Groves v. United States of America

Filing 1

OPINION AND ORDER: The Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED. A Certificate of Appealability is DENIED. Signed by Judge Robert L Miller, Jr on 12/19/16. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEVON GROVES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 3:16-cv-384 RLM
(Arising from 3:06-cr-69 RLM)

OPINION AND ORDER
Devon Groves was sentenced to twenty years’ imprisonment for being a
felon in possession of ammunition and a felon in possession of a firearm. 18
U.S.C. § 922(g)(1). This matter is before the court on his motion to vacate and
correct his sentence. 28 U.S.C. § 2255. The court denies Mr. Groves’s motion.

I. BACKGROUND
A jury convicted Mr. Groves of one count of being a felon in possession of
ammunition and one count of being a felon in possession of a firearm. 18 U.S.C.
§ 922(g)(1). At sentencing, the court considered his prior burglary conviction as
a felony “crime of violence.” U.S.S.G. § 4B1.2(b). When coupled with another
felony “crime of violence,” Mr. Groves’s base offense level increased from 22 to
24. § 2K2.1(a)(2), (3). The court raised his offense level by another 2 because the
firearm was stolen, § 2K2.1(b)(4), and another 4 because he possessed the
ammunition in connection with another felony, criminal recklessness, §
2K2.1(b)(6). With a final adjusted offense level of 30 and a criminal history

category of V, the guidelines recommended a sentence of 151 to 188 months. If
the prior burglary weren’t a “crime of violence,” the guidelines would’ve
recommended 130 to 162 months.
After calculating the guideline range, the court chose a sentence it believed
to be reasonable based on the factors in 18 U.S.C. § 3553(a). The court saw that:
“Mr. Groves did far more than possess some ammunition in April
and a firearm in June. He used the ammunition to fire 16 shots into
a house with 4 people, including a baby, in it. He brandished the
firearm on other occasions while threatening to shoot up everyone
in another house. He was seen with firearms (though perhaps the
same ones) on multiple other occasions in the intervening months.”
The court noted that these convictions were Mr. Groves’s third and fourth felony
convictions in twelve years, and “how frequently he is around firearms.” Prior
sentences seemed unable to protect the public from Mr. Groves. There were no
mitigating factors. Despite the guideline-recommended sentence, “[r]eview of the
factors specifically set forth in 18 U.S.C. § 3553(a) persuade[d] the court that a
240-month sentence is appropriate.” The court sentenced Mr. Groves to the
statutory maximum of 10 years for each of the crimes, to be served consecutively.
When deriving the guideline recommendation, the court based its
determination that Mr. Groves’s prior burglary conviction was a “crime of
violence” on charging documents indicating that he committed a burglary of a
dwelling, a Class B felony. IND. CODE § 35-43-2-1. Instead, Mr. Groves had
pleaded guilty to the lesser offense of burglary of a building, a Class C felony. Id.
Mr. Groves didn’t object to the classification of his prior offense as a “crime of
violence” at sentencing or on appeal.

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On appeal, Mr. Groves contested the reasonableness of the court’s twentyyear sentence, among other issues. The court of appeals concluded that “[t]he
district court painstakingly considered both the guidelines range and the
sentencing factors that properly inform the court's exercise of post-Booker
sentencing discretion under 18 U.S.C. § 3553(a).” United States v. Groves, 559
F.3d 637, 642 (7th Cir. 2009). The court of appeals affirmed the sentence. Id.
Eventually Mr. Groves discovered that the guideline recommendation was
based on the form of burglary for which he was charged, not the form for which
he was convicted. He brought an ineffective assistance of counsel claim based in
part on his counsel’s failure to object to the classification of the prior burglary
as a “crime of violence.” This court denied the motion, finding that Mr. Groves’s
counsel acted reasonably based on the law at the time of sentencing. The court
didn’t need to address whether the error actually prejudiced Mr. Groves.
Mr. Groves appealed. The court of appeals again affirmed the district court,
reasoning that “[u]ntil at least 2009, confusion existed regarding the approach
sentencing courts must take in determining whether a prior conviction fits the
definition of ‘crime of violence’ set forth in § 4B1.2(a)(2).” Groves v. United States,
755 F.3d 588, 593 (7th Cir. 2014). “In [United States v.] Woods, [576 F.3d 400
(7th Cir. 2009)], [the court of appeals] clarified that sentencing courts can only
consult additional materials, such as charging instruments, if the criminal
statute was divisible, namely, if the offense covers a wide variety of conduct that
poses a risk of violence and also conduct that does not.” Id. But Mr. Groves was
sentenced before Woods, when the law wasn’t objectively clear. Because the

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court of appeals agreed that Mr. Groves’s counsel performed reasonably, it
affirmed the district court, and also didn’t need to address whether the error
prejudiced him.
On June 26, 2015, the Supreme Court decided Johnson v. United States,
135 S. Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act,
which imposes a fifteen-year mandatory minimum sentence for a defendant who
committed three prior “violent felonies.” The statute defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one
year . . . that –
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another [known as the “elements
clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known
as the “enumerated offenses clause”], or otherwise involves conduct
that presents a serious potential risk of physical injury to another
[known as the “residual clause”];
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U.S.C.

