Banks v. USA
ORDER: For the reasons set forth in the attached Memorandum and Order, the Court finds that Beckles has closed the door on Banks's argument that he was improperly sentenced as a career offender under the guidelines. The petition is hereb y DISMISSED. Judgment shall enter in favor of the Respondent United States and against Petitioner Banks. Further, because Banks has failed to make a substantial showing of the denial of a constitutional right, the Court DECLINES to issue a certificate of appealability. Signed by Chief Judge Michael J. Reagan on 10/17/2017. (rah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EDWARD A. BANKS,
UNITED STATES OF AMERICA,
Case No. 16-cv-00693-MJR
ORDER ON JOHNSON-BASED PETITION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER 28 U.S.C. § 2255
REAGAN, Chief Judge:
In Case No. 13-CR-30202-MJR (the “underlying case”), Edward Banks pleaded
guilty to a superseding indictment that charged him with possession with intent to
distribute a controlled substance, cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). The plea was entered pursuant to a written stipulation of facts but without a
written plea agreement (13-CR-30202, Docs. 37, 38).
On October 17, 2014, the
undersigned sentenced Banks to 130 months in prison (a sentence below the advisory
sentencing guidelines range of 151-188 months), plus a fine, a special assessment, and a
term of supervised release.
On June 24, 2016, Banks filed in this Court a pro se petition to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. Opened as the above-captioned civil
case, the petition specifically referenced Johnson v. United States, — U.S. —, 135 S. Ct.
2551 (2015) and raised a Johnson-like claim. (Doc. 1, pp. 4-5). Before Johnson was
decided, the “residual clause” of the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B)(ii), swept convictions that “otherwise involve[d] conduct that presents
serious potential risk of physical injury to another” into the ACCA’s definition of a
“violent felony.” Under the ACCA, if a defendant violated 18 U.S.C. § 922(g) and had
three or more previous convictions for a “violent felony,” then the defendant’s sentence
for the 922(g) violation was significantly increased.1 However, in Johnson, the United
States Supreme Court held that ACCA’s residual clause was unconstitutionally vague,
and, therefore, enhancing a defendant’s sentence under the ACCA’s residual clause
violated due process.2 Johnson, 135 S. Ct. at 2563.
On threshold review under Rule 4 of the Rules Governing Section 2255
Proceedings, the undersigned did not summarily dismiss Banks’s petition. Banks was
sentenced under § 4B1.1 of the U.S. Sentencing Guidelines—commonly referred to as
the “career offender enhancement.” (See 13-CR-30202, Doc. 5, pp. 4-5). Section 4B1.1
classifies a defendant like Banks, whose offense of conviction is a controlled substance
offense, as a career offender if the defendant has at least two prior felony convictions for
either a crime of violence or a controlled substance offense. The definition of “crime of
violence” in § 4B1.2 includes language that is substantially similar to the “residual
clause” held to be unconstitutionally vague in Johnson. When Banks filed his § 2255
In Johnson, the defendant’s sentence for felony possession of a firearm
would have ordinarily been limited to a maximum of ten years. However, once
enhanced by ACCA, the sentence was increased to a minimum of fifteen years
and a maximum of life.
Johnson applies retroactively to cases on collateral review. See Welch v.
United States, — U.S. —, 136 S.Ct. 1257 (2016).
petition, it was unclear whether the holding of Johnson reached these residual clauselike provisions in the sentencing guidelines.
Pursuant to Administrative Order 176, the Court appointed the Federal Public
Defender’s Officer for the Southern District of Illinois to assist Banks in presenting any
valid Johnson-based argument. Assistant Federal Public Defender Daniel G. Cronin
entered his appearance on Banks’s behalf, and filed a brief and supporting documents
addressing the merits of Banks’s petition on August 27, 2016 (Docs. 4, 5).
Government responded on October 11, 2016 (Doc. 11) and filed a notice of supplemental
authority on May 12, 2017 (Doc. 13), following the Supreme Court’s decision in Beckles
v. United States, 137 S. Ct. 886 (2017). For the reasons stated below, the Court denies
Timeliness of Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a oneyear period of limitations for prisoners to file petitions seeking to modify or vacate their
sentences under 28 U.S.C. § 2255. The period typically runs from the date on which the
judgment of conviction became final. 28 U.S.C. § 2255(f); Clay v. United States, 537
U.S. 522, 524 (2003). However, the one-year limitation period may be triggered by the
latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered though the exercise of due diligence.
