea agreement, CR ECF
No. 12, filed pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Feb. 22, 2011 Minute
Entry. The agreement contained Robertson’s admission to having possessed the firearm after
1
Citations to the criminal proceedings that resulted in Robertson’s sentence, United States v. Robertson, 2:10-cr20045-MPM-DGB-1 (C.D. Ill. 2011), are written here “CR ECF No . __.” The facts recounted here, unless
otherwise noted, are taken from the presentence investigation report prepared for that proceeding, CR ECF No. 25.
1
sustaining a felony conviction in violation of 18 U.S.C. § 922(g)(1), and also his concession that
he had sustained three prior felony convictions that counted as violent felonies or serious drug
offenses as defined by 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act (“ACCA”). Plea
Agr. 3–5. As a result, Robertson and the government agreed, while the statutory maximum
punishment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is
ten years, having sustained three ACCA predicate felonies required a statutory mandatory
minimum sentence of fifteen years. Id. at 4. The parties further agreed that Robertson’s United
States Sentencing Guideline (“USSG”) level should be calculated as follows: a base offense
level of 34, because he was an armed career criminal who possessed the weapon in connection
with a drug offense, 2010 USSG §4B1.4(b)(3)(A), Plea Agr. 5; less three levels for acceptance of
responsibility, 2010 USSG §§3E1.1(a), (b), Plea Agr. 5; for a total offense level of 31; and a
criminal history category VI, since he was an armed career criminal, 2010 USSG §4B1.4(c)(2),
Plea Agr. 6; for a guideline sentencing range of 188 to 235 months, id. The parties indicated
their agreement that Robertson be sentenced at the low end of the guideline range. Id. at 6.
Robertson consented to change his plea before a magistrate judge; on February 22, 2011
he did so, and the magistrate judge recommended that the district judge accept the plea. Feb. 22,
2011 CR Minute Entry. On June 3, 2011, the district judge did so, sentencing Robertson to 188
months’ incarceration. Jun 3, 2011 CR Minute Entry. Written judgment entered on June 6,
2011. CR ECF No. 27.
On March 8, 2016, Robertson petitioned this Court to reduce his sentence pursuant to 28
U.S.C. § 2255, basing his request on the Supreme Court’s ruling in Johnson v. United States, 135
S.Ct. 2551 (2015). The Court appointed the Federal Public Defender to represent Robertson,
2
Mar. 8, 2016 Text Order, and ordered him to file an amended petition, Mar. 9, 2016 Text Order.
That petition is now fully briefed.
DISCUSSION
I.
Legal Standard on a Motion to Reduce Sentence Under 28 U.S.C. § 2255
28 U.S.C. § 2255, “the federal prisoner’s substitute for habeas corpus,” Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012), permits a prisoner incarcerated pursuant to an Act of
Congress to seek that his sentence be vacated, set aside, or corrected if “the sentence was
imposed in violation of the Constitution or laws of the United States, or . . . the court was
without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). See
Webster v. Daniels, 784 F.3d 1123, 1124 (7th Cir. 2015) (“As a rule, the remedy afforded by
section 2255 functions as an effective substitute for the writ of habeas corpus that it largely
replaced.”). When presented with a § 2255 motion, a district court must hold an evidentiary
hearing on the applicant’s claim, and make findings of fact and conclusions of law. 28 U.S.C.
§ 2255(b). However, “[i]t is well-established that a district court need not grant an evidentiary
hearing in all § 2255 cases.” Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015). The
court need not hold a hearing if “the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal
prisoner seeking to vacate his sentence typically has one year to do so, from the date upon which
the judgment of his conviction became final. 28 U.S.C. § 2255(f)(1). However, if the right he
asserts has been newly recognized and made retroactively applicable by the Supreme Court to
3
cases on collateral review, he has one year from the date the Supreme Court recognized the right.
Id. § 2255(f)(3).
II.
Analysis
Robertson argues that one of the felony convictions used to support his sentence
enhancement under the ACCA no longer qualifies as an ACCA predicate, and his sentence must
correspondingly be reduced, because attempted residential burglary only qualifies as an ACCA
predicate under the “residual clause” of the ACCA, which clause Johnson found
unconstitutionally vague. Am. Pet. 1. The government appropriately concedes that Robertson’s
petition is timely because filed within one year of Johnson, Resp. 6, but argues that the claim is
barred by a collateral attack waiver, id. at 7–8; is procedurally defaulted, id. at 8–10; and fails on
its merits because the attempted burglary conviction “may still qualify as a violent felony under
the statute’s enumerated clause,” id. at 11. Because, as explained below, the Court finds that
Robertson is entitled to no relief on the merits of his claim, the Court addresses only the merits.
Robertson’s argument—that his prior felony conviction for attempted residential burglary
can no longer be an ACCA predicate after Johnson—may well be valid, as far as it goes. The
government argues otherwise, but includes a full page of citations to adverse precedent from
other district courts and other circuits. Resp. 13–14. However, the Court need not reach the
question, because, although neither Robertson nor the government seem to have noticed it,
Robertson had sustained more than three felony convictions that qualified as ACCA predicates at
the time of his sentencing. Even without the use of the conviction to which Robertson objects,
he had sustained at least three qualifying felony convictions.
The ACCA applies a fifteen-year mandatory minimum for violations of 18
U.S.C.§ 922(g) if a defendant has sustained three or more convictions for “serious drug
4
offense[s]” or “violent felon[ies].” 18 U.S.C. § 924(e)(1). A “violent felony” is a crime
punishable by more than one year of imprisonment 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)(i), (ii). In Johnson, the Court held that the final clause of subsection
ii, qualifying conduct that presents a serious “potential risk” of physical injury to another as a
predicate offense, was unconstitutionally vague. 135 S.Ct. at 2557. Shortly afterward, the Court
declared that it had announced a substantive rule that applied to cases on collateral review.
