United States of America v. Grzegorczyk

Filing 25

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 10/17/2018. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America

)
)
)
) No. 16 CV 8146
) (No. 12 CR 320)
)
)
)
)
)
)

v.

Zenon Grzegorczyk,
Defendant.

Memorandum Opinion and Order
Zenon Grzegorczyk was charged with three counts of using a
facility of interstate commerce with intent that a murder be
committed, in violation of 18 U.S.C. § 1958(a), and one count of
possessing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A). Pursuant to a written
agreement, petitioner pled guilty to one of the § 1958(a) counts
(Count

Three)

government

and

agreed

the

§ 924(c)

to

dismiss

count
the

(Count

remaining

Four),

and

charges

the

after

sentencing. In his plea, petitioner admitted that he “knowingly
possessed a firearm...in furtherance of a crime of violence” as
charged in Count Three. Petitioner expressly waived his right to
appeal his conviction, agreeing that he “may only appeal the
validity of this plea of guilty and the sentence imposed.” I
imposed a sentence of 151 months of confinement on the first

offense and a consecutive 60 months on the second. Petitioner
appealed his sentence and the Seventh Circuit affirmed. U.S. v.
Grzegorczyk,

800

F.

3d

402

(7th

Cir.

2015).

Before

me

is

petitioner’s 28 U.S.C. § 2255 motion to vacate his sentence. The
motion is denied for the reasons explained below.
Petitioner argues that his § 924(c)(1) conviction is invalid
because it depends on the “residual clause” of § 924(c)(3)(B),
which is constitutionally indistinguishable from the residual
clause the Supreme Court held unconstitutional in Johnson v. United
States, 135 S. Ct. 2551 (2015) (residual clause of sentencing
enhancements in the Armed Career Criminals Act void for vagueness).
Indeed, the Seventh Circuit so held in United States v. Cardena,
842 F.3d 959, 995–96 (7th Cir. 2016) (Johnson invalidates residual
clause

of

§ 924(c)(3)(B)).

Accordingly,

had

petitioner

been

convicted after a jury trial, he might have had a leg to stand on
under § 2255. But that relief is unavailable to him because he
pled guilty to a crime of violence, thereby waiving his Johnson
challenge.1 United States v. Wheeler, 857 F.3d 742, 744 (7th Cir.
2017) (defendant who pled guilty to attempted Hobbs Act robbery
and a § 924(c)(1) offense waived argument that indictment did not

Although I stayed briefing on the petition at the government’s
request pending the Supreme Court’s decision in Sessions v. Dimaya,
138 S. Ct. 1204 (2018), which held the identically worded residual
clause of 18 U.S.C. § 16(b) unconstitutionally vague, Dimaya does
not disturb the ground on which I conclude that petitioner is
ineligible for relief.
1

2

charge a “crime of violence,” regardless of the fact that Cardena
post-dated his guilty plea); Davila v. United States, 843 F.3d
729, 731-32 (7th Cir. 2016) (explaining that Brady v. United
States, 397 U.S. 742 (1970), and United States v. Broce, 488 U.S.
563 (1989), precluded defendant who pled guilty to Hobbs Act
conspiracy and a § 924 (c)(1) offense from relying on Johnson and
Cardena to upset his conviction). Citing the Seventh Circuit’s
unequivocal holdings of these cases—which it has reiterated in a
subsequent, non-precedential order, United States v. Starwalt, No
16-3505, 701 F. App’x 508 (7th Cir. Nov. 14, 2017)—several lower
courts have denied Johnson relief to defendants seeking to vacate
their

sentences

after

pleading

guilty

to

§ 924(c)(1)

charges

predicated on crimes of violence. Mediate v. United States, 2018
WL 1366689, at *6 (S.D. Ind. Mar. 16, 2018); United States v.
Pullia, Nos. 16 C 6450, 16 C 6455, 16 C 7631, 2017 WL 5171218, at
*5-*6 (N.D. Ill. Nov. 8, 2017); Pena v. United States, No. 16 C
2239, 2017 WL 2588074, at *4 (C.D. Ill. Jun. 14, 2017); Ward v.
United States, 3:16-cv-4640RLM, 2017 WL 784238, at *4 (N.D. Ind.
Mar. 1, 2017); but see United States v. Adams, 2018 WL 3141829, at
*2 (N.D. Ill. Jun. 27, 2018) (vacating sentences of defendants who
pled guilty to Hobbs Act conspiracy and § 924(c)(1) offenses under
Johnson and Cardena, but without examining Wheeler or Davila, which
the government did not raise).

3

Because Davila and Wheeler are dispositive of petitioner’s
motion, I need not address the remaining arguments the parties
raise.
ENTER ORDER:

Elaine E. Bucklo
United States District Judge

Dated: October 17, 2018

4