Daniels v. United States of America

Filing 22

ORDER signed by Judge J.P. Stadtmueller on 6/16/2017: DENYING 9 Petitioner's Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255; DISMISSING action with prejudice; and GRANTING a Certificate of Appealability. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL DANIELS,
Petitioner,

v.

Case No. 15-CV-1440-JPS
Criminal Case No. 90-CR-42-JPS

UNITED STATES OF AMERICA,
Respondent.

ORDER

On November 30, 2015, Petitioner Michael Daniels (“Daniels”) filed
a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. (Docket #1). On March 19, 2016, with the aid of counsel and the
Court’s leave, Daniels filed an amended motion. (Docket #9). After the
parties briefed the motion, the Court determined that it should be stayed
pending resolution of several relevant appeals before the Seventh Circuit
relating to the effect of Johnson v. United States, 135 S. Ct. 2551 (2015), on
the petition. (Docket #13). Also at that time, another pertinent case, Beckles
v. United States, No. 15-8544, was pending in the Supreme Court.
Beckles was decided on March 6, 2017. Beckles v. United States, 137 S.
Ct. 886 (2017). After that decision was issued, the parties sought to lift the
stay in this case and brief how the disposition in Beckles affects Daniels’
pending motion. See (Docket #16). That briefing completed, the Court now
turns to considering the merits of Daniels’ motion. For the reasons stated
below, the Court finds that Beckles precludes his claim and, as a result, his
motion must be denied.

1.

BACKGROUND
In the underlying criminal case, Daniels was convicted of one count

of conspiracy to possess with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2; three counts of using a communication
facility to facilitate the distribution of cocaine, in violation of 21 U.S.C. §
843(b) and 18 U.S.C. § 2; and one count of using firearms in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c). He was sentenced
as a career offender under the U.S. Sentencing Guidelines. The Court
imposed concurrent sentences totaling 420 months on the narcotics
offenses and a consecutive sentence of sixty months on the firearms
offense, for a total of 480 months of incarceration.
After a partially successful previous motion under Section 2255, the
Court resentenced Daniels on November 25, 1997, again as a career
offender under the Guidelines. This time, the Court imposed the same 420
months on the drug convictions but, in light of the result of the habeas
motion, it did not impose a consecutive sentence for the firearm
conviction. Daniels unsuccessfully appealed this resentencing and
thereafter filed a number of post-conviction motions, some of which the
Court characterized as Section 2255 motions. See (Case No. 90-CR-42-JPS,
Docket #568). Eventually, he sought leave from the Court of Appeals to
file the instant motion, which was granted. See 28 U.S.C. § 2244(b)(3);
(Case No. 90-CR-42-JPS, Docket #571).
The Guidelines provide that those who qualify as “career
offenders” must be given certain offense level and criminal history
category increases. U.S.S.G. § 4B1.1(b). A defendant is a career offender if
(1) he was at least eighteen years old at the time he committed the instant
offense of conviction; (2) the instant offense of conviction is a felony that is
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either a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense. Id. § 4B1.1(a). At the time
Daniels was sentenced, the term “crime of violence” as used in the
Guidelines was defined as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that—(1) has
as an element the use, attempted use, or threatened use of physical force
against the person of another, or (2) is 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.” Id. § 4B1.2(a)
(emphasis added). The italicized portion of this definition is known as the
“residual” clause.1
One of Daniels’ predicate offenses for purposes of the careeroffender Guideline was a narcotics offense. (Docket #12 at 4). The parties
agree that because it was not a drug trafficking offense, it should not have
qualified as a predicate. Id. However, that issue is not presently before the
Court because it should have been included in Daniels’ prior collateral
attacks and was not. See (Case No. 90-CR-42-JPS, Docket #571 at 2).
Daniels therefore presses his claim only as to his other predicate offense,

Pursuant to Amendment 798 to the Guidelines, effective August 1, 2016,
the Sentencing Commission deleted the residual clause contained in U.S.S.G. §
4B1.2(a)’s definition of a “crime of violence” and replaced it with language that
simply enumerates specific offenses that can be considered crimes of violence.
Amendment 798 was not made retroactive, see U.S.S.G. § 1B1.10(d) (listing
amendments to be applied retroactively pursuant to 18 U.S.C. § 3582(c)(2)), and it
is therefore not applicable to Daniels, U.S.S.G. § 1B1.11 (“The court shall use the
Guidelines Manual in effect on the date that the defendant is sentenced.”); Belton
v. United States, 71 F. App’x 582, 583 (7th Cir. 2003) (noting that Section 1B1.10 of
the Guidelines defines which amendments may be applied retroactively).
1

