Oliea v. Krueger
Filing
17
ORDER and OPINION entered by Judge Sue E. Myerscough on 8/5/2019. Magistrate Judge Schanzle-Haskins' Report and Recommendation (Doc. 8 ) is ADOPTED with modifications as stated in the Order and Opinion. The Petitioner's Objections (Doc. 11 ) are OVERRULED. Accordingly, Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1 ) is DISMISSED with prejudice pursuant to 28 U.S.C. § 2255(e). This Case is CLOSED. (SEE WRITTEN ORDER & OPINION) (MAS, ilcd)
E-FILED
Tuesday, 06 August, 2019 02:56:36 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARIO OLIEA,
Petitioner,
v.
STEVE KALLIS, Warden
Respondent.
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No. 17-cv-3007
ORDER AND OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Before the Court is Magistrate Judge Tom Schanzle-Haskins’
Report and Recommendation (d/e 8), which recommends denying
Petitioner Mario Oliea’s Petition for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (d/e 1), and Petitioner’s Objections to the
Report (d/e 11). For the reasons set forth below, the Court
OVERRULES Petitioner’s Objections (d/e 11), ADOPTS the
conclusion of Magistrate Judge Schanzle-Haskins’ Report and
Recommendation (d/e 8), as modified below, and DISMISSES
Petitioner’s Petition (d/e 1) pursuant to 28 U.S.C. § 2255(e).
Page 1 of 18
I. BACKGROUND
The relevant facts were fully set forth in the “Statement of
Facts” section of the Report and Recommendation, which the Court
adopts. In 2007, Oliea pled guilty to two counts of possession with
intent to distribute a substance containing five or more grams of
cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). United States v. Oliea, United States District Court,
Central District of Illinois, Springfield Division, Case No. 07-cr30033 (hereinafter “Crim.”), Notice of Plea (d/e 10).
Prior to the guilty plea, the Government had filed a Notice
pursuant to 18 U.S.C. § 851, which stated that Oliea had two prior
felony convictions in Illinois for manufacture/delivery of controlled
substances in violation of 720 ILCS 570/401. See Crim., Notice
(d/e 9). Specifically, the Notice stated he was convicted of
manufacture/delivery of a controlled substance in violation of 720
ILCS 570/401(c)(2), in Sangamon County, Illinois, Case No. 2002CF-967, and of manufacture/delivery of a controlled substance
within 1000 feet of a church in violation of 720 ILCS 570/407(b)(2)
(which addresses violations of 720 ILCS 570/401(d) that are within
1000 feet of a church), in Sangamon County, Illinois, Case No.
Page 2 of 18
2003-CF-789. Id.; Resp. App. 45, 49 (d/e 3-1). Both of these
convictions involved cocaine. See Crim., PSR ¶¶34, 39, (d/e 17).
Additionally, not listed on the Notice, Oliea has a second conviction
for manufacture/delivery of a controlled substance within 1000 feet
of a church in violation of 720 ILCS 570/407(b)(2), in Sangamon
County, Illinois, Case No. 2003-CF-792.
The Court notes that Oliea claims that the Report and
Recommendation “erroneously states and/or implies the Petitioner’s
second conviction under 720 ILCS 570/401 is for cocaine as
opposed to crack cocaine.” Pet. Objs. at 2 (d/e 11). The Report and
Recommendation says “[i]n the second case, Oliea delivered less
than a gram of substance containing cocaine to a police officer.”
R&R at 2 (d/e 8). The Court finds no error in this language, as it
was taken directly from the Presentence Investigation Report, as
well as the Indictment in his state court case. See Crim., PSR at
¶ 39; Resp. App. 50-51 (d/e 3). Moreover, this fact has no impact
on the resolution of this case.
In light of the § 851 Notice, as well as the weight of the drugs
involved, Oliea faced a statutory imprisonment range of 10 years to
life imprisonment for each of the two counts. See 21 U.S.C.
Page 3 of 18
§ § 841(b)(1)(B). Without the § 851 Notice, Oliea would have only
been subject to a statutory minimum of 5 years’ imprisonment and
a maximum of 40 years’ imprisonment.
