Hughes v. Werlich

Filing 4

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 3/21/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RUBEN D. HUGHES,
No. 7997-424,
Petitioner,
vs.

Case No. 18-cv-510-DRH

T.G. WERLICH,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the FCI-Greenville, 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 a sentencing
enhancement under the United States Sentencing Guidelines (“USSG”) based on
his prior Illinois drug-related conviction. (Docs. 1 and 1-1).
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
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corpus cases, such as this action under 28 U.S.C. § 2241. After carefully
reviewing the Petition, the Court concludes that this action is subject to dismissal.
Background
In 1997, in the Northern District of Illinois, petitioner was charged in a six
count superseding indictment (97-cr-670) with conspiracy to distribute and
possess with intent to distribute cocaine and cocaine base. (Doc. 1-1, p. 1). On
June 15, 1998, prior to trial, the government filed a Notice, pursuant to 21 U.S.C.
§ 851, advising petitioner that upon conviction, it would seek enhanced penalties
based on (1) petitioner’s 1990 felony drug conviction in Will County, Illinois (89CF-576) for possession of a controlled substance with intent to deliver and (2) the
fact that the offense with which petitioner was charged involved more than five
kilograms of cocaine and more than 50 grams of cocaine base (“crack”). (Doc. 11, p. 2; Doc. 1-2).
In June 1998, petitioner was convicted on five counts of trafficking cocaine
and cocaine base, and one count of illegal firearms possession. Following an
evidentiary hearing concerning the amount of cocaine base processed by
petitioner’s organization, the Court sentenced him to life imprisonment on each of
the five drug trafficking charges (Counts One through Five). The Court also
sentenced petitioner to 10 years on the firearms violation (Count Six). See U.S. v.
Hughes, 2004 WL 783070 (N.D. Ill. Jan. 13, 2004).
On direct appeal the Seventh Circuit upheld the convictions and sentences
on four of six counts. See United States v. Hughes, 213 F.3d 323, 335-36 (7th

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Cir.), vacated, 531 U.S. 975, 121 S.Ct. 423, 148 L.Ed.2d 432 (2000), reinstated
in part, 5 Fed.Appx. 507 (7th Cir.2001). In 2008 petitioner moved for a reduced
sentence under 18 U.S.C. § 3582(c)(2), invoking amendments to the sentencing
guidelines. The district court found petitioner ineligible for resentencing and
denied the motion. On July 13, 2010, the Seventh Circuit affirmed the judgment.
U.S.v. hughes, 384 Fed.Appx. 509 (7th Cir. 2010).
Most recently, petitioner moved for a reduced sentence under 18 U.S.C. §
3582(c)(2), invoking Amendment 782 to the United States Sentencing Guidelines.
(97-cr-670, Doc. 216). That motion was granted on June 15, 2017, and
petitioner’s previously imposed sentence of imprisonment of Life was reduced to
360 months. (97-cr-670, Doc. 236).
The Petition
Petitioner now claims that under Mathis v. United States, –– U.S. ––, 136
S. Ct. 2243, 2250 (2016), it was improper to enhance his federal sentence on the
basis of his Illinois drug conviction. He argues that the statute under which he
was convicted in Illinois (now found at 720 ILCS 570/401) is broader than the
federal generic offense under 21 U.S.C. § 841(a)(1).
The Illinois statute criminalizing possession with intent to deliver provided
that it is unlawful “knowingly to manufacture or deliver, or possess with intent to
manufacture or deliver, a controlled or counterfeit substance[.]” 720 ILCS
570/401 (1997); (formerly Ill. Rev. Stat. Ch. 56 1/2, para. 1401). Petitioner
contrasts this statute with the federal offense language, which makes it unlawful

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to knowingly or intentionally “manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled substance[.]” 21
U.S.C. § 841(a)(1). He argues that the Illinois statute is indivisible, and defines
the essential element of “delivery” broadly enough to include solicitation of
unlawful delivery, offering to sell without possession, and to share a controlled
substance without an exchange of consideration. He concludes that because §
841(a)(1) does not criminalize solicitation of unlawful delivery of a controlled
substance, an offer to sell, or sharing a controlled substance, the elements of the
Illinois crime is overly broad and does not match the federal statute. On this
basis, petitioner seeks to be resentenced without the allegedly improper
enhancement.
Discussion
This Court has found that a collateral attack invoking Mathis v. United
States, –– U.S. ––, 136 S. Ct. 2243, 2250 (2016), facially satisfies the three
conditions which would allow consideration 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, the Seventh

Circuit on November 8, 2017, issued an opinion squarely rejecting a challenge to
the enhancement of a federal sentence that had been based on prior Illinois drug
convictions. United States v. Redden, 875 F.3d 374 (7th Cir. 2017) (career

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offender enhancement of sentence based on Illinois controlled substance
convictions was proper, distinguishing United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016)). Petitioner challenges the Redden decision and argues that this
Court should not apply it to his case. However, Redden is controlling authority in
this Circuit, and based on the Redden opinion, the instant Petition must be
dismissed.
The Redden court, referencing the Illinois statute’s definitions relating to
controlled substance offenses, stated:
The definition that underlies the offense established by 720 ILCS
570/401 tells us that “deliver” and “delivery” mean an “actual,
constructive or attempted transfer”. 720 ILCS 570/102(h). Any
conduct meeting the state's definition of “delivery” comes within §
4B1.2(b) because “transfer” is just another word for distribute or
dispense.
Redden, 875 F.3d at 374. The Illinois statute does not contain the element of
“offering” a drug for sale, as did the Texas statute that led the Hinkle court to
invalidate Hinkle’s career-offender enhancement. Given the equivalence of
“delivery” in Illinois with “distribute or dispense” under the federal definitions, the
Seventh Circuit concluded that “it would be frivolous . . . to argue that Redden is
not a career offender” based on his Illinois drug convictions. Redden, 875 F.3d at
374.
Applying the Redden court’s binding precedent, petitioner’s Illinois
controlled substance conviction under 720 ILCS 570/401 was properly used as a

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predicate conviction for his sentencing enhancement.1 Petitioner is therefore not
entitled to relief in this action.
Disposition
To summarize, petitioner’s claim that his Illinois drug conviction should
not be considered a “controlled substance offenses” that would trigger enhanced
career-offender sentencing is frivolous under United States v. Redden, 875 F.3d
at 374. Accordingly, the Petition is summarily DISMISSED with prejudice.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this Court within 60 days of the entry of judgment. FED. R. APP. P. 4(a)(1)(B).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If petitioner
does choose to appeal and is allowed to proceed IFP, he will be liable for a portion
of the $505.00 appellate filing fee (the amount to be determined based on his
prison trust fund account records for the past six months) irrespective of the
outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons
v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). A proper and timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 60-day appeal deadline. A Rule 59(e) motion must
be filed no more than twenty-eight (28) days after the entry of the judgment, and
this 28-day deadline cannot be extended. It is not necessary for petitioner to
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It is not clear that petitioner’s prior Illinois conviction contributed to the initial imposition of a life sentence. (Doc.
1-1, p. 6). Regardless, even assuming that petitioner’s sentence was enhanced as a result of this prior conviction, as
outlined above, under Redden his argument is without merit.

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obtain a certificate of appealability from this disposition of his § 2241 Petition.
Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.

Judge Herndon
2018.03.21
12:36:35 -05'00'
United States District Judge

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