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which involved sexual misconduct against a minor. (Docket #12 at 4). That
crime qualified as a career-offender predicate only under the residual
clause.
At the time of Daniels’ sentencing and resentencing, adherence to
the Guidelines was mandatory. The Supreme Court in United States v.
Booker, 543 U.S. 220, 233 (2005), found that this practice was
unconstitutional. Since Booker, the Guidelines are the starting point in
fashioning sentences but can be departed from under appropriate
circumstances. Peugh v. United States, 133 S. Ct. 2072, 2083 (2013).
In 2015, the Supreme Court invalidated the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Johnson, 135 S.
Ct. at 2560. The ACCA defines a “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; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)
(emphasis added). Notably, the emphasized portion of this definition is
identical to the analogous clause in the career-offender Guideline, U.S.S.G.
§ 4B1.2(a)(2), and it is also referred to as the “residual” clause. The Johnson
Court found that the ACCA’s residual clause is unconstitutionally vague,
in violation of the Due Process Clause of the Fifth Amendment. Johnson,
135 S. Ct. at 2560.
In 2015, Daniels filed the instant motion. According to him, because
Johnson found that the ACCA’s residual clause is unconstitutionally
vague, the same result should obtain for the identically worded residual
clause in the Guidelines. See United States v. Edwards, 836 F.3d 831, 835 n.2
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(7th Cir. 2016) (observing that cases analyzing “violent felony” under the
ACCA and “crime of violence” under the Guidelines are interchangeable).
After Daniels’ motion was fully briefed, the Court stayed the case pending
resolution of several pertinent appeals, as noted above. Most salient here
is the decision in Beckles, which held that the residual clause of the careeroffender Guideline, unlike the ACCA, is not susceptible to vagueness
challenges. Beckles, 137 S. Ct. at 897.
Key to the Court’s analysis was the fact that the ACCA represented
a legislative pronouncement fixing the permissible range of sentences for
qualifying conduct. Id. at 892. By contrast, the post-Booker, advisory
Guidelines “merely guide the exercise of a court’s discretion in choosing
an appropriate sentence within the statutory range.” Id. Because judicial
discretion is part and parcel of the Guidelines, the constitutional concerns
that animated Johnson—providing notice to defendants of what conduct
will subject them to enhanced penalties under the ACCA and preventing
arbitrary application of the ACCA’s standards—are not implicated by the
Guidelines. Id.
In her concurrence, Justice Sotomayor contended that the
Guidelines should be open to vagueness challenges because of their
centrality in the sentencing process. Id. at 900 (Sotomayor, J., concurring in
the judgment). More important to this case, however, is her suggestion
that “[t]he Court’s adherence to the formalistic distinction between
mandatory and advisory rules at least leaves open the question whether
defendants sentenced to terms of imprisonment before our decision in
[Booker]—that is, during the period in which the Guidelines did ‘fix the
permissible range of sentences’—may mount vagueness attacks on their
sentences.” Id. at 903 n.4 (internal citations omitted). Justice Sotomayor
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expressed no firm view on the merit of any such challenge. Id. (“That
question is not presented by this case and I, like the majority, take no
position on its appropriate resolution.”).
2.

