United States of America v. Reilly

Filing 15

OPINION and Order Signed by the Honorable Sara L. Ellis on December 12, 2017. Mailed notice (ph, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,

v.
MICHAEL REILLY,

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)
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No. 16 C 6496
Judge Sara L. Ellis

OPINION AND ORDER
Michael Reilly was convicted of bank robbery, 18 U.S.C. § 2113(a), and sentenced to
151 months in prison, based, in part, on the sentencing court’s determination that he was a career
offender under the United States Sentencing Guidelines. Reilly moves pursuant to 28 U.S.C.
§ 2255 for relief from his original sentence arguing that the Sentencing Guidelines definition of a
career offender is unconstitutionally vague. The Supreme Court’s decision in Beckles v. United
States, --- U.S. ----, 137 S. Ct. 886, 137 S. Ct. 886 (2017), held that the Sentencing Guidelines
are not subject to vagueness challenges. The Court therefore dismisses Reilly’s motion.
LEGAL STANDARD
28 U.S.C. § 2255(a) provides that “[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United States, or that the
Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). If
the Court finds that the convicted defendant is entitled to relief then “the court shall cause notice
thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine

the issues, and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C.
§ 2211(b). However, if the Court finds that “the files and records of the case conclusively show
that the prisoner is entitled to no relief,” then the Court is permitted to dismiss the motion. Id.;
see also Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010); Cooper v. United States,
378 F.3d 638, 641–42 (7th Cir. 2004); Rule 4 of the Rules Governing Section 2255 Proceedings
for the United States District Courts.
ANALYSIS
Reilly pleaded guilty to bank robbery and was sentenced on December 11, 2008 to 151
months imprisonment, with the sentencing court finding that Reilly was a career offender under
the Sentencing Guidelines, U.S.S.G. §4B1.1. In 2008,1 a judge could sentence a defendant as a
“a career offender if (1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of conviction [was] a felony
either a crime of violence or a controlled substance offense; and (3) the defendant [had] at least
two prior felony convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). The term crime of violence in § 4B1.1(a)(3) meant any federal or state
felony that “(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of physical injury
to another.” Id. § 4B1.2(a) (emphasis added). The emphasized clause is known as the residual
clause. Beckles, 137 S. Ct. at 890. Seven years after Reilly’s sentence, the United States
Supreme Court declared in Johnson v. United States, --- U.S. ----, 135 S. Ct. 2551, 192 L. Ed. 2d
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The Court reviews the guidelines in effect the year in which Reilly was sentenced. See Beckles, 137 S.
Ct. at 890 (reviewing version of Sentencing Guidelines that “were in effect when petitioner was
sentenced”).

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569 (2015), that an identically worded residual clause in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague. Johnson, 135 S. Ct. at 2557.
Reilly filed his § 2255 motion, arguing that Johnson applies to the Sentencing
Guidelines’ career offender residual clause. The Court stayed Reilly’s case to await the outcome
in Beckles. After the Supreme Court decided Beckles, the Court set a briefing schedule. The
Government filed a response, but Reilly did not file a reply. Beckles makes it clear that Johnson
does not apply to the Sentencing Guidelines’ career offender residual clause because “the
advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process
Clause.” Beckles, 137 S. Ct. at 895. “[Section] 4B1.2(a)’s residual clause is not void for
vagueness.” Id. Because the Sentencing Guidelines and § 4B1.2(a) are not unconstitutionally
vague and Johnson does not apply, Reilly’s challenge to his sentencing fails. See Martin v.
United States, No. 115CV00692LJMDML, 2017 WL 4099306, at *2 (S.D. Ind. Sept. 15, 2017)
(“In other words, the holding in Johnson does not apply to cases, like the Petitioners, that
challenge a guideline calculation.”); United States v. Lewis, No. 3:11-CR-86 JD, 2017 WL
3315079, at *1 (N.D. Ind. July 31, 2017) (“Therefore, even though the Sentencing Guidelines
and the Armed Career Criminal Act share a similar ‘residual clause,’ Johnson has no effect on
the Sentencing Guidelines.”); Smith v. United States., No. 11-CR-104-WMC, 2017 WL 2601902,
at *2 (W.D. Wis. June 15, 2017) (“Beckles eliminates petitioner’s argument that he is entitled to
relief under Johnson. Accordingly, his motion will be denied.” (internal footnote omitted));
Blair v. United States, No. 16-CV-790-PP, 2017 WL 2559983, at *2 (E.D. Wis. June 13, 2017)
(“Under the Beckles decision, then, Judge Randa did not impose an unconstitutional sentence
when he sentenced the petitioner under the career offender guideline. For this reason, the court
must deny the petition, and dismiss this case.”).

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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court must issue or
deny a certificate of appealability when it enters a final order adverse to a petitioner. A habeas
petitioner is entitled to a certificate of appealability only if he can make a substantial showing of
the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (citing 28 U.S.C. § 2253(c)(2)). To make a substantial showing,
the petitioner must 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.’” Slack v. McDaniel, 529 U.S.
473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)). The requirement of a certificate of
appealability is a threshold issue and a determination of whether one should issue neither
requires nor permits full consideration of the factual and legal merits of the claims. “The
question is the debatability of the underlying constitutional claim, not the resolution of that
debate.” Miller-El, 537 U.S. at 342.
For the reasons stated above, the Court finds that there is no showing of a substantial
constitutional question for appeal because reasonable jurists would not find this Court’s ruling
debatable. See Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011). Accordingly, the Court
declines to issue a certificate of appealability.

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CONCLUSION
For the foregoing reasons, the Court the Court denies Reilly’s motion, terminating his
case, and denies a certificate of appealability.

Dated: December 12, 2017

______________________
SARA L. ELLIS
United States District Judge

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