Cross v. United States of America

Filing 30

ORDER signed by Judge J.P. Stadtmueller on 9/19/2018. In accordance with 29 the USCA 9/10/2018 Mandate: 1 Petitioner's Motion to Vacate, Set Aside or Correct His Sentence Pursuant to 28 U.S.C. § 2255 is GRANTED; 18 the Court's 5/30/2017 Judgment in this action is VACATED; and the Clerk of Court is DIRECTED to enter judgment in this case in Petitioner's favor. This action is DISMISSED. The parties are to jointly CONTACT the Court to schedule a resentencing hearing for Petitioner in Case No. 00-CR-36-JPS. See Order for further details. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DE’ANGELO CROSS,
Case No. 15-CV-1338-JPS
Criminal Case No. 00-CR-36-JPS

Petitioner,
v.
UNITED STATES OF AMERICA,

ORDER

Respondent.

On November 9, 2015, Petitioner De’Angelo Cross (“Cross”) filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence, arguing that the career-offender provision of the mandatory
sentencing

Guidelines

under

which

he

was

sentenced

is

unconstitutionally vague. (Docket #1). The Court denied the motion and
entered judgment in favor of the United States on May 30, 2017. (Docket
#17, #18). The Court found that Beckles v. United States, 137 S. Ct. 886
(2017), foreclosed Cross’ vagueness challenge, and in the alternative, Cross
had waived his ability to collaterally attack his sentence.
Cross appealed. The Court of Appeals reversed both of this Court’s
findings and remanded the case with instructions to grant Cross’ motion
and resentence him without the career-offender classification. (Docket
#29). The Court fulfills that obligation through the entry of this Order. The
Court will grant Cross’ motion for Section 2255 relief and direct that the
parties jointly contact the Court’s chambers to schedule a resentencing
hearing in Cross’ criminal case. The Probation Office is further directed to
prepare a new presentence investigation report consistent with the

Seventh Circuit’s guidance in this action. To afford the Probation Office
sufficient time to prepare the new report, the parties should confer with
the Court’s chambers to select a hearing date in November.
Accordingly,
IT IS ORDERED that, pursuant to the mandate of the Court of
Appeals for the Seventh Circuit issued on September 10, 2018, Petitioner’s
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255 (Docket #1) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the judgment against Petitioner
in this case (Docket #18) be and the same is hereby VACATED, and the
Clerk of the Court is directed to enter judgment in this case in Petitioner’s
favor;
IT IS FURTHER ORDERED that the parties jointly contact the
Court’s chambers as soon as practicable to schedule a resentencing
hearing for Petitioner in Case No. 00-CR-36-JPS;
IT IS FURTHER ORDERED that the Probation Office prepare a
new presentence investigation report for Petitioner’s resentencing which
is consistent with the instructions of the Court of Appeals in this matter;
and
IT IS FURTHER ORDERED that this case be and the same is
hereby DISMISSED.
Dated at Milwaukee, Wisconsin, this 19th day of September, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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