Mitchell v. USA
Filing
16
Transmission of Notice of Appeal, Opinion and Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 14 Notice of Appeal, (Attachments: # 1 Opinion and Order, # 2 Judgment, # 3 Docket Sheet) (lak)
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
RAYDALE R. MITCHELL,
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
U.S.C.A. - '?'th Clreult
RECEIVED
14-cv-473-jdp OFC 1 22016 #5
11-cr-83-jdJ:GINO J. AGNELLO
CLERK
MOTION FOR CERTIFICATE OF APPEALABILITY
Comes Now, Raydale R. Mitchell, petitioner pro se, files this
instant Motion for Certificate of Appealability in light of the
recent denial of his 28 u.s.c. § 2255 by the United States District
Court For The Western District of Wisconsin, on October 31, 2016.
Raydale R. Mitchell seeks a certificate of appealability from the
court of appeals under Federal Rule of Appellate Procedure 22.
SUMMARY
Petitioner Raydale R. Mitchell, previously filed a pro se
motion under 28 u.s.c. § 2255, seeking to vacate his conviction
under the Supreme Court ruling in Johnson v. United States, 135
s.ct. 2551
(2015).
Additionally, petitioner would also include the more recent
Supreme Court ruling in Mathis v. United states, No. 15-6092.
Petitioner contends that in light of Johnson and Mathis his
prior convictions for Illinois Armed Robbery, 720 ILCS 5/1 8-2 (a )(b),
are no longer crimes of violence.
In Johnson v. United States, the court held:
The Supreme Court, Justice Scalia, held that imposing an
increased sentence under the residual clause of the Armed Career
Criminal Act (ACCA) violates the Constitution's guarantee of due
process, overruling James v. U.S., 550 U.S. 92, 127 s.ct. 1586,
167 L.Ed.2d 532, and Sykes v. u.s., - u.s. -
, 131 s.ct. 2267,
180 L.Ed.2d 60 and abrogating U.S. v. White, 571 F.3d 365, U.S.
v. Daye, 571 F.3d 225, and u.s. v. Johnson, 616 F.3d 85.
The Supreme Court held:
The government violates the Due Process Clause by taking
away someone's life, liberty, or property under a criminal law
so vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary
enforcement. U.S.C.A. Const Amend. 5.
The government is not in the position to request that this
court deny petitioner a certificate of appealability because the
government sentenced petitioner under the ACCA's "residual clause"
and these factors alone violated the Cons ti tut ion's guarantee of
due process. See Johnson v. United States, 135 S.Ct. 2551
(2015).
No procedural bar can eliminate a due process claim.
In Mathis v. United States, No. 15-6092, the Court held:
Mathis v. United States, No. 15-6092, S.Ct. (June 23, 2016)
(holding that the "categorical approach" requires that a sentencing
court look only to the elements of the statute of conviction, and
therefore that courts may not decide whether to count a conviction
by determining which of multiple alternative "means of commission"
a defendant used to commit an offense, even if those means are
explicitly listed in the statute of conviction). In his concurring
2
opinion, Justice Kennedy specifically discussed his concerns
regarding the operation of the
categorical
approach, and
suggested that Congress could amend the statutory provisions
to address some of the ongoing concerns. see id. at *13 (Kennedy
concurrence).
(End of Report Excerpt)
Additionally, in Supreme Court case Mathis v. United States,
s.ct. No. 15-6092, the Supreme Court held that if a state statute
provides alternative means for committing an element of a crime,
it does not qualify defendant to sentencing enhancement as a
violent of fender under ACCA.
PROCEDURAL HISTORY
Petitioner Raydale R. Mitchell, in 2012, appearing before
District Judge Barbara Crabb, For the Western District of
Wisconsin, Mitchell pleaded guilty to distributing heroin in
violation of 21 u.s.c. § 841(a)(1). Judge Crabb sentenced Mitchell
to 168 months of imprisonment.
