Jones v. United States of Amercia

Filing 3

OPINION BY SUE E. MYERSCOUGH, U.S. District Judge: Because it plainly appears from the Motion and the record of the prior proceedings that Petitioner is not entitled to relief, the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1 ) is SUMMARILY DISMISSED. The Clerk is DIRECTED to notify Petitioner of the dismissal. The Court also denies a certificate of appealability. THIS CASE IS CLOSED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 10/25/2017. (MJC, ilcd)

E-FILED

Friday, 27 October, 2017 01:02:52 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CHRISTOPHER JONES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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17-cv-3037

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Petitioner Christopher Jones has filed a pro se Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255 (d/e 1). Under Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts, this Court must
promptly examine the motion. If it appears from the motion, any
attached exhibits, and the record of prior proceedings that
Petitioner is not entitled to relief, the Court must dismiss the
motion. See Rules Governing Section 2255 Proceedings, 4(b). A
preliminary review of Petitioner’s motion shows that the motion
must be dismissed because Petitioner is not entitled to relief.

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I. BACKGROUND
In May 2015, the grand jury returned a seven-count
Indictment against Petitioner. See United States v. Jones, Central
District of Illinois, Springfield Division, Case No. 15-30023 (Crim.
Case), Indictment (d/e 1). Petitioner ultimately pleaded guilty to
two counts pursuant to a plea agreement under Federal Rule of
Criminal Procedure 11(c)(1)(C). Crim. Case, Plea Agreement (d/e
18).
Petitioner pleaded guilty to Count 2, possession with intent to
distribute heroin, and Count 3, carrying a firearm in furtherance of
a drug trafficking crime. Crim. Case, June 1, 2016 Minute Entry;
June 21, 2016 Text Order. As part of the plea agreement, the
parties agreed the appropriate sentence was 90 months’
imprisonment on Count 2; 60 months’ imprisonment on Count 3 to
run consecutively to Count 2; a six-year term of imprisonment on
Count 2 and a three-year term on Count 3, to run concurrently; no
fine or restitution; and a $200 special assessment. Crim. Case,
Plea Agreement ¶ 19 (d/e 18). The Government agreed to dismiss
Counts 1, 4, 5, 6, and 7. Id. ¶ 7. Petitioner waived his right to
appeal and collaterally attack his sentence with the exception of
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claims of involuntariness or ineffective assistance of counsel. Id.
¶¶ 22-24. In September 2016, the Court accepted the plea
agreement and sentenced Petitioner in accordance with the parties’
agreement.
On February 14, 2017, Petitioner filed his § 2255 Motion.
II. ANALYSIS
In his Motion, Petitioner identifies two grounds for relief—
ineffective assistance of counsel and unconstitutional
enhancement. The basis for both grounds is Petitioner’s contention
that his 60-month sentence for carrying a firearm in furtherance of
a drug trafficking crime is unconstitutional in light of Johnson v.
United States, 135 S. Ct. 2551 (2015).1 The Court finds, however,
that the motion and record clearly show that Johnson is
inapplicable because Petitioner was sentenced under 18 U.S.C.
§ 924(c) for carrying a firearm in furtherance of a drug trafficking
crime and not in furtherance of a crime of violence.
A brief explanation of the Armed Career Criminal Act and the
Johnson case are necessary to put Petitioner’s claim in context.

 The Court assumes, for purposes of this motion, that the plea agreement does
not bar Petitioner’s claim that counsel was ineffective for failing to raise this
argument.
1

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The Armed Career Criminal Act enhances the penalties for gun
offenses under 18 U.S.C. § 922(g) when the defendant has three
prior convictions for a violent felony, a serious drug offense, or both.
18 U.S.C. § 924(e)(1). The residual clause of the Armed Career
Criminal Act defines a “violent felony” to include a felony offense
that “otherwise involves conduct that presents a serious potential
risk of physical injury to another [.]” 18 U.S.C. § 924(e)(2)(B)(ii). In
Johnson v. United States, 135 S. Ct. 2551, the United States
Supreme Court held that the residual clause of the Armed Career
Criminal Act was impermissibly vague and, therefore, “imposing an
increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process.”
Petitioner seeks to apply the reasoning of Johnson to his
conviction under 18 U.S.C. § 924(c). Under § 924(c), an individual
convicted of using or carrying a firearm during and in relation to
any crime of violence or drug trafficking crime, or possessing a
firearm in furtherance of such a crime, receives a five-year
mandatory minimum sentence in addition to the punishment for
the underlying crime. 18 U.S.C. § 924(c)(1)(A)(i). A “crime of
violence” is defined at § 924(c)(3)(B) to include a felony “that by its
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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)(B).2 The Seventh
Circuit has extended the holding of Johnson to § 924(c)(3)(B) and
found § 924(c)(3)(B) unconstitutionally vague. United States v.
Jackson, 865 F.3d 946, 954 (7th Cir. 2017) (but also noting
disagreement within the Circuits).
Nonetheless, Petitioner is not entitled to relief. Petitioner was
convicted of carrying of a firearm in furtherance of a drug trafficking
crime, not a crime of violence. Therefore, the definition of crime of
violence in § 924(c)(3)(B) was not implicated when Petitioner was
sentenced. Consequently, Petitioner is not entitled to relief.
III. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255
Proceedings For the United States District Courts, the Court
declines to issue a Certificate of Appealability. A certificate may
issue only if Petitioner has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner must

Section 924(c)(3) also defines a crime of violence to include any felony that
“has as an element the use, attempted use, or threatened use of physical force
against the person or property of another[.]” 18 U.S.C. § 924(c)(3)(A).
2

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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.” Peterson v. Douma,
751 F.3d 524, 528 (7th Cir. 2014) (quotations omitted). Because
the claims at issue do not satisfy this standard, the Court denies a
Certificate of Appealability.
IV. CONCLUSION
Because it plainly appears from the Motion and the record of
the prior proceedings that Petitioner is not entitled to relief, the
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (d/e 1) is SUMMARILY
DISMISSED. The Clerk is DIRECTED to notify Petitioner of the
dismissal. The Court also denies a certificate of appealability.
THIS CASE IS CLOSED.
ENTER: October 25, 2017
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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