United States of America v. Jones

Filing 22

MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 11/29/2016:Mailed notice(clw, )

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

UNITED STATES OF AMERICA,
Plaintiff,
v.
TERRY JONES,
Defendant.

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Case No: 16 C 6396
(Criminal Case No. 07 CR 415)

MEMORANDUM OPINION AND ORDER
Terry Jones ("Jones") is among the myriad federal prisoners across the country who are
seeking to invalidate their sentences as Armed Career Criminals 1 by filing motions under 28
U.S.C. 2255 2 that seek to call to their aid the retroactively applied decision in Johnson v. United
States, 135 S. Ct. 2551 (2015). Although Jones' conviction and sentencing took place many
years ago, his Section 2255 effort is within the one-year limitations period prescribed by Section
2255(f)(3) because that period runs from:
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.
1

All citations to the Armed Career Criminal Act (the "Act") will take the simple form
"Section --," omitting the prefatory "18 U.S.C. §."
2

All citations to that and other sections of Title 28 will also simply take the form
"Section --." That twofold use of the "Section" abbreviation should create no confusion, for
references to the Act are in the 900 series of Title 18, while references to the Title 28 provisions
are in its 2200 series.

Jones is fortunate to have the able assistance of William Theis, a highly qualified and
experienced member of the panel of this District Court's excellent Federal Defender Program, 3
and his Federal Defender Program colleague W. Todd Watson to advance Jones' position.
To take Jones out of the Armed Career Criminal category so that he is no longer subject
to the mandatory minimum 15-year sentence prescribed by the Act, his counsel has the task of
taking one of the three required predicate offenses for that purpose -- in this instance, his Illinois
conviction on an armed robbery charge -- out of the running for federal purposes. In that respect
Section 924(e)(2)(B) defines what constitutes a "violent felony" that can qualify for purposes of
Section 924(e)(1)'s sentencing enhancement provision. That definition reads in relevant part:
As used in this subsection -*
(B)

*

*

the term "violent felony" means any crime punishable by imprisonment
for a term exceeding one year . . . that -(i)

has as an element the use, attempted use, or threatened use of
physical force against the person of another . . . . .

And on that score the Illinois robbery statute (720 ILCS 5/18-1(a)) reads:

3

Attorney Theis very recently played a similar role in successfully advancing the same
type of Section 2255 effort by another federal prisoner, Vito Barbosa, in a case that was also
assigned to this Court's calendar (Civil Case No. 16 C 9289, with Barbosa's old Criminal Case
No. being 04 CR 609), to eliminate a mandatory 15-year sentence as an Armed Career Criminal.
That effort invoked the Supreme Court's opinion in Mathis v. United States, 136 S. Ct. 2243
(2016) to take the Act out of play. As a result of that effort, this Court vacated Barbosa's original
sentence and replaced it with a mandatory 10 year maximum sentence. With Barbosa already
having served more than that time in prison, this Court ordered his immediate release by a
November 17 judgment order, and the Bureau of Prisons implemented the release order that
same day.

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A person commits robbery when he or she takes property . . . from the person or
presence of another by the use of force or by threatening the imminent use of
force.
Just a bit over a quarter century ago our Court of Appeals dealt with the then-existing
identical definition of robbery under Illinois law (then codified at Ill. Rev. Stat. ch. 38, § 18-1(a))
in United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990), holding that Illinois robbery is
indeed a crime of violence for purposes of Section 924(e)(2)(B). So Jones' counsel have
forthrightly acknowledged in their November 21 Reply on his behalf that they must establish that
Johnson has overturned that result.
But in that regard counsel face the analytical problem that the Supreme Court's Johnson
holding focused on the "residual clause" of the Act's Section 924(e)(2)(B)(ii) as
unconstitutionally vague. But in doing so Johnson, 135 S. Ct. at 2563 concluded by stating
expressly (emphasis added):
Today's decision does not call into question application of the Act to the four
enumerated offenses, or the remainder of the Act's definition of a violent felony.
So Jones and his counsel must confront the extraordinarily difficult problem of extending
the Johnson analysis and its holding into an area that the Supreme Court has itself
unambiguously declined to enter. What Jones' current Reply attempts in that respect is again
forthright: It points to decisions from five other circuits -- United States v. Castro-Vasquez, 802
F.3d 28, 37-38 (1st Cir. 2015), United States v. Jones, 2016 WL 3923838, at *5 (2d Cir. July 21,
2016), 4 United States v. Gardner, 823 F.3d 793, 801-04 (4th Cir. 2016), United States v. Bell,
2016 WL 6311084, at *1-3 (Oct. 28, 2016) and United States v. Parnell, 818 F.3d 974, 979-81
4