The U.S. Probation Office prepared a Presentence Investigation
Report. Crim., PSR (d/e 17). The PSR found that his two
convictions for manufacture/delivery of a controlled substance were
“controlled substance offenses” as defined in U.S.S.G. § 4B1.2,
making Oliea qualify as a Career Offender pursuant to U.S.S.G.
§ 4B1.1(a). Id. ¶26. Accordingly, the PSR concluded that his
advisory sentencing guideline range was 262 to 327 months’
imprisonment. Id. ¶88.
There were no objections to the PSR, and the Court adopted its
findings. See Crim., Oct. 29, 2007 Minute Entry. On October 29,
2007, Oliea was sentenced to 262 months’ imprisonment on each
count to run concurrently. Id.; Crim., Judgment (d/e 13). He did
not appeal his sentence.
As detailed in the Report and Recommendation, since Oliea’s
sentencing, there have been a number of revisions to both the
Sentencing Guidelines and 21 U.S.C. § 841(b)(1) that reduced the
applicable sentencing ranges for offenses involving crack cocaine
Page 4 of 18
like Oliea’s. R&R at 4-5 (d/e 8). At the time of filing this Petition,
Oliea had filed numerous motions to reduce his sentence in light of
these changes, but they had all been denied because the Court
found that his sentence was based on the finding that he was a
Career Offender, not on the quantity of cocaine for which he was
held responsible. Id.
In January 2017, Oliea brought this Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241. He argues that, in light of
Descamps v. United States, 570 U.S. 254 (2013), and Mathis v.
United States, 136 S.Ct. 2243 (2016), the sentencing court
incorrectly interpreted the Career Offender Guidelines. Specifically,
he argues that under Descamps and Mathis, neither of his two prior
Illinois felony convictions for manufacture/delivery of a controlled
substance was a “controlled substance offense” under U.S.S.G.
§ 4B1.1, as defined in § 4B1.2. Oliea also argues his convictions do
not qualify as “felony drug offenses” as defined in 21 U.S.C.
§ 802(44) and, therefore, he should not have received the statutory
enhancement under 21 U.S.C. § 841(b)(1)(B).
Respondent filed his response (d/e 3), and Oliea filed a reply
(d/e 6). The petition was then referred to Magistrate Judge Tom
Page 5 of 18
Schanzle-Haskins, who has recommended that the Petition be
dismissed because Oliea has not shown that there has been a
miscarriage of justice. R&R (d/e 8).
Oliea objected to the Report and Recommendation on four
grounds. Pet. Objs. (d/e 11). First, Oliea objects to the description
of his second conviction under 720 ILCS 570/401 to the extent it
implies it is for cocaine as opposed to crack cocaine, as addressed
above. Oliea argues in his second and third objections that the
Magistrate Judge’s analysis failed to compare 720 ILCS 570/401’s
“cocaine element” against the federal definition of “cocaine,” and
that the state definition is broader than the federal definition.
Finally, as his fourth abjection, Oliea argues the Magistrate Judge
was wrong in his conclusion that 720 ILCS 570/401’s “cocaine
element” “is divisible from any cocaine analog” because “Illinois’
definition includes chemically equivalent analogs within a single
indivisible definition of cocaine.” Pet. Objs. at 2-5 (d/e 11).
Petitioner has also filed two supplemental notices (d/e 15 and 16)
seeking to rely on United States v. Elder, 900 F.3d 491 (7th Cir.
2018), and Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018).
Page 6 of 18
Since briefing concluded in this case, however, Oliea has
sought and obtained relief under Section 404 of the First Step Act of
2018 in the sentencing court. See Crim., Motion to Reduce
Sentence (d/e 45). In 2010, Congress passed the Fair Sentencing
Act of 2010 to reduce the sentencing disparity between crack and
powder cocaine offenses. The First Step Act gave sentencing courts
discretion to resentence individuals such as Oliea, who had been
sentenced prior to the Fair Sentencing Act. Under the new
statutory sentencing range, due to the weight of the drugs involved,
Oliea was eligible to be sentenced pursuant to a statutory range of 0
to 30 years. See 21 U.S.C. § 841(b)(1)(C) (“If any person commits
such a violation after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of
imprisonment of not more than 30 years.”). His new advisory
guideline range was 188 to 235 months’ imprisonment. Under the
new statutory sentencing ranges, were the § 851 Notice and
statutory enhancement not to apply, as he argues in this Petition,
the statutory range is 0 to 20 years. Id.