According to the presentence report, Mitchell had two prior
convictions for crimes of violence, Armed Robbery in the Circuit
Court for Cook County Illinois (88 CR1639602); and Aggravated
Battery in the Circuit Court for Dane Coanty, Wisconsin (case No.
03CF909). This made Mitchell a Career Offender under United States
Sentencing Guidelines§ 4B1.1(a) and (b)(3). His offense level was
29, after three levels had been deducted for acceptance of
responsibility, and his guideline sentencing range was 151 to
188 months. Alternatively, Mitchell had an identical offense level
3
of 29 based on the amount of heroin involved in the transactions,
which placed him at level 30,-U.S.S.G. § 2D1.1 (a)(S) and (c)(S),
minus the three-level decrease for acceptance of responsibility,
plus two levels for his role as an organizer, u.s.s.G. § 3B1.1 (c).
According to the presentence investigation report's statement
that the total amount of distributed heroin was 893.64 grams (795
grams estimated by the informants working with the government,
along with only 98.64 grams actually produced and bought in the
controlled buy).
Mitchell has filed a motion for postconviction relief under
28 u.s.c. § 2255, alleging that he was denied the effective
assistance of counsel in his criminal proceedings. He followed
with a motion to amend his petition to include an argument that
his sentence under the career-offender sentencing guideline is
unconstitutional under Johnson v. United States, 135 S.Ct. 2551
(2015).
In a recent case, the full panel of the court of Appeals for
the Seventh Circuit concluded that the "residual clause" of
guideline§ 4B1.2(a) was unconstitutionally vague. United States
v. Hurlburt, No. 15-1686, 2016 WL 4506717 at *7 (7th Cir. Aug.
29, 2016)
2551
(en bane)
(citing Johnson v. United States, 135 S.Ct.
(2015)).
Mitchell contends that his prior conviction for Illinois
Armed Robbery under 720 ILCS 5/18-2(a)(b) are no longer crimes of
violence and no
10~1ger
survives the categorical approach.
4
JURISDICTION
In 2012, appearing before United States District Judge Barbara
Crabb, For The Western District of Wisconsin, Mitchell was
sentenced to 168 months of imprisonment. Se'°' United States v.
Mitchell, No. 11-cr-83-jdp (W.D. Wis. June 1, 2012).
Raydale R. Mitchell is currently in custody at the United
States Penitentiary in Marion, Illinois.
CAREER OFFENDER
The presentence report concluded that Mitchell qualified as
a Career Offender as he had two or more prior convictions for a
crime of violence.
As relevant here,§ 4B1.2(a)(2) defines ''crime of violence'' as
including "any offense under federal or state law, punishable by
imprisonment for a term·exceeding one year, that ••• (2) is burglary
of a dwelling ••• or otherwise involves conduct that presents a
serious potential risk of injury to another."
First of all, let's address the issue that the District
Court's analysis guides them to the conclusion that even if
Mitchell was not designated as a Career Offender, he would have
received the same se.:itence using the drug quantity and organizer
guidelines. This is incorrect. The court do·2s not accurately
reflect the fact that if Mitchell sheds the career offender label
he would fully be eligible for the two-level reduction commonly
known as "Drugs Minus Two." This would reduce his guidelines
range by two level to a 27, significantly lower than his previous
guideline range of 151-188 months. Mitchell would have received a
sentence not only lo;;er than the 168 months he received, but also
5
lower than the 151-188 guideline range he was deemed by the
presentence report. So by this fact alone, the district court's
analysis that Mitchell would have received the same sentence
without the career offender enhancement, falls short on the
record and is incorrect.
The District Court's Assumption That Mitchell's Prior Conviction
For Armed Robbery Is Still A Violent Felony Under The Force Clause
Is A Question Of Prejudice:
Even if the Court entertains the Government's contention that
Mr. Mitchell's motion is "ultimately and exclusively reliant'' on
Johnson v. United States, 599 U.S.
(2010)
(Johnson I), lacks merit.