§

924(e)(2)(B).

Johnson

held

that

the

residual

clause

is

unconstitutionally vague under the Due Process Clause, U.S. CONST. amend. V.
Johnson announced a substantive rule retroactively applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
Mr. Groves wasn’t sentenced under the residual clause of the ACCA
definition of “violent felony.” The guidelines’ definition of “crime of violence,”
however, is identical. U.S.S.G. § 4B1.2. Mr. Groves argues that the court erred
in reviewing his prior burglary conviction as a burglary of a dwelling instead of
burglary of a building. Had the court considered the appropriate crime, it
couldn’t have classified it as a “crime of violence” under either the “elements

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clause” or the “enumerated offenses clause.” Mr. Groves argues that after
Johnson, the “residual clause” is unconstitutionally vague, and so the prior
shouldn’t have been considered a “crime of violence” at all. As a result, his
guideline recommendation and sentence should’ve been lower.

II. STANDARD OF REVIEW
One convicted of a federal crime can challenge his sentence on grounds
that the sentence violates the Constitution or laws of the United States. 28 U.S.C.
§ 2255(a). Mr. Groves filed his motion to correct his sentence within one year of
when “the right asserted was initially recognized by the Supreme Court” in
United States v. Johnson, 135 S. Ct. 2551 (2015). § 2255(f)(3). This is a
successive petition that the court of appeals authorized. 28 U.S.C. §§ 2255(h).
An evidentiary hearing isn’t required if “the motion and files and records
of the case conclusively show that the petitioner is entitled to no relief.” 28 U.S.C.
§ 2255. After reviewing Mr. Groves’s petition and the record of this case, the
court concludes that the factual and legal issues raised can be resolved on the
record, so no hearing is necessary. See Menzer v. United States, 200 F.3d 1000,
1006 (7th Cir. 2000) (hearing not required where the record conclusively
demonstrates that a petitioner is entitled to no relief on § 2255 motion).

III. DISCUSSION
While Mr. Groves awaited this order, the court of appeals extended the
Supreme Court’s holding in Johnson to invalidate the guidelines’ residual clause.

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U.S.S.G. § 4B1.2(a)(2); United States v. Hurlburt, 835 F.3d 715, 720 (7th Cir.
2016). In other words, if Mr. Groves were sentenced today, the residual clause
could play no part in the sentencing. But even if Mr. Groves can show that the
court can retroactively fix the error in the prior offense it considered, see Schriro
v. Summerlin, 542 U.S. 348 (2004), that Johnson and Hurlburt apply
retroactively to guideline errors, see id., that his motion is timely, see 28 U.S.C.
§ 2255(f), and that he didn’t default on his claim, see Ashley v. United States,
266 F.3d 671 (7th Cir. 2001), Mr. Groves’s still doesn’t show “actual prejudice.”
As a result, his claim must be denied.
“[P]ostconviction relief requires a showing that ‘the error had substantial
and injurious effect or influence in determining the jury’s verdict. Under this
standard, habeas [corpus] petitioners . . . are not entitled to habeas [corpus]
relief based on trial error unless they can establish that it resulted in ‘actual
prejudice.’” Hawkins v. United States, 724 F.3d 915, 917 (7th Cir. 2013) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This principle also holds true
in the context of sentencing error and under § 2255 collateral review. Id.
The guidelines typically have a strong “anchoring” effect on sentencing.
Hurlburt, 835 F.3d at 723. Their “central role in sentencing means that an error
related to the Guidelines can be particularly serious.” Molina-Martinez v. United
States, 136 S. Ct. 1338, 1345 (2016). Even still, “[t]here may be instances when,
despite application of an erroneous Guidelines range, a reasonable probability of
prejudice does not exist.” Id. at 1346. “The record in a case may show, for
example, that the district court thought the sentence it chose was appropriate

