Robinson v. United States of America

Filing 17

OPINION entered by Judge Richard Mills on 1/22/2018. The Successive Motion of Petitioner Charles R Robinson, IV to Vacate, Set Aside or Correct a Sentence under 28 U.S.C. § 2255, d/e 1 is DENIED. All other pending motions are TERMINATED. Judgment to be entered by the Clerk and, the case is TERMINATED. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Wednesday, 24 January, 2018 01:30:54 PM
Clerk, U.S. District Court, ILCD

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

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Petitioner,
v.
UNITED STATES OF AMERICA ,
Respondent.

NO. 16-3203

OPINION
RICHARD MILLS, U.S. District Judge:
This matter is before the Court following the Seventh Circuit’s Order granting
the Petitioner’s application for a successive motion under 28 U.S.C. § 2255 and
authorizing this Court to consider the Petitioner’s claim under Johnson v. United
States,

U.S.

, 135 S. Ct. 2551 (2015).

In Johnson, the United States Supreme Court held that “imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process.” Id. at 2563.
The Seventh Circuit’s authorization is based on the possibility that the
Petitioner was classified as a career offender at sentencing and one of his qualifying
convictions was pursuant to the residual clause and, further, that Johnson applies to
the guidelines. In Beckles v. United States,

U.S.

, 137 S. Ct. 886 (2017), the

United States Supreme Court held that because the advisory Guidelines are not
subject to vagueness challenges under the Due Process Clause, Johnson does not
apply to the guidelines. See id. at 890.
I.
The Petitioner was initially sentenced to life imprisonment. The Government
claimed the Petitioner’s sentence was based on the amount of drugs, not the career
offender guideline.

The Petitioner was recently re-sentenced to 360 months

imprisonment. In authorizing the successive § 2255 motion, the Seventh Circuit
noted it was not clear how that sentence was calculated. Regardless of how his
sentence was calculated, the Court concludes that Petitioner is entitled to no relief.
The residual clause of the career-offender guideline, unlike the residual clause
of the Armed Career Criminal Act (ACCA), is not susceptible to vagueness
challenges. See Beckles, 137 S. Ct. at 897. An important aspect of the Court’s
reasoning was that the ACCA constituted legislation that fixed the permissible range
of sentences for qualifying conduct. See id. at 892. The guidelines now “merely
guide the exercise of a court’s discretion in choosing an appropriate sentence within
the statutory range.” Id. Given that sentencing judges have discretion under the
guidelines, the constitutional concerns present in Johnson–affording notice to
defendants of what conduct will subject them to longer penalties under the ACCA
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and preventing arbitrary application of the ACCA’s standards–are not implicated by
the guidelines. See id.
It is worth noting that in her concurrence in Beckles, Justice Sotomayor
suggested that, based on the “formalistic distinction between mandatory and advisory
rules,” it is something of an open “question whether defendants sentenced to terms
of imprisonment” prior to United States v. Booker, 543 U.S. 220 (2005)–at a time
when the Guidelines fixed the permissible range of sentences–may challenge their
sentences based on vagueness. See Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J.,
concurring in the judgment). Justice Sotomayor did not express her view on the
merits of any such challenge. See id. (“That question is not presented by this case
and I, like the majority, take no position on its appropriate resolution.”).
The Petitioner was sentenced in 1999–several years before the Supreme Court
decided Booker. At the time, the Guidelines were “mandatory and binding on all
judges.” See Booker, 543 U.S. at 233. “Because they are binding on judges, we have
consistently held that the Guidelines have the force and effect of laws.” Id. at 234.
The Court recognized the ability of sentencing judges to depart in certain instances,
but noted that judges in most cases were required to impose a sentence within the
Guideline range. See id. In Booker, for example, the sentencing judge would have
been reversed if he did not impose a sentence within the applicable range. See id. at
3

235.
An argument can be made that the mandatory guidelines should be subject to
vagueness challenges for the same reason as the ACCA. Before Booker, the
Guidelines had the “full force and effect of laws” because judges were directed under
18 U.S.C. § 3553(b) to “impose a sentence of the kind, and within the range” set by
the Guidelines. See Booker, 543 U.S. at 234. Departures were to be determined by
considering “only the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). The policy
statements and commentary were also binding. See Stinson v. United States, 508 U.S.
36, 42-43 (1993). While “the advisory guidelines do not fix the permissible range of
sentences,” see Beckles, 137 S. Ct. at 892, the ACCA did fix the permissible range
and the mandatory guidelines are analogous in that respect. Accordingly, there is a
plausible argument for treating the mandatory career offender guideline’s residual
clause like that of the ACCA and finding that it is unconstitutionally vague, unlike
the advisory career offender guideline range.
II.
Before Johnson was decided by the Supreme Court, the Seventh Circuit held
that neither the advisory nor the mandatory guidelines were susceptible to vagueness
challenges. See United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012); United
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States v. Brierton, 165 F.3d 1133, 1138-39 (7th Cir. 1999). Following the decision
in Johnson, the Seventh Circuit held in United States v. Hurlburt, 835 F.3d 715 (7th
Cir. 2016) that vagueness challenges against the guidelines were permissible. See id.
at 725. The Supreme Court then in Beckles overruled Hurlburt. United States v.
Cook, 850 F.3d 328, 333 (7th Cir. 2017) (“This week, the Supreme Court overturned
that decision, holding that ‘the Guidelines are not subject to a vagueness challenge
under the Due Process Clause.’”). Based on the ruling in Beckles, a case can be made
that Tichenor and Brierton are once again good law that precludes the Court from
granting any habeas relief.
It is also worth noting there is a distinction between a federal statute such as
the ACCA that alters the statutory sentencing range and a mandatory guideline
scheme. The top of a guideline range is generally not the same as a legislatively
determined statutory maximum. See United States v. Rodriguez, 553 U.S. 377, 390
(2008). “[G]uidelines systems typically allow a sentencing judge to impose a
sentence that exceeds the top of the guidelines range under appropriate
circumstances.” Id.
Additionally, under the old mandatory guideline scheme, courts had the
authority to depart from the prescribed range in exceptional cases. See U.S.S.G. §
5K2.0; see also U.S.S.G. § 4A1.3 (criminal history departures).
5