Whether a prior conviction that has been invalidated by Johnson II's
holding striking the residual clause still qualifies under the
force clause is a question of prejudice that must be answered
under current law, as required by the Supreme Court's holdino::r in
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). See Mosby v.
Senkowski, 470 F.3d 515, 524 (2nd Cir. 2006)
("the Supreme Court
has held that current law should be applied retroactively for
purposes of determining whether a party has demonstrated
[Strickland] prejudice").
As numerous courts have found, the availability of the residual
clause to support a career off ender sentence establishes a due
process violation sufficient to trigger an inquiry into whether
the error was prejudicial. These decisions include:
*
In re Adams, 825 F.3d 1283, 1286 (11th Cir. 2016) (granting
p•etition to file second or successive petition under 28
u.s.c. § 2255(h), and holding that, although Florida
burglary statute's construction implicated Descamps v.
United States, 133 s.ct. 2276 (2013), ''it is not an
independent claim that is itself subject to the gatekeeping requirements");
6
--
!
*In re Chance, 831 F.3d 1335, 1339-41 (11th Cir. 2016)
(disagreeing with In Re Moore, 830 F.3d 1268 (11th Cir.
2016), and holding that the defendant need not prove
he was sentenced using the residual clause as a precondition to relief);
* United States v. Christian, -- Fed. Appx -- , 2016 WL
4933037 (9th Cir. Sept. 16, 2016) (accepting Government's
concession that, in sentencing defendant, the district
court "relied at least in part on the unconstitutionally
vague residual clause of the ACCA's 'violent felony'
definition" an:'i vacating sentence);
* United States v. Winston,
F. Supp.3d
, 2016 WL
4940211 at *2-*4 (W.D. Va.2016) (findingit would have
b':ien futile for defendant to bring a petition prior to
Johnson II, because the Government could and would have
used the residual clause as an escape hatch, and rejecting
Government's claim that Winston's petition "relied upon"
Johnson I);
*United States v. Ladwig,~ F. Supp.3d
, 2016 WL
3619640, at *3-*5 (E.D. Wash. June 28, 2016) (finding
that both precedent and public safety policy interests
in avoiding potenti.ally inconsistent decisions caused
by the application of old law weighed in favor of
applying current law);
* United States v. Harris, 2016 WL 4539183, at *9 (M.D. Penn.
2016) (rejecting Government's argument that defendant's
challenge to prior conviction "is untimely or that
Defendant's motion is really an untimely Descamps claim");
*United States v. Diaz, 2016 WL 4524785, at *5 (W.D.N.Y.
Aug. 30, 2016) (concurring with reasoning of Ladwig);
* United States v. Navarro,
Wash. 2016) (finding that
incentive nor a mechanism
until Johnson II declared
unconstitutional);
2016 WL 125830, at *3 (E.D.
defendant had neither an
to challenge his ACCA sentence
the residual clause
*United States v. Gomez, 2016 WL 1254014, at *3 (E.D. Wash.
March 10, 2016) (§ 2255 motion properly filed under
Johnson II was not rendered untimely because defendant's
motion cited Descamps in support).
As the Eleventh Circuit observed in Chance, the required
showing that a habeas petitioner must make is "simply that the
[ACCAJ may no longer authorize his sentence as that statute
7
stands after Johnson -
not proof of what the judge said or thought
at a decades-old sentencing." 831 F.3d at 1341. As the district
court cogently noted in Ladwig, the inherently complex nature of
Johnson II claims shows the wisdom of this approach:
Attempting to recreate the legal landscape at the time
of a defendant's conviction is difficult enough on its
own. But in the context of Johnson claims, the inquiry
is made more difficult by the complicated nature of the
legal issues involved. This area of the law has accurately
been described as a "hopeless tangle," ••• and has stymied
law clerks and judges alike in a morass of inconsistent
case law. An inquiry that requires judges to ignore
intervening decisions that, to some degree, clear the
mire of decisional law seems to beg courts to reach
inconsistent results. Current case law has clarified the
requisite analysis and applying that law should provide
greater uniformity, helping to ensure that like defendants
receive like relief.