Welch v. United States, 136 S. Ct. 1257, 1265 (2016). However, the rest of 18 U.S.C.
§ 924(e)(2)(B) remains intact, so that violent felonies still include those felonies with an element
of the threatened, attempted, or actual use of force, and the “enumerated” felonies: burglary,
arson, extortion, or crimes involving the use of explosives. Id. § 924(e)(2)(B)(ii). In looking to
whether a particular state law conviction counts as one of these enumerated offenses, courts use a
“formal categorical approach,” looking not to the facts of any particular past offense, but to the
statutory definition of an offense, and compare that definition to the “generic,” i.e. ACCA
version of the offense. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (citing Taylor v.
United States, 495 U.S. 575 (1990)).
Robertson’s argument in the instant motion depends on the incorrect assumption that his
ACCA enhancement was supported by only two completed (rather than attempted) burglaries,
since he acknowledges, correctly, that completed Illinois burglary, qualifies as “generic” ACCA
burglary. It is true that the Presentence Investigation Report (“PSR”), CR ECF No. 25, prepared
at the time of Robertson’s plea, does state that Robertson qualifies as an armed career criminal
5
under the USSG on the basis of just three prior convictions, PSR ¶ 27, which are listed in the
PSR’s criminal history section: an Illinois conviction for burglary, id. ¶ 31; an Illinois
conviction for residential burglary, id. ¶ 32; and an Illinois conviction for attempted residential
burglary, id. ¶ 34. While conceding, as he did at sentencing, that the first two convictions for
burglary and residential burglary qualify as ACCA predicates, Robertson now seeks relief on the
basis that the last, which was a conviction for attempted burglary, should not count as an ACCA
predicate post-Johnson.
However, the PSR also indicates that on July 30, 1991, the same day that he pleaded
guilty to the residential burglary, Robertson pleaded guilty to another, separate four-count charge
of burglary. PSR ¶ 33. The PSR does not rely on this conviction in declaring that Robertson
qualifies as an armed career criminal for purposes of the guidelines, perhaps because, since no
arrest intervened between it and the residential burglary conviction, Robertson received no
criminal history points for it.2 But regardless of their significance for Robertson’s criminal
history calculation under the guidelines, each of his felony burglary convictions was a “violent
felony or serious drug offense . . . committed on [an occasion] different from one another.” 18
U.S.C. § 924(e)(1). See United States v. Schieman, 894 F.2d 909, 913 (7th Cir. 1990) (adopting
a “separate and distinct criminal episode” test to determine how many ACCA predicate
convictions a defendant has sustained). Each of these three offenses was committed months
apart from each of the others; each occurred in a separate city; Robertson pleaded guilty to
charges for each contained in separate charging documents in separate cases. See PSR ¶¶ 31–33.
2
The guidelines technically count sentences, rather than convictions, and direct that multiple sentences will be
treated as separate sentences for the purposes of calculating a defendant’s criminal history if the sentences imposed
are for offenses separated from each other in time by an arrest, but that when sentences are not so separated, and are
imposed on the same day, the sentences shall be treated as a single sentence. USSG §4A1.2(2). Since Robertson
was sentenced for his first burglary conviction, his residential burglary conviction, and his second burglary
conviction all on July 30, 1991, but an arrest intervened between the first burglary offense and the second two, the
author of the PSR properly assessed three criminal history points for the first burglary and three for the residential
burglary, but none for the second burglary. See PSR ¶¶ 31–33.
6
Thus, whether or not Robertson’s final attempted residential burglary is taken as an
ACCA predicate, Robertson had sustained at least three convictions for a violent felony at the
time he pleaded guilty to being a felon in possession of a firearm. Robertson’s sentencing
enhancement was justified under 18 U.S.C. § 924(e), and he is entitled to no relief from it. See
Swank v. United States, No. 3:07-CR-131 RM, 2016 WL 1358458, at *3 (N.D. Ind. Apr. 5, 2016)
(acknowledging that a defendant’s attempted burglary conviction no longer qualified as an
ACCA predicate, but upholding his sentence under the ACCA on a § 2255 motion because he
had four other, separate qualifying convictions at the time of sentencing). Furthermore, since the
record in this case conclusively shows that Robertson is entitled to no relief, there is no need for
an evidentiary hearing. 28 U.S.C. § 2255(b).
A petitioner may only appeal a district court’s final order on a § 2255 proceeding if a
certificate of appealability issues. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); Miller–El v.
Cockrell, 537 U.S. 322, 335–36 (2003). When a district court enters a final order adverse to the
applicant, it must issue or deny a certificate of appealability. 2255 R. 11(a). A certificate of
appealability will issue only for those matters upon which “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, the petitioner must “demonstrate that reasonable jurists could debate whether [the]
challenge in [the] habeas petition should have been resolved in a different manner or that the
issue presented was adequate to deserve encouragement to proceed further.” Ouska v. CahillMasching, 246 F.3d 1036, 1046 (7th Cir. 2001). The Court finds that reasonable jurists could
not disagree that Robertson’s sentence enhancement under 18 U.S.C. § 924(e) was warranted,
and that Johnson did not alter its applicability to his conviction. No certificate shall issue.
7
CONCLUSION
Accordingly, Robertson’s amended petition for relief under 18 U.S.C. § 2255, ECF No.
6, is DENIED. His original petition, ECF No. 1, and his motion for status conference, ECF No.
11, are MOOT. The Clerk is directed to enter judgment and close the case.
Entered this 24th day of July, 2017.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?