Carter v. United States of America
Filing
13
OPINION: Petitioner Philip Carter's Motion to Correct, Set Aside or Vacate Sentence Under 28 U.S.C. § 2255 (Doc. 1 ) and Amended Motion (Doc. 6 ) are GRANTED. Petitioner's conviction and sentence for carrying a firearm during a cri me of violence in violation of 18 U.S.C § 924(c), Count 3 of the Superseding Indictment in Criminal Case 04-cr-20005, shall be VACATED. As vacating Carter's conviction on Count 3 may impact the sentencing guidelines calculation and the appr opriate sentence for Counts 1 and 2, the Court finds that a complete resentencing is appropriate. See United States v. Brazier, No. 16-4258, 2019 WL 3774126, at *4 (7th Cir. Aug. 12, 2019). Accordingly, a resentencing hearing in Criminal Case No. 0 4-cr-20005 is hereby set for October 7, 2019, at 2:30 p.m. Petitioner shall remain in the custody of the Bureau of Prisons while awaiting his resentencing hearing. This Case is CLOSED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 08/28/2019. (SKN, ilcd)
E-FILED
Thursday, 29 August, 2019 03:03:47 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
PHILIP CARTER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-cv-02184
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Petitioner Philip Carter’s
Motion to Vacate Sentence Under 28 U.S.C. § 2255 (Doc. 1) and
Amended Motion (Doc. 6). In light of the Supreme Court’s recent
decision in United States v. Davis, 139 S.Ct. 2319 (2019), and as
explained below, the Court finds that Petitioner is entitled to relief
on his claim that his conviction and seven-year sentence of
imprisonment under 18 U.S.C. § 924(c) is unconstitutional.
Accordingly, Petitioner’s § 2255 Motion (Doc. 1) and Amended
Motion (Doc. 6) are GRANTED.
Page 1 of 18
I. BACKGROUND
In February 2004, Carter was charged by indictment of
unlawful possession of a firearm by a felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). See Indictment, United States v. Carter,
Central District of Illinois, Urbana Division, Case No. 04-cr-20005MPM-DGB-1 (hereinafter, Crim.) (d/e 6). In March 2004, a
Superseding Indictment was filed against Carter, again charging
him with unlawful possession of a firearm by a felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(e) (Count 1), as well as, kidnapping
in violation of 18 U.S.C. § 1201(a)(1) (Count 2), and carrying a
firearm during a crime of violence in violation of 18 U.S.C § 924(c)
(Count 3). See Superseding Indictment, Crim. (d/e 9). On April 14,
2004, following a jury trial, Carter was found guilty on all three
counts of the Superseding Indictment.
The Presentence Investigation Report (PSR), prepared in
anticipation of Carter’s sentencing, was issued on February 18,
2005. See PSR, Crim. (d/e 40). As recounted in the Government’s
Response and in the PSR, Carter had a lengthy criminal history,
and the underlying facts of the kidnapping offense were,
undoubtedly, violent. See Gov’t Resp. at 1-2 (Doc. 7); PSR ¶¶ 50Page 2 of 18
74, Crim. (d/e 40). The PSR found that Carter’s total offense level
for his offenses in Counts 1 and 2 was 42, under United States
Sentencing Guidelines (USSG), Chapters Two and Three, and
Carter’s Criminal History Score was VI, under USSG Chapter Four,
Part A. The PSR did not apply a 2-level enhancement for use of a
dangerous weapon pursuant to U.S.S.G. § 2A4.1(b)(3), due to his
conviction on Count 3. PSR ¶ 39. The PSR determined Carter’s
sentencing guideline range to be 360 months to life imprisonment.
PSR ¶ 105.
The PSR further found that Carter was an Armed Career
Criminal based on five previous convictions for “crimes of violence”:
Unlawful Imprisonment in the First Degree, Logan County Court,
Case No. 81-CR-065; Escape, Davidson County Criminal Court
Case, No. 86-W-519; Complicity to Burglary in the Third Degree-2
counts, Simpson District Court, Case No. 96-CR-131; Burglary in
the Third Degree-2 counts, Butler District Court, Case No. 95-CR00072-001; and Sexual Abuse in the First Degree-4 counts,
Grayson Circuit Court, Case No. 98-CR-00065. PSR ¶ 48.