2016 WL 3619640, at *5 (internal citations omitted).
In sum, the Government's effort to assert a defense is
contrary to Supreme Court precedent and misunderstands the showing
a habeas petitioner must make in order to obtain relief under
28
u.s.c.
§ 2255. In the context of Johnson II claims, a showing
that the sentence could have been predicated on the unconstitutional
residual clause is sufficient to trigger relief. Any further
inquiry into the validity of the sentence under the remaining valid
provisions of the career offender simply goes to prejudice. Mr.
Mitchell's claim properly relies on and is timely under Johnson II.
Until that decision, any challenge he may have brought to the
classification of his offense under the force clause would have
been futile because the Government could have invoked the residual
clause as an escape hatch.
8
I
1
! 1
I
In accordance with the authority in Fed. )<. Civ. Proc. 7
and 8, Mr. Mitchell respectfully notes the additional authority
of Doriety v. United States, Case No. C16-0924-JCC (W.D. Wash.
Nov. 10, 2016) in support of his Motion to Vacate or Correct
Sentence Pursuant to 28 u.s.c. § 2255.
Mr. Doriety was designated a career offender after he
pleaded guilty to unarmed bank robbery, and sentenced to a term
of 100 months' imprisonment. His predicate offenses were also
for unarmed federal bank robbery. In pertinent part, the district
court rejected the Government's claims that Mr. Doriety's
arguments were based on Johnson v. United States, 559 U.S. 140
(2010)
(''Johnson I''), and Descamps v. United states, 133 s.ct.
2276 (2013), and accordingly rejected the Government's contention
that his challenge to his career offender sentence, which was
filed within one year of the decision in Johnson v. United States,
135 S.Ct. 2551
( 2015), was time-barred. Order at 8-11. The Court
further found that federal bank robbery is broader than generic.
robbery, and therefore does not constitute a "crime of violence"
under u.s.s.G. § 4B1.2.
ARGUMENT
The definition of "crime of violence" can be found in
USSG § 4B1.2, which states:
(a)
The term "crime of violence" means 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
9
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents
a serious potential risk of injury to
another.
The application notes further provide: "For purposes of this
guideline •••
'Crime of violence' includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, robbery,
arson, extortion, extortionate extension of credit, and burglary
of a dwelling.'' USSG § 4B1.2, cmt. 1 (2015).
Mitchell's present challenge is based on the final clause
of USSG § 4B1.2(a)(2), which pertains to an offense that
"otherwise involves conduct that presents a serious potential
risk of injury to another.'' This clause is identical to the
so-called "residual clause" of the Armed Career Criminal Act
(ACCA), 18 u.s.c. § 924(e)(2)(B)(ii). The United States Supreme
Court recently declared the ACCA residual clause to be
unconstitutionally vague. See Johnson v. United States, 135
S.Ct. 2551, 2557 (2015) (''Johnson II''). The Supreme Court
subsequently held that Johnson II applies retroactively to
defendants whose sentences were enhanced under the ACCA residual
clause. Welch v. United States, 136 s.ct. 1257, 1265 (2016).
The Supreme Court has not yet determined whether Johnson and
Welch apply equally to off enders who were sentenced under USSG
§ 4B1.2(a)(2). However, this Court recently answered that
question in United States v. Hurlburt, No. 15-1686, 2016, (7th
Cir. 2016).
10
In response to the district court's denial and argument
that (1) Mitchell's sentence was not based on§ 4B1.2(a)(2)'s
residual clause and thus Mitchell cannot establish constitutional
error, and (2) Mitchell cannot show harm because his prior
conviction for Armed Robbery still were qualifying predicate
crimes irrespective of the residual clause.
