Scanlan v. United States of America
ORDER signed by Judge Pamela Pepper on 9/24/2016 LIFTING 1/26/16 STAY, and ORDERING the Respondent to inform the court by day's end on 10/5/2016 whether it opposes the court amending the Petitioner's judgment of conviction. (cc: all counsel)(pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ERIC S. SCANLAN,
Case No. 13-cv-440-pp
UNITED STATES OF AMERICA,
ORDER LIFTING JANUARY 26, 2016 STAY (DKT. NO. 24), AND ORDERING
THE RESPONDENT TO INFORM THE COURT BY DAY’S END ON OCTOBER
5, 2016 WHETHER IT OPPOSES THE COURT AMENDING THE
PETITIONER’S JUDGMENT OF CONVICTION
On September 30, 2010, the late Judge Rudolph T. Randa sentenced the
petitioner to serve ninety-three (93) months in custody, after his guilty plea to
the charge of being a felon in possession of a firearm under 18 U.S.C.
§922(g)(1). Case No. 10-cr-25, at Dkt. Nos. 20, 21. On June 10, 2010, the
defendant entered his guilty plea to the felon-in-possession charge. Id. at Dkt.
No. 19. The plea agreement provided that the base offense level for the crime of
conviction was level 24, pursuant to U.S.S.G. §2K2.1(a)(2) (although it left the
defendant free to argue for a lesser offense level). Id. at Dkt. No. 18 at 6. The
agreement also provided that the government would recommend a two-level
decrease to that offense level for acceptance of responsibility, and also would
(under appropriate circumstances) move for an additional one-level decrease
under U.S.S.G. §3E1.1(b). Id. Finally, the government agreed to recommend a
sentence within the applicable guideline range. Id. at 7.
On September 30, 2016, Judge Randa sentenced the defendant to the
93-month sentence. Id. at Dkt. No. 20. The court minutes from the sentencing
indicate that Judge Randa sentenced the defendant to serve 96 months, but
gave him three months’ credit for time he’d served in state custody. Id. The
minutes also indicated that the defendant’s criminal history category was VI.
Id. at 3. Finally, the minutes indicated that while the court could have imposed
a sentence above the guidelines range, it instead imposed the top-of-the-range
96-month sentence. Id. at 4.
The sentencing table in the 2010 Sentencing Guidelines Manual shows
that an offense level of 21 (the level 24 the government recommended in the
plea agreement, minus 3 levels for acceptance of responsibility) in criminal
history category VI yielded a sentencing range of 77 to 96 months; a sentence
of 96 months was the highest sentence available in that range.
As the plea agreement indicated, the relevant sentencing guideline was
U.S.S.G. §2K2.1. Section 2K2.1(a)(2) of the 2010 version of the Guidelines
manual reflect that, if a defendant was convicted of being a felon in possession
of a firearm It says that if the defendant committed any part of the instant
offense "subsequent to sustaining at least two felony convictions of either a
crime of violence or a controlled substance offense," the base offense level for
beginning the guidelines calculations was 24. If the same defendant had only
one qualifying prior, §2K2.1(a)(4) stated that his base offense level would be 20.
Application Note 1 to §2K2.1 stated that the definition of "crime of violence" for
the purposes of §2K2.1(a) "has the meaning give that term in 4B1.2(a) and
Application Note 1 of the Commentary to 4B1.2." In the 2010 manual, §4B1.2
defined “crime of violence” as any offense that “has as an element the use,
attempted use, or threatened use of physical force against the person of
another, or . . . is a burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk
of physical injury to another.”
The petitioner appealed Judge Randa’s sentence to the Seventh Circuit.
Id. at Dkt. No. 23. He argued that Judge Randa erred in including as one of the
§2K2.1(a) predicate “crimes of violence” his conviction for first-degree
residential burglary under California Penal Code § 459. Case No. 10-cr-25, Dkt.
No. 33 at 4-5. He argued that burglary under §459 was not an enumerated
crime of violence under the §4B1.2 definition. Id. The Seventh Circuit
disagreed, and affirmed the sentence. Id. at 7-8.
On April 22, 2013, the petitioner filed the current petition. Case No. 13cv-440, Dkt. No. 1. The petition asserted that the petitioner’s lawyer had
provided ineffective assistance of counsel and that his sentence violated the
Fourteenth Amendment Due Process Clause. Id. Judge Randa appointed
counsel to represent the petitioner, Dkt. No. 6, and on October 11, 2013,
counsel filed an amended petition, Dkt. No. 11. The amended petition retained
the ineffective assistance of counsel claim, but also argued that the district
court had improperly enhanced the petitioner’s sentence under §2K2.1(a)(2)
under the Supreme Court’s decision in Descamps v. United States, 133 S. Ct.
