Brown v. United States of America
Filing
8
ORDER signed by Judge J.P. Stadtmueller on 8/21/2017: LIFTING the stay in this matter; DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255; DISMISSING action with prejudice; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Robert R. Brown at USP Lee)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT R. BROWN,
v.
Petitioner,
Case No. 16-CV-899-JPS
Criminal Case No. 11-CR-52-7-JPS
UNITED STATES OF AMERICA,
Respondent.
ORDER
On July 11, 2016, Petitioner Robert Brown (“Brown”) filed a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence in
light of Johnson v. United States, 135 S. Ct. 2551 (2015). (Docket #1). In
August 2016, the Court determined that the matter should be stayed
pending resolution of several relevant appeals before the Seventh Circuit
relating to the effect of Johnson on the petition. (Docket #4). 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). Now that Beckles has been
decided, for the reasons stated below, the Court must lift the stay in this
matter and deny Brown’s motion.
In 2012, Brown was convicted of armed bank robbery and
brandishing a firearm during a crime of violence. At Brown’s sentencing
on March 15, 2012, the Court imposed the “career offender” enhancement
under the U.S. Sentencing Guidelines, which provides 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 either a crime of violence or
a controlled substance offense; and (3) the defendant has at least two prior
felony convictions for either a crime of violence or a controlled substance
offense. Id. § 4B1.1(a). At the time Brown 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
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
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 Brown, 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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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 2016, Brown 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
(7th Cir. 2016) (observing that cases analyzing “violent felony” under the
ACCA and “crime of violence” under the Guidelines are interchangeable).
This, in turn, would mean that he no longer has enough predicate
convictions for “crimes of violence” to warrant the career-offender
enhancement, since at least one predicate qualified as such only under the
Guidelines’ residual clause. (Docket #1 at 1, 4).
However, the Supreme Court’s intervening decision in Beckles
forecloses Brown’s argument. Beckles held that the residual clause found in
the career-offender 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
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the statutory range.” Id. Because judicial discretion is part and parcel of
the Guidelines, the constitutional concerns that animated the Johnson
Court—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.
The only argument advanced in Brown’s motion was that the
residual clause of the Guidelines is unconstitutionally vague in the same
fashion as the ACCA’s residual clause. In light of Beckles, this contention is
wholly without merit. The Court must, therefore, deny Brown’s motion
and dismiss this action.
Under Rule 11(a) of the Rules Governing Section 2255 Cases, “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Brown 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 should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted). Because Beckles inescapably requires
dismissal of Brown’s claim, as explained above, the Court cannot fairly
conclude that reasonable jurists would debate whether his motion should
be decided differently; as a consequence, the Court must deny a certificate
of appealability to him.
Finally, the Court closes with some information about the actions
that Brown may take if he wishes to challenge the Court’s resolution of
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this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within thirty days
of the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the 30-day deadline.
See id. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure
59(e) must be filed within 28 days of the entry of judgment. The Court
cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable
time, generally no more than one year after the entry of the judgment. The
Court cannot extend this deadline. Id. A party is expected to closely
review all applicable rules and determine what, if any, further action is
appropriate in a case.
Accordingly,
IT IS ORDERED that the stay in this matter be and the same is
hereby LIFTED;
IT IS FURTHER ORDERED that 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 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 DENIED.
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The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 21st day of August, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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