However, because Carter’s offense level was equal to the level
provided for by the Armed Career Criminal guideline (42), and
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because Carter’s criminal history score was already equal to the
score provided by the Armed Career Criminal guideline (VI), Carter’s
guideline range was not enhanced based on his status as an Armed
Career Criminal.
Carter’s statutory mandatory minimum sentence on Count 1
was 15 years because of his status as an Armed Career Criminal.
See 18 U.S.C. § 924(e). Additionally, Carter was statutorily required
to serve a seven-year sentence on Count 3, carrying a firearm
during a crime of violence in violation of 18 U.S.C § 924(c),
consecutive to any sentence imposed on Counts 1 and 2. See 18
U.S.C. § 924(c)(1)(A)(ii).
On March 10, 2005, Judge Michael P. McCuskey sentenced
Carter to 600 months’ imprisonment, consisting of 516 months on
each of Counts 1 and 2 to be served concurrently, and 84 months
on Count 3 to be served consecutively to Counts 1 and 2, followed
by 5 years’ supervised release. See Judgment, Crim., (d/e 43).
On appeal, appointed counsel filed an Anders brief, noting
that any argument that Carter’s sentence was unreasonable would
be frivolous. United States v. Carter, No. 05-1629 (7th Cir.). The
Seventh Circuit granted counsel’s motion to withdraw, and
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dismissed the appeal on July 24, 2006. Carter did not seek a writ
of certiorari, so his conviction became final in 2006.
On June 10, 2016, Carter filed a pro se Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).
This Court dismissed Carter’s ineffective assistance of counsel claim
and his claim of an alleged error in his Armed Career Criminal
designation on July 13, 2016. See Order (Doc. 3). However, the
Court ordered that Carter may proceed on his claim that his sevenyear sentence of imprisonment under 18 U.S.C. § 924(c) is
unconstitutional in light of United States v. Johnson, 135 S.Ct.
2551 (2015), and appointed the Federal Public Defender as counsel
for Carter. Carter, through counsel, filed an amended motion in
August 2016 (Doc. 6). The Government filed a response (Doc. 7),
and Carter filed a Reply (Doc. 8).
In March 2017, Carter filed a Motion to Cite Additional
Authority after the Seventh Circuit decided United States v.
Jenkins, 849 F.3d 390 (2017), which held that federal kidnapping
under 18 U.S.C. § 1201(a) did not qualify as a crime of violence
under § 924(c)(3). However, on June 15, 2018, the Supreme Court
vacated the Seventh Circuit’s judgment for further consideration in
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light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (holding the
residual clause of 18 U.S.C. § 16—which is worded identically to
the residual clause of 18 U.S.C. § 924(c)(3)—was unconstitutionally
vague). In January 2019, after additional briefing, the Seventh
Circuit stayed Jenkins until the Supreme Court announced its
decision in United States v. Davis, No. 18-431.
On June 24, 2019, the Supreme Court announced its decision
in Davis, which held that courts must use the categorical approach
to determine if an offense is a crime of violence under § 924(c), and
that § 924(c)’s residual clause is unconstitutionally vague. United
States v. Davis, 139 S.Ct. 2319 (2019).
On July 10, 2019, finding that Davis likely resolves Carter’s
claim in his favor, this Court ordered the Government to inform the
Court if it would like to request any additional briefing addressing
the impact of the Davis. After the Government sought an extension,
the Government was given until August 19, 2019, to file any
supplemental briefing. See July 23, 2019, Text Order. The
Government has not submitted any further filings, so the Court
Page 6 of 18
presumes that it does not wish to file any supplemental briefing.
This Order follows.
II. ANALYSIS
A person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief
under § 2555 is an extraordinary remedy because a § 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under § 2255 is “appropriate for an error of
law that is jurisdictional, constitutional, or constitutes a
fundamental defect which inherently results in a complete
miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594
(7th Cir. 2004) (internal quotation marks omitted).
