Benson v. True

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 9/19/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AARON BENSON,
No. 23591-045,
Petitioner,
v.

No. 3:17-cv-00736-DRH

B. TRUE,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the USP-Marion, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of
his confinement. He asserts that in light of Mathis v. United States, –– U.S. ––,
136 S. Ct. 2243, 2250 (2016), he should not have been subject to the careeroffender enhancement under the United States Sentencing Guidelines (“USSG”)
based on a prior controlled substance conviction and a prior conviction for
assault in the 2nd degree. (Doc. 1, pp. 7-8).
This case is now before the Court for a preliminary review of the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b)

of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases, such as this action under 28 U.S.C. § 2241. Without commenting
on the merits of Petitioner’s claims, the Court concludes that the Petition survives
preliminary review under Rule 4 and Rule 1(b), and a response shall be ordered.
Background
Petitioner pled guilty on November 20, 2012, in the Western District of
Missouri to distribution of 5 grams or more of actual methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). (Doc. 1, p. 1); United States v.
Benson, Case No. 11-cr-201-GAF. That offense carried a minimum sentence of 5
years and a maximum of 40 years imprisonment. (Doc. 1, p. 7). In exchange for
his guilty plea, 3 other counts were dismissed. The plea agreement provided that
the government and Petitioner would request a sentence of 140 months. (Doc.
144 in criminal case). The parties agreed that under USSG § 2D1.1, Petitioner’s
base offense level was 26 for the conviction, and he would be entitled to a 3-level
reduction pursuant to § 3E1.1(b). (Doc. 144, p. 6 crim.). The agreement also
reflects the parties’ expectation that Petitioner would be classified as a “career
offender” under USSG § 4B1.1, however, there was no agreement on his criminal
history category. Id. The plea deal provided that the court would determine the
applicable criminal history category following review of the presentence
investigation report. Id.
The plea agreement contained a waiver of Petitioner’s appellate and postconviction rights. (Doc. 144, p. 9, crim.). This included a waiver of “the right to
appeal any sentence, directly or collaterally, on any ground except claims of (1)

ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal
sentence. An ‘illegal sentence’ includes a sentence imposed in excess of the agreed
sentence herein” of 140 months imprisonment. Id.
At Petitioner’s sentencing on April 30, 2013, the court determined that his
criminal history category was VI, and found that he was a career criminal under
the guidelines. (Doc. 199, pp. 7-9; Doc. 232, p. 2, crim.). His offense level was
adjusted from 34 down to 31 for his acceptance of responsibility, yielding a
guideline sentencing range of 188 to 235 months. (Doc. 199, p. 9; Doc. 232, p. 2,
crim.). Despite this guideline range, the court accepted the plea agreement and
sentenced Petitioner to the agreed-upon 140 months. Id.
Petitioner appealed, arguing that his plea was involuntary and his trial
counsel was ineffective. (Doc. 215-1 crim.). On February 13, 2014, the Eighth
Circuit concluded that the appeal waiver in the plea agreement should be
enforced, and dismissed the appeal. Id.; United States v. Benson, 553 F. App’x
660 (8th Cir. 2014).
Petitioner then filed a collateral attack on the sentence under 28 U.S.C.
§ 2255, raising claims of ineffective assistance of counsel and prosecutorial
misconduct.

(See Doc. 232 crim.).

He argued in part that trial counsel was

ineffective for failing to challenge the presentence report’s conclusion that he was
a career offender. (Doc. 232, pp. 4-5, crim.). The court found that counsel had
indeed challenged the career-offender finding, arguing that Petitioner’s prior
felonies were not crimes of violence and were not separate offenses.

Further,

Petitioner suffered no prejudice from counsel’s alleged ineffectiveness, because he
was not sentenced according to the career-offender guideline range, but instead
received the sentence he agreed to under the binding plea agreement. (Doc. 232,
p. 5, crim.).