DISCUSSION
It is in that very analytical gap the Court now finds itself. Daniels

argues that the mandatory Guidelines under which he was sentenced are
invalid, based on the mandatory-advisory contrast set up in Beckles and
reasoning he borrows from the now-abrogated United States v. Hurlburt,
835 F.3d 715, 719–25 (7th Cir. 2016) (en banc), in which the Seventh Circuit
held that the advisory Guidelines were void for vagueness. (Docket #19 at
3). In Daniels’ view, the mandatory Guidelines “‘were the practical
equivalent of a statute,’” and therefore can be subject to vagueness
challenges. Id. at 7 (quoting Hawkins v. United States, 706 F.3d 820, 822 (7th
Cir. 2003)). Indeed, the government argued in Beckles itself that the
mandatory Guidelines were problematic because they too strongly
cabined the sentencing court’s discretion. Id.; but see Krieger v. United
States, 842 F.3d 490, 499 (7th Cir. 2016) (a court is not bound to accept a
government concession on a point of law).
In a recent case raising precisely the same claim, the government
argued that since Beckles did not decide whether the mandatory
Guidelines are open to vagueness challenges, the Court must look to preexisting authority from the Seventh Circuit—specifically, United States v.
Tichenor, 683 F.3d 358 (7th Cir. 2012), and United States v. Brierton, 165 F.3d
1133 (7th Cir. 1999), which held that neither the advisory nor the
mandatory Guidelines were subject to vagueness challenges. See Cross v.
United States, Case No. 15–CV–1338–JPS, 2017 WL 2345592, at *3 (E.D. Wis.

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May 30, 2017).1 As explained in Cross, the government’s view is that the
same reasons for upholding advisory Guidelines against vagueness
challenges apply equally to a mandatory Guideline. In particular, both
types of Guidelines permit judicial discretion to depart in appropriate
circumstances, even if departure under the mandatory Guidelines was
more circumscribed. See (Docket #21 at 2).
Both parties’ positions on Beckles have some appeal. Cross, 2017 WL
2345592, at *3. As in Cross, here the Court must leave to the Court of
Appeals the task of harmonizing the morass of relevant precedent. On the
present record and the state of the law, the Court finds that Hurlburt has
been abrogated on the very issues upon which it abrogated Tichenor and
Brierton. As a result, those prior cases have been revived, and they require
dismissal of Daniels’ claim.2
For the benefit of the parties and the completeness of the record,
the Court will repeat here much of its discussion of these cases in Cross.
First, in Brierton, the Court of Appeals rejected a due-process vagueness
The government’s presentation on this point in this case is less welldeveloped than in Cross. Nevertheless, because Daniels addressed the interaction
of Brierton, Tichenor, and Hurlburt in his post-Beckles briefing, the Court is on
solid ground in relying on the conclusions drawn in Cross to dispose of the
materially identical claim Daniels raises here.
1

As an aside, the Court notes that the government at various points
suggests that Daniels’ motion should be denied because his sentence would fall
within the applicable Guidelines range even if his career-offender enhancement
was removed. See (Docket #18 at 8–9). The government ignores Molina-Martinez
v. United States, 136 S. Ct. 1338, 1345 (2016), which held that “[w]hen a defendant
is sentenced under an incorrect Guidelines range—whether or not the
defendant’s ultimate sentence falls within the correct range—the error itself can,
and most often will, be sufficient to show a reasonable probability of a different
outcome absent the error.” Nevertheless, the Court need not decide whether
Daniels benefits from this rule, since his motion falters on other grounds, as
explained below.
2