The Government mischaracterizes the nature of Mitchell's
claim. He argues that it was "constitutional error for·the
residual clause to have been made available as the legal basis
for holding his instant and prior convictions to be crimes of
violence." The inclusion of Johnson I and Descamps are relevant
to both the harmless error analysis and whether it was more likely
than not the Court sentenced Mitchell under the residual clause,
but do not form the basis for his § 2255 motion.
Because Johnson II and Welch set forth a new, retroactive
rule, and because this Court finds it applicable to USSG § 4B1.2,
Mitchell's motion is timely and has merit.
Mitchell admits that he neither contemporaneously objected,
nor argued on direct appeal, that the Guidelines residual clause
was unconstitutional, but maintains that he can show cause and
prejudice. But the court should note, however, that in Johnson II,
the petitioner did not make a vagueness argument at the Supreme
Court, and it was the Court that asked for supplemental briefing
and argument on vagueness. See United States v. Johnson, 135
s.ct. 2551
(2015).
11
RELIANCE ON THE RESIDUAL CLAUSE
Mitchell now seeks to vacate, set aside, or correct his
sentence under 28
u.s.c.
§ 2255, arguing that it was unconstitutional
under Johnson II. If his conviction for Illinois Armed Robbery,
Ill. Crim Code, Ch. 38 § 18-1, 18-2(a)(b) were not a crime of
violence, he would not have been classified as a career offender,
and his sentence would have been much lower.
This court should note that the record does NOT show that
U.S. District Judge Barbara Crabb sentenced Mitchell under the
so-called ''elements clause.''
The record is silent as to whether the Court applied the
USSG residual clause in calculating Mitchell's base offense level.
In such a context, Mitchell maintains that the Court
should
apply the harmless error analysis from Brecht v. Abrahamson,
507
u.s.
619 (1993) and o'Neal v. McAninch, 513
u.s.
432 (1995).
Under Brecht/O'Neal, if a judge has "grave doubt" about whether
an error was harmless, the judge must treat the error as if it
was harmful. See O'Neal, 513 U.S. at 438, 442. In other words,
if the Court applied the Brecht/O'Neal standard, the "tie"
would go to Mitchell.
However, application of this standard necessarily assumes
that an error occurred, which has not yet been established, See
Simmons v. Blodgett, 110 F.3d 39, 41-42 (9th Cir. 1997) ("Finding
facts to determine if there is a constitutional error is a wholly
different thing from deciding whether or not an error, once found,
affected the verdict.") To reach a question of harmless error,
12
-- !
the petitioner must first establish error by a preponderance of
the evidence. See Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938);
Simmons, 110 F.3d at 42. Like the Simmons court, this Court
should decline to "extend O'Neal to the question of whether
constitutional error has in fact occurred." 110 F.3d at 42.
Applying the proper standard here, Mitchell must show by a
preponderance of the evidence that he was sentenced under the
residual clause, as opposed to another provision of§ 4B1.2.
Armed Robbery is not one of the enumerated offenses in§ 4B1.2(a)(2).
Accordingly, the Court must have applied the residual clause unless
it concluded that Armed Robbery, Ill. Crim. Code, Ch. 18 "has as an
element the use, attempted use, ot threatened use of physical
force against the person of another'' under§ 4B1.2(a)(1), the socalled ''elements clause.''
The Court asserts that the applicability of the elements
clause is not dispositive, because armed robbery is an enumerated
crime of violence in Comment One of the application notes.
The Government views Comment One as the "fourth" standalone
provision of the Guidelines. This position is untenable. As the
Seventh Circuit astutely observed, "the application notes are
interpretations of, not additions to, the Guidelines themselves;
an application note has no independent force." United States v.
Rollins,~
F.3d
~'
2016 WL 4587028 at *4 (7th Cir. Aug. 29, 2016)
(emphasis in original); see also Stinson v. United States, 508
U.S. 36, 44 (1993)
("[W]e think the Government is correct in
suggesting that the elements clause is inherently inconsistent
13
wi thoan enumerated list of crimes, given that such enumeration
would render an elements inquiry useless. Accord Rollin, 2016
WL 4587028 at *4 ("[T]he Sentencing Commission has interpreted
the residual clause in§ 4B1.2(a)(2) to include the specific
crimes listed in application note 1.") Accordingly, in the absence
of the residual clause, Comment One is toothless. See Dietrick,
2016 WL 4399589 at *4 ("[T]he Court should find that the commentary
cited by the court exists for the purpose of interpreting the nowinvalidated residual clause.")
