Vance v. USA

Filing 16

MEMORANDUM AND ORDER, The Court DENIES Vance's amended § 2255 petition (Doc. 4 ), DECLINES to issue a certificate or appealability and DIRECTS the Clerk of Court to enter judgment accordingly. In light of this ruling, the Court DENIES Vance's motion for bond (Doc. 5 ). Signed by Judge J. Phil Gilbert on 3/21/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRENCE R. VANCE,
Petitioner,
v.

Civil No. 15-cv-1150-JPG

UNITED STATES OF AMERICA,

Criminal No 09-cr-40070-JPG

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Terrence R. Vance’s amended motion to
vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 4). The Court of
Appeals for the Seventh Circuit authorized Vance to file this successive petition on September 29,
2015 (Case No. 00-cr-40070-JPG, Doc. 101). The Government has responded to Vance’s
amended § 2255 motion (Doc. 9), and Vance has replied to that response (Doc. 12). Following
the Supreme Court’s decision in Beckles v. United States, No. 15-8544, 2017 WL 855781 (U.S.
Mar. 6, 2017), the Government filed a supplemental brief discussing the impact of that case (Doc.
15). The Court also considers Vance’s motion for bond pending resolution of his amended
§ 2255 motion (Doc. 5), to which the Government has responded (Doc. 8), and Vance has replied
(Doc 13).
In its preliminary review of Vance’s amended § 2255 motion, the Court set forth the
history of this case:
On March 16, 2010, the petitioner pled guilty to two counts of possession
with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). At the
petitioner’s sentencing on September 17, 2010, the Court found that the petitioner
was a career offender based on one prior conviction for a crime of violence
(stealing from a person) and one prior conviction for a drug crime (distribution of a
controlled substance). See United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 4B1.1 (2009). The Court sentenced the petitioner to serve 262

months in prison. The petitioner appealed, and the Court of Appeals affirmed the
Court’s decision, United States v. Vance, 659 F.3d 613 (7th Cir. 2011), but the
Supreme Court vacated the judgment and remanded for resentencing in light of
Dorsey v. United States, 132 S. Ct. 2321 (2012) (finding the Fair Sentencing Act of
2010 applied to a defendant sentenced after enactment even if the offense of
conviction occurred before enactment). Vance v. United States, 133 S. Ct. 65
(2012).
On remand, the Court held a new sentencing proceeding on November 20,
2012. The Court again found the petitioner to be a career offender based on the
same prior convictions and sentenced him to serve 200 months in prison. The
petitioner again appealed, and on August 20, 2013, the Court of Appeals granted
counsel’s motion to withdraw and dismissed the appeal. United States v. Vance,
527 Fed. App’x 568 (7th Cir. 2013). The petitioner did not seek a writ of
certiorari from the Supreme Court.
Mem. & Ord. at 1-2 (Doc. 7).
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[r]elief
under § 2255 is available ‘only in extraordinary situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has occurred which results in a complete
miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to deny a § 2255
motion without an evidentiary hearing if “the motion and the files and records of the case
conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see
Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
In his amended § 2255 motion, Vance argues that his due process rights were violated
when the Court applied the residual clause of the career offender (“CO”) guideline to find his prior
conviction for stealing from a person was a “crime of violence” supporting career offender status,
and thus a higher guideline sentencing range. The CO guideline states, in pertinent part, that a
prior offense is a crime of violence if it “is burglary of a dwelling, arson, or extortion, involves use
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of explosives, or otherwise involves conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2) (emphasis added to residual clause).
Vance’s argument relies on Johnson v. United States, 135 S. Ct. 2551 (2015), which held
that the use of the identical residual clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e),
to increase the statutory sentencing range is unconstitutional. Id. at 2563. This is because the
vagueness of the clause denies fair notice to a defendant of his potential punishment and invites
arbitrary enforcement by judges. Id. at 2557. In United States v. Hurlburt, 835 F.3d 715 (7th
Cir. 2016) (en banc), the Seventh Circuit Court of Appeals applied the same rationale to hold that
use of the CO residual clause to support CO status, thereby increasing the guideline sentencing
range, is also unconstitutional. Id. at 725.
Hurlburt, however, was abrogated by Beckles, which held that sentencing guidelines are
not amendable to vagueness challenges. Beckles, 2017 WL 855781, at *6. This is because,
unlike the statute at issue in Johnson, advisory guidelines “do not fix the permissible range of
sentences” but “merely guide the exercise of a court’s discretion in choosing an appropriate
sentence within the statutory range.” Id.
Beckles forecloses Vance’s argument that he is entitled to § 2255 relief. There was
nothing unconstitutional about the Court’s using the CO residual clause to find Vance’s prior
conviction for stealing from a person was a crime of violence and increasing his guideline
sentencing range accordingly. This is because the Court’s guideline range findings did not fix the
sentencing range but merely guided the Court’s discretion within the fixed statutory sentencing
range.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the
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Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of
appealability of this final order adverse to the petitioner. A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching,
246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner must “demonstrate
that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have
been resolved in a different manner or that the issue presented was adequate to deserve
encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Buck v. Davis, 137 S. Ct.
759, 773 (2017); Miller-El v. Cockrell, 537 U. S. 322, 327 (2003). The Court finds that Vance has
not made such a showing and, accordingly, declines to issue a certificate of appealability.
For this reason, the Court DENIES Vance’s amended § 2255 petition (Doc. 4),
DECLINES to issue a certificate or appealability and DIRECTS the Clerk of Court to enter
judgment accordingly. In light of this ruling, the Court DENIES Vance’s motion for bond (Doc.
5).
IT IS SO ORDERED.
DATED: March 21, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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