Khoury v. USA

Filing 16

ORDER GRANTING in part DENYING in part 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Michael J Khoury: The Court DIRECTS the Clerk of the Court to enter judgment accordingly. See attached Order for additional directives regarding a resentencing hearing, USMS, and Probation. Signed by Judge David R. Herndon on 1/26/17. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL J. KHOURY,
Petitioner,
v.
UNITED STATES OF AMERICA,

Civil Case No. 16-cv-1085-DRH
Criminal Case No. 15-cr-30013-DRH

Respondent.
MEMORANDUM & ORDER
HERNDON, District Judge:
I.

Introduction

This matter is before the Court on petitioner Michael J. Khoury’s motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1).
Specifically, Khoury argues that in light of recent case law (a) he no longer has the
requisite predicate offenses to make him an armed career criminal pursuant to 18
U.S.C. § 924(e) and (b) his base offense level under §2K2.1 was improperly
calculated.
On January 11, 2017, the United States filed a response to Khoury’s §
2255 petition (Doc. 15) in which they concede that his motion should be granted
in part following the United States v. Edwards, 836 F.3d 831 (7th Cir. 2016)
decision. The government indicates that in light of the Edwards decision,
Khoury’s guideline range is impacted. However, the government argues that
Khoury remains an armed career criminal based upon his numerous convictions

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for residential burglary. The government requests that this Court set aside
Khoury’s sentence and allow for resentencing pursuant to 28 U.S.C. § 2255(b)
based upon the Edwards issue, but find that Petitioner is still an armed career
criminal post-Mathis. For the reasons discussed herein, Khoury’s to motion to
vacate, set aside, or correct sentence (Doc. 1) is GRANTED in part and DENIED
in part.
II.

Background

On January 22, 2015, Khoury was charged with the unlawful possession of
a firearm by a felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), stemming from a
burglary that occurred in St. Clair County, Illinois on January 20, 2015. United

States v. Khoury, 15-cr-30013-DRH, (Doc. 1). 1 On May 12, 2015, Khoury pled
guilty to the indictment pursuant to a written plea agreement (Cr. Doc. 19). In the
plea agreement, the United States agreed to recommend a sentence at the low end
of the guidelines range, which the parties had calculated as being 188–235
months’ imprisonment (Cr. Doc. 20).
Ultimately, in light of previous burglary convictions, the Court concluded
that Khoury was an armed career criminal pursuant to 18 U.S.C. §924(e). His
guideline range was calculated as being 188–235 months, consistent with the plea
agreement. Neither party objected to the guideline calculation. On December 18,
2015, the Court found that the PSR properly calculated the guidelines range, and
Khoury was sentenced to 188 months’ imprisonment, 5 years of supervised

1

Further reference to Khoury’s criminal docket in this order will include “Cr. Doc.” prior to the
document number to differentiate from his civil habeas case filings.
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release, a $300 fine, and a $100 special assessment (Cr. Doc. 34). He did not file
a direct appeal.
On September 26, 2016, Khoury filed the pending motion to vacate, set
aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). In his § 2255,
Khoury argues that (1) in light of Mathis v. United States, 136 S.Ct. 2243, 2253
(2016), he no longer has the requisite predicate offenses to qualify as an armed
career criminal and (2) in light of United States v. Edwards, 836 F.3d 831 (7th
Cir. 2016), his base level offense was miscalculated.
III.

Analysis

a. Armed Career Criminal
The Armed Career Criminal Act applies when a defendant has three
convictions that constitute a “violent felony” or a “serious drug offense.” 18 U.S.C.
§ 924(e)(1). In this case, Khoury argues that in light of the Mathis case, he no
longer qualifies as an armed career criminal.

Mathis addressed the enumerated offenses clause of the ACCA. The
Supreme Court held that the Iowa burglary statute is not divisible, because it
creates alternative means and not alternative elements; thus, the district court
erred in using the modified categorical approach to determine whether Mathis’
burglary convictions were convictions for generic burglary. Mathis v. United

States, 136 S.Ct. 2243, 2253 (2016). The Court noted that “the modified
approach serves – and serves solely – as a tool to identify the elements of the
crime of conviction when a statute’s disjunctive phrasing renders one (or more) of

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them opaque,” and it “is not to be repurposed as a technique for discovering
whether a defendant’s prior conviction, even though for a too-broad crime, rested
on facts (or otherwise said, involved means) that also could have satisfied the
elements of a generic offense.” Mathis, 136 S.Ct. at 2253–54.
In this case, Khoury’s status as an armed career criminal was based on
multiple convictions for residential burglary, burglary, and 2nd degree burglary
spanning from 1993 until 2003 (Cr. Doc 29). The government concedes that
Khoury’s convictions under Missouri law for Burglary – 2nd Degree 2 no longer
qualify as “violent felonies” for purposes of the ACCA. See United States v. Smith,
No. 15-3033, 2016 WL 4626561 (7th Cir. Sept. 6, 2016). Moreover, the
government also concedes that Khoury’s convictions for Burglary 3 under Illinois
law no longer qualify as “violent felonies” for purposes of the ACCA. See United