In light of Johnson II, ''because the residual clause in
§ 4B1.2(a)(2) is unconstitutional, the application note's list
of qualifying crimes is inoperable and cannot be the basis for
applying the career-offender enhancement." Rollins, 2016 WL
4587028 at *4.
The court acknowledges that Comment One repeats the enumerated
crimes from§ 4B1.2(a)(2). The Court does not read this as
inconsistent with Comment One's applicability to the residual
clause. Rather, the Court reads this repetition as clarifying what
conduct constitutes a ''serious potential risk of physical injury
to another."
Turning back to the language of the Guidelines, the Court
must consider whether it is more likely that Mitchell was
sentenced under the elements clause or the residual clause. The
Court calculated Mitchell's offense level based on its acceptance
of the parties' stipulation that he committed a qualifying crime
of violence. At the time the stipulation was made, the residual
14
clause was alive and well, and came with an explicit instruction
that it included armed robbery. Taking a common sense approach,
it appears quite likely that the residual clause informed the
parties' stipulation and the Court's approval thereof.
This is especially likely inlight of the myriad problems
with applying the elements clause, When considering whether a
defendant's prior or current convictions counts as one of the
ACCA's enumerated offenses, courts must employ the categorical
approach. See Descamps, 133 s.ct. at 2283. Although binding
precedent has not established that courts do the same when
evaluating the elements clause, the Court finds such an approach
prudent and follows the Fourth Circuit's lead in doing so. See
United states v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)
(applying the Descamps approach to assess whether North Carolina
common law robbery meets the elements clause definition of a
"violent felony" under the ACCA). To qualify as a categorical
match with the elements clause, armed robbery must have as an
element "the use, attempted use, or threatened use of physical
force against the person of another." See USSG § 4B1.2(a)(1).
However, it is not enough that the armed robbery simply contain
the use or threat of force as an element. Rather, a court must
focus on the minimum culpable conduct in which the Government
would seek to enforce the law. Moncrief v. Holder, 133 S.Ct.
1678, 1684 (2013).
Although Descamps had not been decided at the time of Mitchell's
sentencing, as the Government pointed out, Descamps was "in the
end, just applying Taylor v. United. States, 495 U.S. 575 (1990)''.
15
Taylor required a categorical approach and was effective at the
time of sentencing. Furthermore, the Court will not ignore
Supreme Court precedent decided in the interim which "to some
degree, clear[s] the mire of decisional law ••• [and] provide[s]
greater uniformity." United States v.
Ladwig,~
F. Supp.3d
I
2016 WL 3619649 at *5 (E.D. Wash. June 28, 2016); see also
Murray v. United States, 2015 WL 7313882 (W.D. Wash. Nov 19, 2015)
(holding that a Johnson petitioner-originally sentenced in
1996~had
established prejudice since application of Descamps
made clear that he could not be sentenced under other provisions
of ACCA).
As an initial matter, the Court notes that at the time of
Mitchell's sentencing, it was established that the "use, attempted
use, or threatened use of physical force" must be intentional.
United States v. Narvaez-Gomez, 489 F.3d 970 976 (9th Cir. 2007);
United states v. Esparza-Herrera, 557 F.3d 1019, 1022 n.3 (9th
Cir. 2009). Additionally, the U.S. Supreme Court made clear that
"the phrase 'physical force' mean[ t] violent force-that is, force
capable of causing physical pain or injury to another person."