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challenge to the mandatory Guidelines. Brierton, 165 F.3d at 1138–39. The
court concluded that the Guidelines are not created to give notice of
proscribed conduct to citizens at large but are instead “‘directives to
judges for their guidance in sentencing convicted criminals.’” Id. (quoting
United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990)). Because they
constrain only the discretion of the sentencing judge, the court found, “the
Guidelines are not susceptible to attack under the vagueness doctrine.”
Id.; accord United States v. Idowu, 520 F.3d 790, 795–96 (7th Cir. 2009).
Next, in Tichenor, the Seventh Circuit extended Brierton to preclude
a vagueness attack on the post-Booker, advisory Guidelines. Tichenor, 683
F.3d at 364. Notably, the court in Tichenor was unpersuaded by the
defendant’s attempt to analogize the Guidelines to statutes, holding that
although the Guidelines influence the sentencing court, “[t]he sentencing
judge’s authority to exercise discretion distinguishes the Guidelines from
criminal statutes in a significant and undeniable manner.” Id. at 365.
Moreover, the Court of Appeals, reviewing in Tichenor the career-offender
Guideline, found that “Brierton and Idowu did not rest on the specific
provisions at issue,” so the fact that they assessed other Guidelines
provisions was of no moment. Id. at 366. The Seventh Circuit found
nothing in the career offender Guideline that was “‘more problematic’
than the guidelines challenged in our prior cases.” Id.
Finally, there is Hurlburt, in which the Seventh Circuit overruled
Tichenor. Hurlburt, 835 F.3d at 725. The court noted that Tichenor rested on
two interrelated premises, both of which had been undermined by
intervening Supreme Court decisions. Id. at 722. First, Johnson eviscerated
Tichenor’s premise that the vagueness doctrine cannot apply to the
Guidelines because they only provide directives to judges in sentencing
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rather than defining illegal conduct. Id. Second, in Peugh, 133 S. Ct. at
2077–78, the Court held that the advisory Guidelines are subject to the
limitations imposed by the Constitution’s Ex Post Facto Clause. Thus, in
Peugh, the district court remained obliged to apply the Guidelines in effect
when the defendant committed his crime, not the harsher Guidelines in
effect when he was sentenced. Id. In Hurlburt, the Seventh Circuit found
that Peugh undermined Tichenor’s conclusion that the vagueness doctrine
does not affect the Guidelines because they are merely advisory. Hurlburt,
835 F.3d at 724.
The suggestion that Hurlburt’s overruling of Tichenor survived
Beckles certainly has some persuasive force. As to Tichenor’s first premise,
Beckles appears to have affirmed the view expressed in Johnson that both
laws that define criminal offenses and those that fix permissible sentences
can be void for vagueness. Beckles, 137 S. Ct. at 892. Assuming this is true,
Beckles affirms the Seventh Circuit’s view in Hurlburt on this point.
Tichenor’s second premise—that the Guidelines are not statute-like
enough to be attacked as vague—is likewise debatable. Booker had harsh
words for the mandatory Guidelines, saying that “we have consistently
held that the Guidelines have the force and effect of laws.” Booker, 543 U.S.
at 234. The Court explained that
[a]t first glance, one might believe that the ability of a district
judge to depart from the Guidelines means that she is bound
only by the statutory maximum. Were this the case, there
would be no Apprendi problem. Importantly, however,
departures are not available in every case, and in fact are
unavailable in most. In most cases, as a matter of law, the
Commission will have adequately taken all relevant factors
into account, and no departure will be legally permissible. In
those instances, the judge is bound to impose a sentence
within the Guidelines range.
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Id. This concern was echoed in Peugh, where the majority opined that even
post-Booker, the Guidelines anchor the federal sentencing scheme and
“remain a meaningful benchmark through the process of appellate
review.” Peugh, 133 S. Ct. at 2083. Indeed, even the advisory Guidelines
require a justification for the sentencing court’s departure therefrom. Id.;
see also Hawkins, 706 F.3d at 822 (departures from mandatory Guidelines
“were permitted on specified grounds, but in that respect the guidelines
were no different from statutes, which often specify exceptions”).
But Beckles seemed to walk back this view, returning to the
fundamental notion expressed in Brierton and Tichenor that merely
cabining a sentencing judge’s discretion does not give rise to vagueness
concerns. The Court relied heavily on the idea that the advisory
Guidelines “merely guide the district court’s discretion,” and a “system of
guided discretion” is not amenable to a vagueness challenge. Beckles, 137
S. Ct. at 894. Further, the Court distinguished Peugh, stating that while the
unique features of the Guidelines rendered them immune from vagueness
scrutiny, cases like Peugh provide that other constitutional challenges are
permissible because those inquiries are “‘analytically distinct.’” Id. at 895
(quoting Peugh, 133 S. Ct. at 2088). Thus, this premise of Tichenor and
Brierton appears to have survived—and even been reinforced by—Beckles.
Against this backdrop, the Court is obliged to conclude that it is
bound not by Hurlburt but by the intervening authority of Beckles. If the
Seventh Circuit can better thread the needle through the analytical
minefield left in the wake of these cases, it is certainly welcome to do so.
This Court cannot undertake that task, since it is first and foremost bound
to follow the law given to it by higher courts. Because the Court cannot
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conclude with certainty that Hurlburt’s abrogation of Tichenor has
continuing force after Beckles, the Court is constrained to follow Beckles,
Tichenor, and Brierton, which point ineluctably to the conclusion that even
mandatory Guidelines are not amenable to vagueness challenge. Colby v.
J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987) (in order to depart from
appellate precedent, the district court must be “powerfully convinced”
that the higher court would overrule its previous decision “at the first
available opportunity”); Olson v. Paine, Weber, Jackson & Curtis, Inc., 806
F.2d 731, 734 (7th Cir. 1986) (lower courts shall not go against binding
precedent unless a subsequent decision makes it “almost certain” that the
higher court would reverse its previous position “if given a chance to do
so”); see also Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,
484 (1989) (“If a precedent of [the Supreme Court] has direct application in
a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly
controls, leaving to [the Supreme] Court the prerogative of overruling its
own decisions.”).3