States v. Haney, 840 F.3d 472, 475 (7th Cir. 2016).
That being said, Khoury’s numerous convictions for residential burglary
under Illinois law undoubtedly qualify as “violent felonies” for purposes of the
ACCA, even post-Mathis. 4 Khoury still has at least three residential burglary

2

Jefferson County, Missouri Case # 23CR197-1056 and St. Louis County Case # 03-CR-00014B
Monroe County Case # 94-CF-23 and St. Clair County Case # 98-CF-93
4
Both versions of the residential burglary statute – the current version and the version that was in
effect at the time of Khoury’s convictions – have “dwelling place of another” as the locational
element. As the locational element is the same in both, the version in effect at the time of Khoury’s
convictions did not have locations that fell outside the scope of generic burglary as defined in
Taylor. Thus, where Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016) held that entering
“without authority” was the same as entering “unlawfully,” and United States v. Haney, 840 F.3d
472, 475 (7th Cir. 2016) held that the Illinois residential burglary statute does not include
locations that fall outside Taylor’s scope, it is clear that a conviction for residential burglary under
Illinois law still qualifies as a “violent felony” under the enumerated offenses clause contained in
18 U.S.C. 924(e)(2)(B)(ii).
3

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convictions under Illinois law 5; thus, he remains an armed career criminal.
Accordingly, Khoury’s first ground for relief is denied.
b. Base Offense Level in light of Edwards
In September 2016, the Seventh Circuit applied Mathis in the context of
sentence enhancements under the sentencing guidelines. In United States v.

Edwards, 836 F.3d 831 (7th Cir. 2016), the Seventh Circuit scrutinized whether a
Wisconsin burglary statute was divisible, such that the sentencing judge could
consult the state court charging documents to help decide whether a prior
conviction was a crime of violence under the sentencing guidelines. The Court
ultimately found that the Wisconsin law was not divisible. It identified two
different means of committing a single crime (burglary) as opposed to listing
alternative elements that create multiple, distinct offenses.
The Seventh Circuit highlighted that “after Mathis… it's clear that this
recourse to state-court charging documents was improper. The relevant
subsection of Wisconsin's burglary statute sets forth alternative means of
satisfying the location element of the state's burglary offense.” Edwards, 836 F.3d
at 833. The Seventh Circuit held that the elements of the crime were broader
than “the elements of the Guidelines offense so the defendants' burglary
convictions cannot serve as predicate offenses under § 2K2.1(a).” Id. at 6.
In light of the Edwards decision, it appears that Khoury’s base offense level
is impacted and would have been lower than that imposed at the time of

5

St. Clair County Case # 93-CF-71, Madison County Case # 94-CF-283, Madison County Case #
94-CF-286, and Madison County Case # 94-CF-308 (two counts)
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sentencing. Accordingly, the Court grants Khoury’s motion as to his second
ground for relief and the matter shall set for resentencing
IV.

Certificate of Appealability

Under Rule 11(a) of the RULES GOVERNING SECTION 2255 PROCEEDINGS, the
“district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.”

A habeas petitioner does not have an

absolute right to appeal a district court’s denial of his habeas petition; he may
appeal only those issues for which a certificate of appealability have been granted.

See Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). 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. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). Under this standard, a
petitioner must demonstrate 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.’” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Where a district court denies a habeas petition on procedural grounds, the
court should issue a certificate of appealability only if (1) jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. See Slack, 529 U.S. at 485.

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In this case, the Court shall issue a final order adverse to Khoury regarding
his armed career criminal status. Thus the Court must decide whether to issue a
certificate of appealability. In this case, it is clear that reasonable jurists could not
debate that Khoury’s claims surrounding his status as an armed career criminal
should have been resolved in a different manner. Therefore, the Court declines to
certify the issue for review pursuant to 28 U.S.C. § 2253(c).
V.

Conclusion

For the reasons set forth above, Khoury’s motion pursuant to 28 U.S.C. §
2255 to vacate, set aside or correct sentence, is GRANTED in part and DENIED
in part (Doc. 1). The Court GRANTS Khoury’s motion based upon the Edwards
issue. However, Khoury’s claims addressing his status as an armed career
criminal are DISMISSED with prejudice. The Clerk is instructed to close the file
and enter judgment accordingly. The Court shall not issue a certificate of
appealability.
FURTHER, the Court finds it is appropriate to resentence Mr. Khoury and
DIRECTS the Clerk of the Court to set the matter for resentencing in case number
15-cr-30013 United States v. Khoury. The resentencing shall be set for May 11,
2017, at 1:30pm before the undersigned.
FURTHER, the Court DIRECTS the United States Marshals Service
(“USMS”) to transport Michael J. Khoury to the resentencing of this matter to be
held on May 11, 2017.

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FURTHER, in light of the resentencing hearing to be set in case number 15cr-30013, the Court DIRECTS the Probation office to update Mr. Khoury’s PSR
utilizing the current Guideline Manual and to provide the Court with information
regarding the Khoury’s conduct while incarcerated.
IT IS SO ORDERED.
Signed this 26th day of January, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.01.26
09:24:38 -06'00'
United States District Judge

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