That Second Circuit opinion, originally published at 830 F.3d 142, has been
withdrawn -- the Westlaw citation provided by attorney Theis simply reflects the withdrawal,
with another citation, 2016 WL 5791619, setting out the order vacating the original decision.
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(9th Cir. 2016) -- as assertedly calling for our Court of Appeals, and hence this District Court, to
expand the area occupied by Johnson's invalidation of the "residual clause" of the Act well
beyond the borders of that decision, reaching into the area that the Johnson decision deliberately
left untouched.
But all those decisions from other circuits are entirely beside the mark. Each of them
focuses on the modest degree of physical contact that various jurisdictions have found sufficient
to support a robbery conviction that calls for a finding of "violent crime" -- what we are taught in
law school was the Latin concept of "molliter manus imposuit" (the gentle laying on of hands)
that was employed to qualify a use of force as reasonable, for example when it was necessary to
keep the peace (see Black's Law Dictionary at 1026 (8th ed. 2004)).
But by total contrast, what is at issue here is the direct match between the elements of the
Illinois statute that was the basis of Jones' challenged conviction -- an armed robbery, 720 ILCS
5/18-1(a) -- and the elements of the provision of the Act (Section 924(e)(2)(B)(i)) that has been
left unimpaired by Johnson. Once again, here is the relevant part of the Illinois robbery statute
that sets out the key elements of Illinois robbery (with emphasis added):
A person commits robbery when he or she takes property . . . from the person or
presence of another by the use of force or by threating the imminent use of force.
And here once more is the matching, relevant and untouched elements provision of the federal
statute (also with emphasis added):
The term "violent felony" means any crime punishable by imprisonment for a
term exceeding one year . . . that -(i) has as an element the use, attempted use or threatened use of physical
force against the person of another.

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That current version of the Illinois robbery statute passed muster for Act purposes a bit
over a quarter century ago when the then-existing antecedent was 38 Ill. Comp. Stat. Ann. § 18-1
read (emphasis again added):
A person commits robbery when he takes property from the person or presence of
another by the use of force or by threatening the imminent use of force.
What Dickerson, 901 F.2d at 584 then said, and what continues to control today, is that the
Illinois statute "in its own terms includes the elements of either 'use of force or . . . threatening
the imminent use of force'." Although Jones' able counsel has sought to emulate the alchemists
of the Middle Ages by transmuting what for present purposes is the base metal of the other cases
on which Jones seeks to rely into the golden metal of a Johnson-driven result, that simply won't
work.
Indeed, the very distinction made here was the subject of an opinion handed down by our
Court of Appeals just four weeks ago in United States v. Armour, 2016 WL 6440383 at *4 (7th
Cir. Nov. 1, 2016). Because the analysis there impacts so directly on what is at issue here, this
Court would not presume to paraphrase (let alone try to improve on) what the court said there -instead it quotes at length from Armour (with numerous citations and internal quotation marks
omitted):
Armour bases his challenge on the fact that a person can commit robbery by
"intimidation," as distinct from "by force or violence," and he argues that robbery
by "intimidation" does not qualify as a crime of violence. We disagree. In
applying the categorical approach to the elements of § 2113(a) and (d), we must
presume the conviction rested on the least serious acts that could satisfy the
statute. Intimidation exists "when a bank robber's words and actions would cause
an ordinary person to feel threatened, by giving rise to a reasonable fear that
resistance or defiance will be met with force." "A defendant properly convicted
of bank robbery is guilty per se of a crime of violence, because violence in the
broad sense that includes a merely threatened use of force is an element of every
bank robbery." The intimidation element is satisfied "if an ordinary person would
reasonably feel threatened under the circumstances." . . . The defendant "does not
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have to make an explicit threat or even announce that he is there to rob the bank.
Credibly implying that a refusal to comply with a demand for money will be met
with more forceful measures is enough."
There is nothing special about armed bank robbery to separate it from other armed
robberies in that respect. With the regrettable escalation of violent gun crimes in today's society,
any ordinary person would reasonably feel threatened by the potential use of force implicit in an
armed robbery, whether what is sought by the armed criminal are bank funds or property
belonging to the victim.
In sum, Jones' Section 2255 motion must be and is denied, and this action is dismissed.
And as called for by Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts, this Court has considered the issuance or denial of a certificate of
appealability, and it denies such a certificate. As Rule 11(a) provides, Jones may not appeal the
denial but is free to seek a certificate from our Court of Appeals under Fed. R. App. P. 22, for
that court of course has the final word as to whether Johnson should be extended in the manner
sought for by Jones' counsel.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: November 29, 2016

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