Oliea, through counsel, argued he should receive a below
guidelines sentence of time served. Crim., Mot. to Reduce Sent.
Page 7 of 18
(d/e 48). On June 26, 2019, this Court granted his Motion to
Reduce Sentence and resentenced Oliea to time served. Crim.,
Order for Sent. Reduction (d/e 53). As a result, Oliea is no longer
in custody.
II. LEGAL STANDARD
Generally, federal prisoners who seek to collaterally attack
their conviction or sentence must proceed by way of motion under
28 U.S.C. § 2255, the so-called “federal prisoner’s substitute for
habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368,
at *1 (7th Cir. Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012)). The exception to this rule is found in § 2255
itself: a federal prisoner may petition under § 2241 if the remedy
under § 2255 “is inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). Under the “escape hatch” of
§ 2255(e), “[a] federal prisoner should be permitted to seek habeas
corpus only if he had no reasonable opportunity to obtain earlier
judicial correction of a fundamental defect in his conviction or
sentence because the law changed after his first 2255 motion.” In
re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Therefore, the
Seventh Circuit has held that “alternative relief under § 2241 is
Page 8 of 18
available only in limited circumstances: specifically, only upon
showing “(1) that he relies on ‘not a constitutional case, but a
statutory-interpretation case, so [that he] could not have invoked it
by means of a second or successive section 2255 motion,’ (2) that
the new rule applies retroactively to cases on collateral review and
could not have been invoked in his earlier proceeding, and (3) that
the error is ‘grave enough ... to be deemed a miscarriage of justice
corrigible therefore in a habeas corpus proceeding,’ such as one
resulting in ‘a conviction for a crime of which he was innocent.’”
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016), cert. denied
sub nom. Montana v. Werlich, 137 S. Ct. 1813, 197 L. Ed. 2d 758
(2017) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)).
III. ANALYSIS
Initially, the Court notes that, despite his release from prison,
Oliea’s Petition is not necessarily moot. Rather, whether a § 2241
petition is moot due to a prisoner’s release from prison depends on
whether “he could obtain ‘any potential benefit’ from a favorable
decision.” Pope v. Perdue, 889 F.3d 410, 414 (7th Cir. 2018) (citing
United States v. Trotter, 270 F.3d 1150, 1152 (7th Cir. 2001)
(“Unless we are confident that [the former inmate] cannot benefit
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from success on appeal, the case is not moot.”)). Here, Oliea is still
serving a term of supervised released. Therefore, he could still
benefit from a favorable decision since a favorable finding “would
carry ‘great weight’ in a § 3583(e) motion to reduce” his term of
supervised release. Id.
Nonetheless, the Court finds the Petition must be dismissed.
Magistrate Judge Schanzle-Haskins’ Report concluded that Oliea’s
Petition must be dismissed because Oliea has not shown that there
was a miscarriage of justice that would allow him to meet the
requirements of the § 2255(e) savings clause. The Court “may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). The Court reviews de
novo any part of the Report and Recommendation to which a proper
objection has been made. Id. While the Court agrees with
Magistrate Judge Schanzle-Haskins’ conclusion, in light of
intervening law and the intervening changes in Oliea’s sentence
since the filing of the Report and Recommendation, the Court relies
on different reasons for finding that there has not been a
Page 10 of 18
miscarriage of justice than Magistrate Judge Schanzle-Haskins did
in his report.