The Court notes that several district courts around the country have
already issued decisions on this issue, though none within this Circuit. For
instance, in United States v. Tunstall, Case No. 3:00-cr-050, 2017 WL 1881458, at *6
(S.D. Ohio May 9, 2017), the district court found that the mandatory Guidelines
are sufficiently statute-like to implicate the due-process vagueness concerns not
applicable to the advisory Guidelines. By contrast, in Cottman v. United States,
Case No. 8:16–cv–1575–T–24TBM, 2017 WL 1683661, at *2 (M.D. Fla. May 3,
2017), the court found that, much like this case, existing Eleventh Circuit
precedent dictated that the mandatory and advisory Guidelines are equally
insulated from vagueness attacks. See also In re Griffin, 823 F.3d 1350, 1354 (11th
Cir. 2016); United States v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015).
3

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3.

CONCLUSION
The Court is bound to follow controlling Supreme Court and

Seventh Circuit precedent in this case, and that authority dictates that
vagueness challenges may not be raised against the pre-Booker, mandatory
Guidelines.4 However, because this question is close enough to be the
subject of vigorous debate, the Court will grant Daniels a certificate of
appealability in this case. See Rule 11(a) of the Rules Governing Section
2255 Cases; Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (to obtain a
certificate of appealability, the movant must make a “substantial showing
of the denial of a constitutional right” by establishing that “reasonable
jurists could debate whether (or, for that matter, agree that) the petition
Because of the Court’s view of Beckles, it need not reach the parties’
dispute concerning whether Johnson’s holding regarding the ACCA can be
retroactively applied to the Guidelines. The government says that the Court is
without jurisdiction to consider the merits of Daniels’ claim in the absence of a
retroactivity finding. See (Docket #18 at 4–5). True enough, Section 2255(f)
requires dismissal of claims in second or successive petitions based on rules not
made retroactive by the Supreme Court. See 28 U.S.C. §§ 2255(f), 2244(b); Ashley
v. United States, 266 F.3d 671, 674–75 (7th Cir. 2001). But, like cases dealing with
the potential retroactivity of Apprendi v. New Jersey, 530 U.S. 466 (2000), here the
Court finds that it need not decide the retroactivity question since, even if the
proposed rule is retroactive, it fails on its merits in light of Beckles, see Brannigan
v. United States, 249 F.3d 584, 587 (7th Cir. 2001); Hernandez v. United States, 226
F.3d 839, 841 (7th Cir. 2000) (dismissing a Section 2255 motion without prejudice
to await a favorable retroactivity ruling from the Supreme Court “is not required.
. .if there are alternate grounds for resolving the claim once and for all at the time
it is presented”).
That said, the Court observes that several recent decisions from other
district courts have concluded that extending Johnson to the mandatory
Guidelines would constitute a new rule that must first be recognized in the
Supreme Court. See Mitchell v. United States, Case No. 3:00-CR-00014, 2017 WL
2275092, at *5 (W.D. Va. May 24, 2017) (collecting cases); see also Griffin, 823 F.3d
at 1355 (observing that Johnson’s holding with respect to the ACCA could not be
automatically retroactively applied to cases involving Guidelines challenges).
Because existing Seventh Circuit precedent provides a more direct path to the
disposition of this case, the Court does not decide the retroactivity question here.
4

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should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further”).
Accordingly,
IT IS ORDERED that Petitioner’s amended motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Docket #9) be
and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that a certificate of appealability be
and the same is hereby GRANTED.
The Clerk of the Court is directed to enter judgment accordingly
Dated at Milwaukee, Wisconsin, this 16th day of June, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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