Here, Carter argues his conviction for carrying a firearm in
furtherance of a crime of violence pursuant to 18 U.S.C. § 924(c) is
invalid in light of the Supreme Court’s opinion in Johnson v. United
States, 135 S. Ct. 2551 (2015). A “crime of violence” under § 924(c)
is defined as a felony offense that:
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
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(B) [ ] by its nature, involves a substantial risk that
physical force against the person or property of
another may be used in the course of committing the
offense.
18 U.S.C. § 924(c)(3). Section 924(c)(3)(A) is referred to as the “force
clause,” and § 924(c)(3)(B) is referred to as the “residual clause.”
See United States v. Jenkins, 849 F.3d 390, 392 (2017). In light of
recent Supreme Court and Seventh Circuit precedent, Carter’s
claim has merit and his claim necessarily relies on Johnson and
Davis. Moreover, the Court finds that Carter’s claim is not
procedurally defaulted or untimely and that he is entitled to relief
under 28 U.S.C. § 2255.
A. Carter’s § 924(c) Conviction and Sentence is Invalid
Because Federal Kidnapping is Not a Crime of Violence.
After the Supreme Court’s decision in United States v. Davis,
139 S. Ct. 2319 (2019), and the Seventh Circuit’s decision in United
States v. Jenkins, 849 F.3d 390 (7th Cir. 2017), Carter’s claim has
merit. In 2015, the Supreme Court held that the similarly worded
residual clause of the ACCA, § 924(e), was unconstitutionally vague.
Johnson, 135 S.Ct. at 2563. After Johnson, the validity of the §
924(c)(3)(B) residual clause was uncertain. However, on June 24,
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2019, the Supreme Court, in United States v. Davis, 139 S. Ct.
2319 (2019), held that § 924(c)’s residual clause is
unconstitutionally vague as well.
After Davis, a conviction under § 924(c) is only valid if the
underlying offense qualifies as a crime of violence under the “force”
clause. Here, Carter’s underlying offense is federal kidnapping
under 18 U.S.C. § 1201(a)(1). In United States v. Jenkins, 849 F.3d
390 (7th Cir. 2017), reh’g denied (Apr. 20, 2017), cert. denied, 137
S. Ct. 2280 (2017), and cert. granted, judgment vacated on other
grounds, 138 S. Ct. 1980 (2018), the Seventh Circuit held that
federal kidnapping under 18 U.S.C. § 1201(a) did not qualify as a
crime of violence under § 924(c)’s force clause.1 The federal
kidnapping statute punishes:
[w]hoever unlawfully seizes, confines, inveigles, decoys,
kidnaps, abducts, or carries away and holds for ransom
or reward or otherwise any person ... when the person is
willfully transported in interstate or foreign commerce ...
While this judgment was vacated by the Supreme Court for further
consideration in light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018), the
Seventh Circuit has now again entered its judgment vacating Jenkin’s
conviction in light of Davis, and its holding that federal kidnapping under 18
U.S.C. § 1201(a) did not qualify as a crime of violence under § 924(c)’s force
clause remains valid. See United States v. Jackson, No. 14-2898, 2019 WL
3423363, at *2 (7th Cir. July 30, 2019).
1
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18 U.S.C. § 1201(a). In Jenkins, the Government did not argue that
“unlawfully seizing, confining, inveigling, decoying, kidnapping,
abducting, or carrying away” required force, and the Seventh
Circuit found that “hold[ing] for ransom or reward or otherwise”
could be accomplished without physical force. Jenkins, 849 F.3d at
393. Accordingly, Carter’s offense of federal kidnapping pursuant
to 18 U.S.C. § 1201(a) does not qualify as a crime of violence for the
purposes of § 924(c).
B. Carter’s Claim Relies on Johnson, as well as Davis.
In the Government’s September 2016 response, the
Government argued that Carter’s claim is actually based on
Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v.
United States, 136 S. Ct. 2243 (2016), rather than Johnson. This is
so, the Government argued, because Carter’s conviction relied on
the force clause, which Johnson did not impact. And, his claim
that federal kidnapping does not fall under the force clause relies
on Mathis and Descamps, not Johnson. And, accordingly, the
Government argued that Carter is not entitled to relief because his
claim is procedurally defaulted and untimely and because
Descamps does not apply retroactively.