Oliea argues that his sentence is illegal because he should not
have been subject to the statutory enhancement for having a prior
felony drug offense and because he should not have been deemed a
career offender under the advisory sentencing guidelines. Both
claims rely on Descamps v. United States, 570 U.S. 254 (2013), and
Mathis v. United States, 136 S.Ct. 2243 (2016). As Magistrate
Judge Schanzle-Haskins found, both of these cases are cases of
statutory interpretation, and, therefore, meet the first requirement
to fall within the § 2255(e) savings clause. See R&R at 7 (d/e 8).
Respondent did not argue that Mathis or Descamps are not
retroactive, but only that Oliea has not shown that there has been a
miscarriage of justice. Resp. (d/e 3). Accordingly, the Court limits
its analysis to the miscarriage of justice requirement, and finds that
Oliea’s alleged errors do not qualify as a miscarriage of justice.
Assuming, arguendo that Oliea is correct that his sentence
should not have been subject to a statutory enhancement and that
he should not have been deemed a career offender, Oliea cannot
show he is suffering from a miscarriage of justice. The Seventh
Page 11 of 18
Circuit has found an error is grave enough to meet this standard if
the error results in a conviction “of a nonexistent crime,”
Davenport, 147 F.3d at 611, or “a ‘fundamental error equivalent to
actual innocence,’” Brown v. Rios, 696 F.3d 638, 641 (7th Cir.
2012) (citing Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir. 2002). A
miscarriage of justice can occur “when a petitioner’s sentence is
increased by application of an enhancement of which he was
actually innocent.” Perrone v. United States, 889 F.3d 898, 904
(7th Cir.), cert. denied, 139 S. Ct. 654, 202 L. Ed. 2d 502 (2018)
(citing Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir.
2011) (finding that a miscarriage of justice occurred when a
defendant sentenced under the mandatory sentencing guidelines
was erroneously classified as a career offender, increasing his
mandatory sentencing guidelines range)).
Here, assuming Oliea’s underlying claim that he should not
have been subject to an increased statutory sentencing range due
to his prior convictions has merit, Oliea was not sentenced based
“upon the equivalent of a nonexistent offense.” Oliea pled guilty to
two counts of possession with intent to distribute a substance
containing five or more grams of cocaine base (“crack”), and there is
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no suggestion that he is actually innocent of that underlying
offense. When Oliea first brought his Petition, he was serving a
sentence of 262 months’ imprisonment. Crim., Judgment (d/e 13).
The sentencing enhancement at that time had increased Oliea’s
sentencing range from a minimum of 5 years and a maximum of 40
years imprisonment, to a minimum of 10 years and a maximum of
life imprisonment. At this time, assuming the enhancement was
erroneously applied, Oliea may have had an arguable claim of a
miscarriage of justice. Similar to the petitioner in Navarez, Oliea
was subject to an enhanced imprisonment range whereby a judge
could not have sentenced him to less than 10 years imprisonment.
Although, the merits of this argument are dubious, as his sentence
was still well-below the statutory maximum he would have been
subject to without the sentencing enhancement and there is no
indication that he would have received a sentence lower than 10
years even if the judge had been able to do so.
However, now that Oliea has been sentenced to time served, it
is not possible to classify any error in applying the statutory
sentencing enhancement as a miscarriage of justice. In light of his
resentencing under the First Step Act, Oliea was no longer subject
Page 13 of 18
to a mandatory minimum sentence—meaning this Court was free to
impose any sentence below the applicable statutory maximum.
And, his sentence of time-served was well below both the 30-year
statutory maximum that was deemed to apply and the 20-year
statutory maximum that would have applied had Oliea not been
deemed to have a prior felony drug offense. Oliea, therefore, cannot
show that his sentence was “increased by application of an
enhancement of which he was actually innocent.” Perrone, 889
F.3d at 904 (emphasis added). Accordingly, this claim must be
dismissed.