2276 (2013), which held that a conviction for burglary under §459 of the
California Penal Code could not serve as a predicate for enhancing a
defendant’s sentence under the Armed Career Criminal Act. Id. Judge Randa
issued a briefing schedule, Dkt. No. 12, and the final brief under that schedule
was filed on February 19, 2014, Dkt. No. 17.
On June 26, 2015, the United States Supreme Court decided Johnson v.
United States, 135 S. Ct. 2551 (2015), in which it held that the residual clause
of the Armed Career Criminal Act was unconstitutionally vague. Judge Randa
had not yet decided this petition, and the parties jointly asked him to give them
time to submit briefs on the impact of the Johnson decision on the second
issue the amended petition had raised. Dkt. No. 20. Judge Randa granted that
request. After the parties had finished their briefing, however, the court stayed
further proceedings, because there were several cases pending before the
Seventh Circuit which could further impact the resolution of the petitioner’s
second issue. Dkt. No. 24. The court entered that stay on January 26, 2016.
Judge Randa stayed the case pending the Seventh Circuit’s rulings in
United States v. Hurlburt/Gillespie, ___ F.3d ___, 2016 WL 4506717 (7th Cir.,
August 29, 2016) and United States v. Rollins, ___ F.3d ___, 2016 WL 4587028
(7th Cir., August 29, 2016). The Seventh Circuit now has decided those cases.
Particularly relevant to this case is the court’s decision in Hurlburt, in which it
concluded that the residual clause of the definition of “crime of violence” in
§4B1.2 (under which predicate offenses for the purposes of §2K2.1 are defined)
was unconstitutionally vague.
The defendant was sentenced five years and 391 days ago. He was
sentenced to serve seven years and eleven months—the high end of the
guideline range if, in fact, his starting offense level was 24, based on his having
two prior convictions for “crimes of violence” as defined by §4B1.2. Since his
conviction—in fact, since the date he filed this petition—the United States
Supreme Court and the Seventh Circuit have issued a series of decisions
which, cumulatively, have invalidated the portion of the §4B1.2 “crime of
violence” definition which includes crimes which “otherwise involves conduct
that presents a serious potential risk of physical injury to another.” In its
decision affirming the petitioner’s sentence on appeal, the Seventh Circuit
concluded that his prior conviction for burglary under California Penal Code §
459 qualified as a crime of violence under the very residual clause that it now
has found unconstitutional. Case No. 10-cr-25, Dkt. No. 33 at 8.
This court concedes that the petitioner has raised this issue in a
collateral attack under 28 U.S.C. §2255, and that the Supreme Court has not
yet ruled on whether its decision in Johnson applies retroactively to collateral
attacks on sentencing enhancements predicated on the §4B1.2 residual clause.
But it has accepted certiorari on that question. Beckles v. United States, 136 S.
Ct. 2510 (June 27, 2016). And this circuit’s law, binding on this court, has
invalidated the residual clause which formed the basis for one of the predicate
offenses used to enhance the petitioner’s sentence.
If the petitioner’s California burglary conviction was not a valid predicate
offense, then under U.S.S.G. §2K2.1(a)(4), he would have had only one
predicate conviction, and his base offense level would have been 20, not 24.
Subtracting the three levels for acceptance of responsibility called for in the
plea agreement, he would have had an adjusted offense level of 17, in criminal
history category VI, which yields (under the 2010 Guidelines Manual) a
sentencing range of 51 to 63 months. Subtracting from the top of that range
the three months’ credit Judge Randa gave the petitioner, a top-of-theguidelines sentence would have been sixty months—five years, almost a year
less than it appears he already has served.
Given these circumstances, the court ORDERS as follows:
The court ORDERS that the January 26, 2016 stay imposed by Judge
Randa is LIFTED. Dkt. No. 24. The court ORDERS that, no later than the end
of the day on Wednesday, October 5, 2016, the respondent shall file a
statement, notifying the court and the petitioner whether it would oppose the
court entering an amended order of judgment in Case No. 10-cr-25, sentencing
the petitioner to serve a term of 63 months in custody, minus three months’
credit for time served. If the respondent indicates that it would object to the
court amending the judgment in that manner, the court will schedule a
telephone hearing at the earliest possible date thereafter, to hear argument.
Dated in Milwaukee, Wisconsin this 24th day of September, 2016.
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