Johnson I, 559 U.S. at 140 (emphasis in original). Therefore, if
one may be convicted of armed robbery under Ill .• Crim. Code Ch. 18
without the intentional use, attempted use, or threatened use of
violent physical force against the person of another, then it is
not a crime of violence under the elements clause of§ 4B1.2. The
Court should conclude that armed robbery is not a crime of violence
under the elements clause for the following reasons.
16
ILLINOIS ARMED ROBBERY, Ill. Crim. Code, Ch. 38
(720 ILCS 5/18-1) (from Ch. 38, par. 18-1)
Sec. 18-1. Robbery; aggravated robbery.
(a) Robbery. A person commits robbery when he or she
knowingly takes property, except a motor vehicle covered by
Section 18-3 or 18-4, from the person or presence of another
by the use of force or by threatening the imminent use of
force.
(b) Aggravated robbery.
(1) A person commits aggravated robbery when he or
she violates subsection (a) while indicating verbally or
by his or her actions to the victim that he or she is
presently armed with a firearm or other dangerous weapon,
including a knife, club, ax, or bludgeon. This offense
shall be applicable even though it is later determined
that he or she had no firearm or other dangerous weapon,
including a knife, club, ax, or bludgeon, in his or her
possession when he or she committed the robbery.
(2) A person commits aggravated robbery when he or
she knowingly takes property from the person or presence
of another by delivering (by injection, inhalation,
ingestion, transfer of possession, or any other means) to
the victim, without his or her consent, or by threat or
deception, and for other than medical purposes, any
controlled substance.
(c) Sentence.
Robbery is a Class 2 felony, unless the victim is 60 years
of age or over or is a person with a physical disability, or
the robbery is committed in a school, day care center, day
care home, group day care home, or part day child care facility,
or place of worship, in which case robbery is a Class 1 felony.
Aggravated robbery is a Class 1 felony.
(d) Regarding penalties prescribed in subsection (c) for
violations committed in a day care center, day care home, group
day care home, or part day child care facility, the time of day,
time of year, and whether children under 18 years of age were
present in the day care center, day care home, group day care
home, or part day child care facility are irrelevant. (Source:
P.A. 99-143, eff. 7-27-15.)
(720 ILCS 5/18-2) (from Ch. 38, par. 18-2)
Sec. 18-2. Armed robbery.
(a) A person commits armed robbery when he or she violates
Section 18-1; and
(1) he or she carries on or about his or her person or is
otherwise armed with a dangerous weapon other than a
firearm; or
(2) he or she carries on or about his or her person or is
otherwise armed with a firearm; or
(3) he or she, during the commission of the offense,
personally discharges a firearm; or
17
(4) he or she, during the commission of the offense,
personally discharges a firearm that proximately causes
great bodily harm, permanent disability, permanent
disfigurement, or death to another person.
(See full text, Exhibit B).
In Mathis v. United States, No. 15-6092, the Supreme Court
has held that a state statute that provides alternative means for
committing an element of a crime do not qualify defendant to
sentencing enhancement as a violent offender.
The Supreme Court held:
This case is resolved by this Court's precedents,
which have repeatedly held, and in no uncertain
terms, that a state crime cannot qualify as an
ACCA predicate if its elements are broader than
those of a listed generic offense. See
~'
Taylor, 495 u.s., at 602. The ''underlying brute
facts or means" by which the defendant commits
his crime, Richardson v. United states, 526 U.S.
813, 817, make no difference; even if the defendant's
conduct, in fact, fits within the definition of the
generic offense, the mismatch of elements saves him
from an ACCA sentence. ACCA requires a sentencing
judge to look only to "the elements of the [offense],
not to the facts of Uthe] defendant's conduct."
Taylor, 495 U.S. at 601.
This court can clearly see that the Illinois Armed Robbery
statute does in fact list alternative means of committing the
crime of armed robbery. If this court applies the categorical
approach to this statute, they would have to determine that it
is too broad, and simply cannot survive the categorical approach
and framework set for by the Supreme Court in Mathis and
Descamps.