Following the decision in Johnson and before the Supreme Court would adopt
the same rule in Beckles, the Eleventh Circuit held that “[t]he vagueness doctrine . .
. does not apply to advisory guidelines.” United States v. Matchett, 802 F.3d 1185,
1194 (11th Cir. 2015). The Eleventh Circuit later held that “the logic and principles
established in Matchett” apply to when the Guidelines were mandatory. In re Griffin,
823 F.3d 1350, 1354 (11th Cir. 2016). “The Guidelines–whether mandatory or
advisory–cannot be unconstitutionally vague because they do not establish the
illegality of any conduct and are designed to assist and limit the discretion of the
sentencing judge.” Id. The court further stated that “a rule extending Johnson and
concluding that it invalidates the crime-of-violence residual clause in the Guidelines
would establish only that the defendant’s guidelines range had been incorrectly
calculated, but it would not alter the statutory boundaries for sentencing set by
Congress for the crime.” Id. at 1355. This rationale is consistent with Beckles’
holding limiting vagueness challenges to sentencing laws that “fix the permissible
sentences for criminal offenses.” 137 S. Ct. at 892.
Since Beckles was decided, the United States Court of Appeals for the Seventh
Circuit has not yet addressed whether the mandatory Guidelines are open to
vagueness challenges. In Daniels v. United States, 2017 WL 2623873 (E.D. WI June
16, 2017), the Eastern District of Wisconsin found that “Hurlburt has been abrogated
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on the very issues upon which it abrogated Tichenor and Brierton. As a result, those
prior cases have been revived, and they require dismissal of Daniels’ claim.” See id.
at *3; see also Cross v. United States, 2017 WL 2345592 (E.D. WI. May 30, 2017),
at *3 (“[B]ecause Hurlburt has been abrogated on the very issues upon which it
abrogated Tichenor and Brierton, those prior cases have been revived. New life
having been breathed into them, Tichenor and Brierton compel the conclusion that
Cross’ vagueness challenge is without merit.”). The court in Daniels went on to
state:
[T]he Court is obliged to conclude that it is bound not by Hurlburt but
by the intervening authority of Beckles. If the Seventh Circuit can better
thread the needle through the analytical minefield left in the wake of
these cases, it is certainly welcome to do so. This Court cannot
undertake that task, since it is first and foremost bound to follow the law
given by higher courts. Because the Court cannot conclude with
certainty that Hurlburt’s abrogation of Tichenor has continuing force
after Beckles, the Court is constrained to follow Beckles, Tichenor, and
Brierton, which point ineluctably to the conclusion that even mandatory
Guidelines are not amenable to vagueness challenge.
Id. at 5.
This Court agrees with Judge Stadtmueller’s reasoning in Daniels and finds
that, based on controlling Supreme Court and Seventh Circuit precedent, vagueness
challenges may not be raised against the pre-Booker mandatory guidelines. Assuming
the Petitioner was sentenced under the career offender’s residual clause, he is entitled

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to no relief. However, because the issue is one that reasonable jurists might debate,
the Court will grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
Ergo, the Successive Motion of Petitioner Charles R. Robinson, IV to Vacate,
Set Aside or Correct a Sentence under 28 U.S.C. § 2255 [d/e 1] is DENIED.
The Clerk will terminate any other pending motions.1
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court
hereby grants a certificate of appealability regarding whether vagueness challenges
may be raised against the pre-Booker, mandatory Guidelines.
The Clerk will enter Judgment and terminate this case.
ENTER: January 22, 2018
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge

1

To the extent that Petitioner seeks to raise new issues in his supplement to his
successive § 2255 motion, those issues neither rely on a new rule of constitutional law
which applies retroactively nor do they address newly discovered evidence that might be
sufficient to establish that no reasonable factfinder would have found him guilty.
Accordingly, the Petitioner is entitled to no relief under 28 U.S.C. § 2255(h).

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