Page 10 of 18
However, the Seventh Circuit’s decision in Cross v. United
States, 892 F.3d 288 (7th Cir. 2018), rejected a nearly identical
argument. The petitioners in Cross had been sentenced as career
offenders under the mandatory sentencing guidelines. Id. at 291.
In light of Johnson, the petitioners brought § 2255 Motions and
argued that the residual clause in the career offender guideline was
unconstitutionally vague. Id. The Government argued that one
petitioner’s claim was actually based on an earlier case—Curtis
Johnson v. United States, 559 U.S. 133, 130 S. Ct. 1265 (2010). At
the time of sentencing, the petitioner’s offense of simple robbery
qualified under the elements clause, while after Curtis Johnson, his
offense only qualified under the residual clause. Cross, 892 F.3d at
297. The Government argued that Curtis Johnson, rather than
Johnson, triggered the limitations period under § 2255(f)(3), and the
petitioner’s claim was now untimely. Id.
The Seventh Circuit, however, found that “[p]rior to Johnson,
[the petitioner] had no basis to assert that his sentence was illegal
and thus he could not claim a right to be released. Curtis Johnson
did not change that fact: all it did was to eliminate the elements
clause as a basis for [petitioner’s] status, which became entirely
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dependent on the residual clause. There matters stayed
until Johnson. Only then could [the petitioner] file a nonfrivolous
motion for relief.” Id.
The same is true here. Prior to Johnson, and now, Davis, any
argument based on Descamps that Carter’s federal kidnapping
offense was not a crime of violence for the purposes of § 924(c)
under the force clause would have been frivolous. Carter’s
conviction would have remained valid under the residual clause. It
was not until Johnson that Carter could “file a nonfrivolous motion
for relief.”
Moreover, the Seventh Circuit’s decision in Jenkins did not
rely on Mathis or Descamps in reaching its holding that federal
kidnapping was not a crime of violence under the force clause of
§ 924(c). In Jenkins, the Government pointed to numerous preJohnson cases that had determined federal kidnapping was a crime
of violence, but the Seventh Circuit found that “none of [those]
cases found that kidnapping had physical force as an element, and
one even expressly stated that it does not.” Jenkins, 849 F.3d at
394. Accordingly, the Court finds that the federal kidnapping
statute’s status as a crime of violence was necessarily affected by
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Johnson and that Carter’s claim, therefore, relies on both Johnson
and Davis.
C. Carter’s Claim is Timely Because Both Johnson and Davis
Apply Retroactively.
The Government argued that Carter’s claim was untimely
because it relied on Descamps, which does not apply retroactively
on collateral review. Since the Court finds that Carter’s claim relies
on Johnson and Davis, the Government’s argument that Descamps
is not retroactive is moot. Moreover, the Court finds that Carter’s
claim is timely. Pursuant to § 2255(f)(3), a claim is timely if it is
brought 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.” 28 U.S.C.
§ 2255(f)(3). The Supreme Court held its holding in Johnson
applied retroactively to cases on collateral review. See Welch v.
United States, 136 S. Ct. 1257, 1268 (2016) (“Johnson announced a
substantive rule that has retroactive effect in cases on collateral
review”). Therefore, Carter, who brought his claim within one year
Page 13 of 18
of the Johnson decision, can attack the validity of his sentence in a
§ 2255 motion under Johnson. Id.
Additionally, the Court finds that Davis, like Johnson, applies
retroactively on collateral review. Generally, “new constitutional
rules of criminal procedure will not be applicable to those cases
which have become final before the new rules are announced.”
Teague v. Lane, 489 U.S. 288, 310 (1989). However, new
substantive rules generally apply retroactively, as well as new
“‘watershed rules of criminal procedure,’” which are procedural
rules “implicating the fundamental fairness and accuracy of the
criminal proceeding.” Welch, 136 S. Ct. at 1264 (2016) (internal
citations omitted).