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irrespective of the Guidelines range.” Id.; United States v. Tate, 822 F.3d 370,
377 (7th Cir. 2016) (“An error in calculating the Guideline range can still be
harmless where the district judge makes clear that the sentence would have been
the same absent the error.”).
Molina-Martinez and Tate apply the standard for appellate review of a
guideline error, under which the burden is on the government to show that an
error in guideline calculation was harmless. United States v. Hines-Flagg, 789
F.3d 751, 757 (7th Cir. 2015). On collateral review, however, the petitioner must
show that “the error had substantial and injurious effect.” Hawkins v. United
States, 724 F.3d at 917. Mr. Groves hasn’t met this burden.
Even under the petitioner-favoring burden of proof on appellate review, the
record in this case shows “that the district court thought the sentence it chose
was appropriate irrespective of the Guidelines range.” Molina-Martinez v. United
States, 136 S. Ct. at 1346. As explained before, the sentencing court explicitly
rejected the guideline range when determining a reasonable sentence for Mr.
Groves pursuant to 18 U.S.C. § 3553(a). The guideline recommendation was
based on Mr. Groves’s convictions for being a felon in possession of a firearm
and ammunition. But the court realized that the facts of his particular case
showed far greater culpability than in the typical case: “He used the ammunition
to fire 16 shots into a house with 4 people, including a baby, in it. He brandished
the firearm on other occasions while threatening to shoot up everyone in another
house. He was seen with firearms . . . on multiple other occasions . . . .” Whether
Mr. Groves’s prior burglary involved a generic building or a dwelling, and whether

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that resulted in a two-level enhancement, were irrelevant. However classified,
the court noted that Mr. Groves had four felony convictions in twelve years and
is frequently around firearms, regardless of whether the prior burglary involved
a dwelling or a building.
The guidelines didn’t consider the true severity of Mr. Groves’s actions, so
the court saw fit to sentence him to the statutory maximum, twenty years.
Correcting the error in how the prior burglary was classified would have resulted
in a two-level decrease in Mr. Groves’s adjusted offense level, but would have
had no effect on his actual sentence. Even if the government had to prove
harmless error under the standard for appellate review, it would have succeeded.
The petitioner hasn’t shown a “substantial and injurious effect.” Hawkins, 724
F.3d at 917.
Cases cited by Mr. Groves, such as United States v. Coleman, 763 F.3d
706 (7th Cir. 2014), don’t change this result. Sentencing errors aren’t cognizable
under § 2255, except “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 at 708. Mr. Groves argues that because Johnson and
Hurlburt recognize constitutional flaws in the guidelines’ residual clause, then
error in Mr. Groves’s sentence is “of constitutional . . . magnitude.”
This isn’t the approach the court of appeals has adopted. Peugh v. United
States, 133 S. Ct. 2072 (2013) applied ex post facto challenges to the guidelines.
Even though Peugh recognized this constitutional requirement, someone

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sentenced before Peugh still doesn’t have a cognizable Peugh-based claim on
collateral review. See Conrad v. United States, 815 F.3d 324 (7th Cir. 2016).
Neither is an incorrect guideline application a “miscarriage of justice” after the
Supreme Court held the guidelines only to be advisory. Hawkins v. United States,
706 F.3d 820, 825 (7th Cir. 2013).
If the court considered Mr. Groves’s prior burglary as a burglary of a
building and hence not as a “crime of violence,” Mr. Groves’s sentence would
have come out exactly the same. Any error in classification of the burglary had
no effect on his sentence, and so Mr. Groves’s motion is denied.

IV. CERTIFICATE OF APPEALABILITY
Issuance of a certificate of appealability requires the court to find that Mr.
Groves has made “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). He hasn’t done so and the court declines to issue one.
The law on whether Johnson applies to the guidelines and, if so, whether
it applies retroactively, is in flux. See Beckles v. United States, 616 F. App’x 415
(11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016). Whatever the outcome of
Beckles, a petitioner will still have to show that a sentencing error had a
“substantial and injurious effect.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993); Hawkins v. United States, 724 F.3d 915, 917 (7th Cir. 2013) (applying
Brecht standard on § 2255 collateral review).
Beckles might disturb the court of appeals’ conclusion that guideline
errors don’t have “substantial and injurious effect” so long as the petitioner is

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sentenced within the statutory limits. See, e.g., Conrad v. United States, 815
F.3d 324, 328 (7th Cir. 2016) (“A change in the guidelines affects the sentence
that a judge is likely to impose but does not alter the range of sentences that he
can lawfully impose. So although the increase in the guidelines range of which
the defendant complains in this case not only postdated his crime but also could
have had a significant effect on his sentence, he is not entitled to be
resentenced.”). Even if Beckles forces a different approach to assessing the
retroactivity or “substantial and injurious effect” of a guideline error, a petitioner
will still have to show “substantial and injurious effect.” No matter how lax that
burden may be on a petitioner, or even if it becomes the government’s burden to
show harmless error, the guideline error here had no effect on Mr. Groves’s
sentence. There’s no substantial showing of denial of a constitutional right.

V. CONCLUSION
Based on the foregoing, the court DENIES Mr. Groves’s § 2255 motion to
vacate and correct his sentence [3:06-cr-69, Doc. No. 232], declines to issue a
certificate of appealability, and directs the Clerk to dismiss the associated civil
case [3:16-cv-384].
SO ORDERED.
ENTERED: December 19, 2016
/s/ Robert L. Miller, Jr.
Judge
United States District Court

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