The court also rejected Petitioner’s claim of prosecutorial

misconduct, which was based on an allegedly improper threat that he would face
two life sentences if he did not plead guilty. The court found that his plea was
knowing and voluntary, noting that if Petitioner had chosen to go to trial, he
would indeed have faced two life sentences.

(Doc. 232, pp. 6-7, crim.).

The

§ 2255 motion was denied.
The Petition
The instant § 2241 Petition, filed on July 13, 2017, asserts that under
Mathis v. United States, 136 S. Ct. 2243 (2016), the 140-month sentence was
unconstitutional.

(Doc. 1, p. 7).

Petitioner believes that the sentencing court

should have used the “modified categorical approach” to analyze whether his
prior convictions qualified as predicate offenses to subject him to the careeroffender enhancement.

Two prior state offenses were referenced in the

presentence investigation report to conclude that Petitioner qualified as a career
criminal: (1) a class B felony conviction for distribution or possession with intent
to distribute a controlled substance, and (2) assault in the 2nd degree. (Doc. 1, p.
8). Petitioner does not further elaborate on the nature of these offenses or identify
the state statutes under which he was convicted. He asserts that he may raise this
claim under the “savings clause” of 28 U.S.C. § 2255(e). He requests the Court to
“vacate and remand Petitioner’s enhancement under the career offender

guidelines.” (Doc. 1, p. 12).
Discussion
As the undersigned Judge has explained in a number of prior decisions, a
collateral attack based on Mathis against a career-offender-enhanced sentence
facially satisfies the conditions to be considered in a § 2241 proceeding under the
savings clause of § 2255(e). See e.g., Hoskins v. Werlich, No. 17-cv-652-DRH
(S.D. Ill. July 28, 2017); Wadlington v. Werlich, No. 17-cv-449-DRH (S.D. Ill. July
17, 2017); Davis v. USA, 17-cv-379-DRH (S.D. Ill. June 14, 2017); Warren v.
Werlich, No. 17-cv-84-DRH (S.D. Ill. Mar. 27, 2017). However, as the Court has
previously noted, Mathis involved the Armed Career Criminal Act (“ACCA”) and
not the federal sentencing guidelines. See United States v. Hinkle, 832 F.3d 569,
574 (5th Cir. 2016). Thus, the Mathis decision may or may not be applicable to
Petitioner’s sentence, because the enhancement of his sentencing guideline range
was determined based on the advisory sentencing guidelines and not on the ACCA
statute. The Supreme Court recently held that the residual clause in USSG
§ 4B1.2(a) was not subject to a vagueness challenge, distinguishing the situation
where a sentence was based on the advisory guidelines from a sentence imposed
under the residual clause of the ACCA statute. Beckles v. United States, –– U.S.
––, 137 S. Ct. 886, 197 L. Ed. 2d 145 (2017) (distinguishing Johnson v. United
States, –– U.S. ––, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015)).
Additionally, in Petitioner’s case, it is unclear what influence, if any, the
enhanced advisory sentencing range had on the determination of his 140-month

sentence – which was imposed according to the plea agreement reached between
Petitioner and the government.
Nonetheless, given the limited record before the Court and the stilldeveloping application of the Mathis decision, it is not plainly apparent that
Petitioner is not entitled to habeas relief. See Rule 4 of the Rules Governing §
2254 Cases in United States District Courts.

Therefore, the Court finds it

appropriate to order a response to the Petition.
Disposition
IT IS HEREBY ORDERED that Respondent shall answer or otherwise
plead within thirty days of the date this order is entered (on or before October 19,
2017).1

This preliminary order to respond does not, of course, preclude the

Government from raising any objection or defense it may wish to present. Service
upon the United States Attorney for the Southern District of Illinois, 750 Missouri
Avenue, East St. Louis, Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
The response date ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.

1

Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.

Judge Herndon
2017.09.19
06:41:13 -05'00'
UNITED STATES DISTRICT JUDGE