28 U.S.C. § 2255(f).3Banks filed his petition on June 24, 2016, and Johnson was
decided on June 26, 2015. Therefore, the petition was timely-filed as to any Johnsonbased claim.
Additionally, Banks pleaded guilty without a plea agreement and,
therefore, has not waived any appellate or collateral review rights. (Doc. 5, p. 3).
Analysis begins with the proposition that relief under § 2255 is limited. It 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.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir.
2013); Accord United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014). Banks argues
that the two predicate offenses, robbery (01-CF-1086) and aggravated robbery (03-CF755), that increased his offense level under § 4B1.1 are not properly qualified as “crimes
of violence” under the “elements clause” in U.S.S.G. § 4B1.2(a)(1).
maintains that his offenses fall under the residual clause in § 4B1.2(a)(2). The residual
clause in the guidelines is worded identically to the unconstitutionally vague residual
clause in the ACCA. Therefore, Banks posits that the holding in Johnson should extend
The statute does not provide for extensions of time. However, the
limitation period is procedural, rather than jurisdictional, and can be equitably
tolled. Boulb, 818 F.3d at 339, citing Holland v. Florida, 560 U.S. 631, 645, 649
to the wording of § 4B1.2(a)(2) and that he must be resentenced “without career
offender enhancements.” (Doc. 1, p. 11).
In his brief, filed before the Supreme Court’s decision in Beckles, the appointed
Federal Public Defender suggests that there is no non-frivolous basis for the relief
sought in the Banks’s § 2255 petition. (Doc. 4, p. 1). He explains that Banks continues to
qualify as a career offender after Johnson because Banks not only has the two predicate
offenses used in the PSR to enhance his sentence (robbery and aggravated robbery) but
also has a second aggravated robbery conviction (in Case No. 03-CF-779). (Doc. 4, p. 1).
Cronin points out that both robbery and aggravated robbery qualify as crimes of
violence under the elements clause of § 4B1.2(a)(1), not under the language similar to §
4B1.2(a)(2). See United States v. Chagoya-Morales, 859 F.3d 411, 421-22 (7th Cir. 2017),
citing United States v. Bedell, 981 F.2d 915, 916 (7th Cir. 1992) (considering the Illinois
robbery statute) and People v. Gray, 806 N.E.2d 753, 757 (2004) (considering the
Illinois aggravated robbery statute).
The Court need not delve into whether robbery and aggravated robbery qualify
as crimes of violence under the elements clause or the residual clause of U.S.S.G. §
4B1.2. Johnson and its progeny related to the vagueness of residual clauses in criminal
statutes. Banks, however, was not sentenced under the ACCA or any other statute. He
was sentenced under § 4B1.1 of the sentencing guidelines. Johnson did not address the
constitutionality of residual clauses found in various provisions of the guidelines, like
the career offender provision found in § 4B1.1.
After Banks filed his petition, the Supreme Court held that the federal sentencing
guidelines are not subject to due process vagueness challenges, Beckles v. United
States, — U.S. —, 137 S. Ct. 886 (March 6, 2017), because, unlike the ACCA, the
guidelines are advisory and “do not fix the permissible range of sentences.” Id. at 892.
Therefore, Beckles put an end to Banks’s argument, even if he were correct in his
assertion that his convictions fell under the residual clause-like language of the
guidelines, that his Illinois robbery and aggravated robbery convictions were
improperly counted as crimes of violence.
The Court finds that Beckles has closed the door on Banks’s argument that he
was improperly sentenced as a career offender under the guidelines. The petition is
hereby DISMISSED. Judgment shall enter in favor of the Respondent United States
and against Petitioner Banks.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2255 Proceedings requires a district
court entering a final order adverse to a petitioner to issue or deny a certificate of
appealability. 28 U.S.C. § 2253(c)(2) states that a certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” This standard requires the petitioner to demonstrate that reasonable jurists
could debate whether the petition should have been resolved in a different manner or
that the “issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000); See also United States v. Fleming, 676, F.3d 621, 625 (7th Cir. 2012).
For the reasons explained above, the Court finds that Banks has failed to
demonstrate that his sentencing involved an error of constitutional magnitude or a
fundamental defect that resulted in a complete miscarriage of justice. Reasonable jurists
would not find these conclusions debatable.
Because Banks has failed to make a
substantial showing of the denial of a constitutional right, the Court DECLINES to
issue a certificate of appealability.
IT IS SO ORDERED.
DATED October 17, 2017
s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
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