United States of America v. Dixon

Filing 17

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/17/2017. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

United States of America,

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Plaintiff,

v.
Jerome Dixon,
Defendant.

No. 15 C 10906

Memorandum Opinion and Order
Before

me

is

defendant

Jerome

Dixon’s

second

motion

to

amend, correct, or vacate his sentence pursuant to 28 U.S.C.
§ 2255. The Seventh Circuit authorized the motion based on its
preliminary conclusion that Dixon had made a prima facie showing
that

he

may

be

entitled

to

relief

States, 135 S. Ct. 2551 (2015).

under

Johnson

v.

United

For the following reasons, the

motion is denied.
On December 22, 2011, Dixon pled guilty to possessing a
firearm after having previously been convicted of a felony in
violation

of

18

U.S.C.

§ 922(g).

On

May

14,

2012,

he

was

sentenced to 180 months’ imprisonment.

Under the terms of his

plea

qualified

agreement,

Dixon

agreed

that

he

as

an

Armed

Career Criminal under § 924(e) based on two previous convictions
for serious drug offenses and a third conviction for aggravated

battery

of

a

police

officer

in

violation

of

720

ILCS

5/12-

14,

2013,

4(B)(6).
Dixon

filed

his

first

§ 2255

motion

on

May

asserting 1) that he should not have been sentenced as an armed
career criminal because under Buchmeier v. United States, 581
F.3d 561 (7th Cir. 2009), his previous convictions were not
properly considered predicate offenses, and 2) that his attorney
was ineffective. See Case No. 13-cv-3591, 07/28/14 Memorandum
Opinion and Order (DN 18). I denied the motion without reaching
the merits of the Buchmeier claim because I concluded that by
his plea agreement, Dixon waived the right to challenge his
sentence in a collateral attack. I also concluded that although
Dixon’s ineffective assistance of counsel claim was outside the
scope

of

his

waiver,

it

failed

on

the

merits

because

he

identified neither facts nor law to support it. Id. at 8.
It

is

unclear

whether

Dixon’s

present

§ 2255

motion

reasserts his Buchmeier claim. On the one hand, he “incorporates
in full the documents filed in the Seventh Circuit which state
the case history and the nature and substance of the § 2255
claim.” Mot. at 1 (DN 5). But those documents point in different
directions. In his pro se motion for leave to file a second or
successive § 2255 motion, Dixon answered “no” to the question
“[d]id you present any of the claims in this application in any
previous petition, application, or motion for relief under 28
2

U.S.C. § 2254 or § 2255?” DN 1 at 3.1 On the other hand, the
memorandum supporting his motion for leave argues that relief is
appropriate under Buchmeier as well as under Johnson. Id. at 7,
8, 10. Accordingly, I assume (as the government does) that the
present motion articulates both claims.
Nevertheless, there appears to be no dispute that Dixon may
not

relitigate

his

Buchmeier

claim,

a

point

Dixon

tacitly

concedes in his counseled reply, which makes no reference at all
to

Buchmeier.

Instead,

Dixon

responds

to

the

government’s

argument that his Buchmeier claim is time-barred by insisting
that his Johnson claim is timely—a point the government does not
dispute. I thus move on to the merits of Dixon’s Johnson claim.
As

the

Seventh

Circuit

explained

in

Stanley

v.

United

States, 827 F.3d 562, 564 (7th Cir. 2016), the “sole holding of
Johnson is that the residual clause [of the ACCA] is invalid.”
Specifically, the court stated,
Johnson “does not have anything to do with the proper
classification
of
drug
offenses
or
the
operation
of
§ 924(e)(2)(B)(i),
known
as
the
elements
clause,
which
classifies as a violent felony any crime punishable by a year or
more in prison that ‘has as an element the use, attempted use,
or threatened use of physical force against the person of
another.’”
Id.

The court went on to hold that Stanley’s conviction for

aggravated battery of a peace officer—the very offense Dixon

1

Page numbers refer to the numbers automatically generated by
the CM/ECF system.
3

claims

should

sentence—was
“district

not,

under

“outside

court

Johnson,

the

counted

scope

this

have
of

triggered

Johnson”

conviction

his

ACCA

because

under

the

the

elements

clause.” Id. at 565.
So, too, in this case, each of Dixon’s convictions was
“counted”

under

the

elements

clause,

and

Dixon

makes

no

assertion to the contrary. Instead, he argues that aggravated
battery

of

violence,

a

peace

and

that

officer
proper

is

not

categorically

application

of

a

the

crime

of

“modified

categorical approach” shows that he was not, in fact, convicted
of a “violent felony.” But Stanley forecloses this argument.
Indeed, the court explained that “Hill v. Werlinger, 695 F.3d
644, 649–50 (7th Cir. 2012), concludes that the Illinois offense
of aggravated battery of a peace officer is a violent felony
because the use of force is an element of the offense. Johnson
has nothing to say about that subject.” Stanley, 827 F.3d at
565.
Stanley

is

on

all-fours

with,

and

controls,

this

case.

Dixon insists that the Seventh Circuit’s later decision in Yates
v. United States, 842 F.3d 1051 (7th Cir. 2016), somehow compels
“a

comprehensive

methodology...to

assess

predicate

offenses

under the ACCA” post-Johnson, Reply at 11-12, but Yates does
nothing of the sort. Indeed, Yates reiterated that Johnson “does

4

not affect the elements clause of § 924(e).” Id. at 1052 (citing
Stanley).
Finally, Dixon suggests that Stanley is at odds with the
Supreme Court’s disposition of the defendant’s claim in Welch v.
United States, 136 S. Ct. 1257 (2016). Whatever the merits of
that argument, however, I am bound to follow controlling Seventh
Circuit law.
For the foregoing reasons, Dixon’s motion for relief under
§ 2255 is denied. I further decline to issue a certificate of
appealability.

ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: February 17, 2017

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