Oliea’s challenge to his advisory sentencing guidelines
calculation fares no better in light of the Seventh Circuit’s decisions
in Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013) (Hawkins
I), and Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013)
(Hawkins II). Given the interest in finality, in Hawkins I the
Seventh Circuit held that an erroneous interpretation of the
advisory sentencing guidelines is not reversible in post-conviction
proceedings so long as the sentence imposed was not greater than
the statutory maximum. Hawkins I, 706 F.3d at 823-25; see also
United States v. Coleman, 763 F.3d 706, 708-10 (7th Cir. 2014)
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(“[I]n the context of postconviction proceedings, a sentence well
below the ceiling imposed by Congress . . . does not constitute a
miscarriage of justice.”). In Hawkins I, the petitioner qualified as a
career offender based on two prior felony convictions for walkaway
escape. Id. at 821. Three years after Hawkins was resentenced
under the advisory sentencing guidelines, the Supreme Court held
that an “escape” that takes the form of a failure to report did not
constitute a violent felony under the Armed Career Criminal Act, 18
U.S.C. § 924(e). Chambers v. United States, 555 U.S. 122, 127-30,
129 S.Ct. 687 (2009). Given Chambers, a walkaway escape is also
not a violent felony under the Armed Career Criminal Act or under
the similarly worded career offender guidelines. Hawkins I, 706
F.3d at 822 (citing cases). Hawkins filed a § 2255 motion
challenging his sentence on this basis, but the district court denied
the motion and the Seventh Circuit affirmed. Id. The Seventh
Circuit reasoned that, after United States v. Booker, 543 U.S. 220
(2005), the Guidelines are not binding on the district court and “the
judge may not even presume that a sentence within the applicable
guidelines range would be proper.” Id. Rather, the judge must
independently determine the appropriate sentence pursuant to 18
Page 15 of 18
U.S.C. § 3553. Id. at 823. The court found that while the advisory
guidelines remain influential, given the interest in finality, an error
in the interpretation of an advisory guideline “is not a proper basis
for voiding punishment lawful when imposed.” Id.
Hawkins moved for rehearing in light of Peugh v. United
States, 133 S. Ct. 2072 (2013), in which the Supreme Court held
the advisory Guidelines were subject to constitutional challenges
under the ex post facto clause “notwithstanding the fact that
sentencing courts possess discretion to deviate from the
recommended sentencing range.” Peugh, 133 S. Ct. at 2082. The
Seventh Circuit denied rehearing finding that Peugh did not alter
their analysis since Peugh involved constitutional error (a violation
of the ex post facto clause), Peugh was a case on direct appeal
which has a lower legal standard than post-conviction relief does,
and Peugh’s retroactivity was uncertain. Hawkins II, 724 F.3d at
916-18 (“[I]t doesn’t follow that post-conviction relief is proper just
because the judge, though he could lawfully have imposed the
sentence that he did impose, might have imposed a lighter sentence
had he calculated the applicable guidelines sentencing range
correctly.”).
Page 16 of 18
Here, Oliea’s initial sentence under the advisory guidelines
was well below the statutory maximum of life (and well below the
statutory maximum of 40 years had the § 851 Notice not been filed),
and his new sentence of time served is also well below both the 30year statutory maximum that was deemed to apply and the 20-year
statutory maximum that would have applied had Oliea not been
deemed to have a prior felony drug offense. The purported error in
designating Oliea a career offender is simply not cognizable on
collateral review. His claim regarding the advisory guidelines must,
therefore, be dismissed as well.
As none of Oliea’s objections would change this conclusion,
the objections are overruled as moot. However, the Court notes
that Oliea’s argument that Illinois’ statute 720 ILCS 570/401 is
overbroad due to its inclusion of “positional isomers” in the
definition of cocaine is not clearly meritless. This same argument is
currently pending before the Seventh Circuit. See United States v.
Atwood, No. 18-2113 (7th Cir.). However, as Oliea has not shown
he meets the requirements to proceed under § 2255(e), he is not
entitled to a decision on the underlying merits of his claim.
Page 17 of 18
IV. CONCLUSION
For the reasons stated, Magistrate Judge Schanzle-Haskins’
Report and Recommendation (Doc. [8]) is ADOPTED as modified
above. Petitioner’s Objections (Doc. [11]) are OVERRULED.
Accordingly, Petitioner’s Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. [1]) is DISMISSED with
prejudice pursuant to 28 U.S.C. § 2255(e). This Case is CLOSED.
ENTERED: August 5, 2019
FOR THE COURT:
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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