Like Johnson, Davis is undoubtedly a new rule as applied to
Carter’s case. See Teague v. Lane, 489 U.S. 288, 301 (1989) (“[A]
case announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became
final.”) (emphasis in original). Moreover, like Johnson, Davis is a
substantive decision because it has “changed the substantive reach
of [§ 924(c),] altering ‘the range of conduct or the class of persons
that the [statute] punishes.’” Welch, 136 S. Ct. at 1265 (citing
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Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519
(2004)). Additionally, while the Seventh Circuit has not yet
addressed the issue of Davis’s retroactivity, the Eleventh Circuit has
thoroughly addressed the issue and held that Davis applies
retroactively. In re Hammoud, No. 19-12458-G, 2019 WL 3296800,
at *4 (11th Cir. July 23, 2019) (“In other words, Davis announced a
new substantive rule, and Welch tells us that a new rule such as
the one announced in Davis applies retroactively to criminal cases
that became final before the new substantive rule was
announced.”). Accordingly, the Court finds that Carter can attack
the validity of his sentence in a § 2255 motion that relies on Davis.
Carter’s claim is, therefore, timely under § 2255(f)(3) due to its
reliance on Johnson, as well as, Davis.
D. Carter’s Procedural Default is Excused.
In its September 2016 brief, the Government also argued that
Carter’s claim was procedurally defaulted. If a defendant fails to
raise a claim on direct review, he must show both cause and
prejudice in order to raise the claim in post-conviction relief. See
Bousley v. United States, 523 U.S. 614, 622 (1998). Here, the
Court finds that Carter has established prejudice because he was
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subject to an extended prison term as a result of his § 924(c)
conviction. See Cross v. United States, 892 F.3d 288, 295 (7th Cir.
2018) (We have no doubt that an extended prison term . . .
constitutes prejudice.”).
Carter has also established cause for failing to object at trial.
“[A] claim that ‘is so novel that its legal basis is not reasonably
available to counsel” may constitute cause for a procedural
default.’” Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct.
1604, 1611 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct.
2901, 2910 (1984). At the time of Carter’s trial and direct appeal,
“no one—the government, the judge, or the [defendant]—could
reasonably have anticipated Johnson.” Cross v. United States, 892
F.3d 288, 295 (7th Cir. 2018) (quoting United States v. Synder, 871
F.3d 1122, 1127 (10th Cir. 2017). Likewise, while Davis might have
been anticipated after Johnson was decided, at the time of Carter’s
trial and direct appeal, no one could have reasonably anticipated
Davis. Accordingly, the Court finds that Carter has shown both
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cause and prejudice for failing to raise his claim previously, and the
Court will not dismiss his claim for procedural default.
The Government’s final arguments from its September 2016
brief—that the residual clause of § 924(c) is not unconstitutionally
vague, and that federal kidnapping is a crime of violence under
either the force or the residual clause—are foreclosed by Davis and
Jenkins, as explained above. Accordingly, the Court finds that
Carter is entitled to relief under § 2255, and his conviction and
sentence for carrying a firearm during a crime of violence in
violation of 18 U.S.C § 924(c) must be vacated.
III. CONCLUSION
For the reasons stated above, Petitioner Philip Carter’s Motion
to Correct, Set Aside or Vacate Sentence Under 28 U.S.C. § 2255
(Doc. 1) and Amended Motion (Doc. 6) are GRANTED. Petitioner’s
conviction and sentence for carrying a firearm during a crime of
violence in violation of 18 U.S.C § 924(c), Count 3 of the
Superseding Indictment in Criminal Case 04-cr-20005, shall be
VACATED.
As vacating Carter’s conviction on Count 3 may impact the
sentencing guidelines calculation and the appropriate sentence for
Page 17 of 18
Counts 1 and 2, the Court finds that a complete resentencing is
appropriate. See United States v. Brazier, No. 16-4258, 2019 WL
3774126, at *4 (7th Cir. Aug. 12, 2019). Accordingly, a
resentencing hearing in Criminal Case No. 04-cr-20005 is hereby
set for October 7, 2019, at 2:30 p.m. Petitioner shall remain in the
custody of the Bureau of Prisons while awaiting his resentencing
hearing. This Case is CLOSED.
ENTER: August 28, 2019
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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