18
Definition (a) could possibly fit within the force clause,
but definition (b) does not. Just because a person is carrying a
dangerous weapon on his or her person, does not cross the "force"
threshold of Johnson I, 2010. By this fact alone, the statute is
too broad on its face and does not survive the categorical approach.
See Mathis v. United States, No. 15-6092. The court focuses on
definition (a) of the statute and does not apply the categorical
approach as required by Mathis and Taylor.
Just because a person is armed, whether displayed or concealed,
this does not fit the "force clause", on a direct threat of
violence. Several courts, specifically the Ninth Circuit, have
rejected the notion that implicit in intimidation is a threat
of violent force. United States v. Parnell, 818 F.3d 974, 980 (9th
Cir. 2016).
("[An] uncommunicated willingness or readiness to
use [physical] force ••• is not the same as a threat to do so").
The court cited to cases "before" Mathis and did not apply the
framework set forth by the Supreme Court in Mathis. The fact
that Illinois armed robbery can be committed just by "carrying
a weapon," does not require force or any force at all, which
is required by Johnson I, (2010).
Finally, even if this Court were to accept that robbery is
an enumerated offense, armed robbery would still not qualify.
Under the categorical approach, the sentencing court looks only
to the elements of the prior or current offense and compares them
to the ''generic'' crime. Descamps, 133 s.ct. at 2283 (quoting
Taylor, 495 U.S. at 599). ''If the statute sweeps more broadly
19
than the generic crime, a conviction under that law cannot count
as a[] ••• predicate" crime of violence, "even if the defendant
actually committed the offense in its generic form." Id.
In sum, although the case law did not necessarily prevent
the Court from sentencing Micthell under the elements clause,
there was enough unfavorable case law at the time to draw doubt
as to the element clause's applicability. This fact, stacked
against the explicit clarity of Comment
the residual
clause~makes
One~which
interpreted
it more likely than not that Mitchell
was sentenced under the residual clause. Mitchell has shown by
a preponderance of the evidence that the Court relied on the
residual clause of USSG § 4B1.2(a)(2) in finding his current
and previous offenses were "crimes of violence" triggering the
career offender enhancements.
HARMLESS ERROR
Before this court can offer relief, Mitchell still bears the
burden of showing his unconstitutional sentence had a "substantial
and injurious'' effect on him. Mitchell argues he can show ''actual
prejudice."
The record does not show that District Court Judge Barbara
Crabb sentenced Mitchell under the elements clause, and since
Mitchell's prior conviction for Armed Robbery is not an enumerated
offense, it is more likely than not that Judge Crabb relied on the
residual clause to qualify Mitchell as a career offender.
In a recent decision by the Sixth Circuit Court of Appeals
in Ivey v. United States, No. 09-1203-JDT-egb, the district
20
court also argued that petitioner's prior convictions for
Aggravated Burglary were enumerated offenses, even when the record
did not indicate whether the district court relied on the
enumerated-offense clause or the residual clause. (As in this
case). The court concluded "because Ivey may no longer qualify
as an armed career criminal without the reliance on the residual
clause, he has made a prima facie showing that his proposed
claim relies on Johnson." (See Exhibit A).
Mitchell believes he has also made a prima facie showing
that he too should receive relief. The court cannot point to
any part of the record that would conclude that Mitchell was
sentenced under the elements clause. The court should note
that District Court Judge Crabb recused herself from this § 2255
litigation in this case.
CONCLUSION
This court should conclude that Mitchell's motion does
include Johnson and Mathis claims, and they are valid claims.
This court should also conclude that Mitchell's prior
conviction for Illinois Armed Robbery is too broad and does
not survive the categorical approach under Mathis.
Furthermore, because the record does not indicate whether
the district court relied on the elements-clause or the residual
clause, and because Mitchell may no longer qualify as a careeroffender without reliance on the residual clause, his sentence
should be vacated. His sentence is a violation of due process.
21
Respectfully Submitted,
E~~.~~m~
Reg. No. 07514-090
U.S. Penitentiary
P.O. Box 1000
Marion, IL 62959
21
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