Camacho, Freddie v. Ward, L.C.

Filing 4

ORDER granting 3 Motion to Supplement; denying 1 Petition for Writ of Habeas Corpus and dismissing this case. The clerk of court is directed to close this case. Signed by District Judge James D. Peterson on 9/12/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

FREDDIE CAMACHO,
Petitioner,
v.

OPINION & ORDER
15-cv-388-jdp

L.C. WARD,
Respondent.

Petitioner Freddie Camacho is in the custody of the federal Bureau of Prisons (BOP)
at the Federal Correctional Institution in Oxford, Wisconsin. Petitioner, appearing pro se,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his 1998 conviction
in the Southern District of Texas for kidnapping. Petitioner contends that recent Supreme
Court precedent renders his sentence unlawful because a jury did not find the facts that
petitioner’s sentencing judge used to increase his sentence.
Petitioner has paid the filing fee and the petition is before the court for preliminary
review under Rule 4 of the Rules governing Section 2254 Cases in the United States District
Courts, which is applicable to § 2241 cases through Rule 1(b).1 After conducting this review,
I conclude that petitioner cannot proceed with his claims under § 2241.

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Petitioner has also filed a motion to supplement his petition with a document explaining
that the Sentencing Commission has amended sentencing guideline § 1B1.3 (Relevant
Conduct (Factors that Determine the Guideline Range)) to “set out more clearly the threestep analysis the court applies in determining whether a defendant is accountable for the
conduct of others in a jointly undertaken criminal activity under § 1B1.3(a)(1)(B).” See
United States Sentencing Commission, Amendments to the Sentencing Guidelines, April 30,
2015, at 1, available at http://www.ussc.gov/sites/default/files/pdf/amendment-process/readerfriendly-amendments/20150430_RF_Amendments.pdf (last visited Sept. 4, 2016). I will
grant petitioner’s motion and accept this filing because it adds more detail to his claims. But
it raises no independent claim for relief based on the amendment to the guidelines; such a
request for modification of sentence must be raised in the sentencing court via motion under

FACTS
The following facts are taken from the petition and available online court records. In
1998, a jury convicted petitioner of kidnapping, in violation of 18 U.S.C. § 1201(a). That
statute includes a provision stating that someone committing that offense “shall be punished
by imprisonment for any term of years or for life and, if the death of any person results, shall
be punished by death or life imprisonment.” Section 1201(a). I take petitioner to be saying
that although the kidnapping victim was ultimately killed by one of the kidnappers, the jury
did not specifically find that petitioner caused the death of the victim. But the district court
sentenced petitioner under U.S.S.G. § 2A4.1(c), which cross-referenced the sentencing
guideline for murder. The district court sentenced Camacho to life imprisonment and to five
years of supervised release.
Petitioner’s direct appeal was denied, as was a § 2255 motion decided in 2004.

ANALYSIS
Petitioner contends that his life sentence was unconstitutional because the
determination that his actions resulted in the death of the victim was made by the judge
rather than proven to and decided by the jury, contrary to Burrage v. United States, 134 S. Ct.
881, 887 (2014). I take petitioner to be saying that his sentence violated two principles from
Burrage. First, the Burrage Court concluded that the “death . . . results from” enhancement in
the Controlled Substances Act must be presented to the jury and proven beyond a reasonable
doubt because it increases the minimum and maximum penalties to which a drug dealer is
exposed. 134 S. Ct. at 887 (citing Alleyne v. United States, 133 S.Ct. 2151, 2162-63 (2013);
18 U.S.C. § 3582(c)(2).

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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Second, the phrase “death . . . results from”
in the Controlled Substances Act means “but for” causation in the sense that the drug at
issue must be independently sufficient to have caused the death, rather than just be a
“contributing factor” to the death. Burrage, 134 S. Ct. at 887-88.
Taken together, petitioner contends that his sentence violates Burrage because the jury
was not asked to determine whether petitioner’s actions caused the death of the victim, and
that the jury would have had to find “but-for” causation.
To collaterally attack a sentence, federal prisoners must ordinarily file a petition under
§ 2255. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). But a federal prisoner “may
petition under section 2241 instead if his section 2255 remedy is ‘inadequate or ineffective
to test the legality of his detention.’” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)
(quoting 28 U.S.C. § 2255(e)). The Seventh Circuit has established three conditions that
must be present for the “inadequate or ineffective” exception to apply. First, the petitioner
must be relying on a statutory-interpretation case—rather than on a constitutional case—
because § 2255 offers relief to prisoners who rely on constitutional cases. Second, the
petitioner must be relying on a retroactive decision that he could not have invoked in his first
§ 2255 motion. Third, the sentence enhancement must have been a grave enough error to be
deemed a miscarriage of justice. Light v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014), cert.
denied, 135 S. Ct. 970 (2015); In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998).
The first issue, whether the jury, and not the judge, should have made the
determination that petitioner caused the death of the victim, is not a concept newly
articulated in Burrage. Burrage merely concluded that principles articulated in Alleyne and
Apprendi, applied to “death . . . results from” enhancement language in the Controlled

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Substances Act. But Alleyne and Apprendi have never been ruled to be retroactive, and so these
principles cannot be used to justify petitioner bringing a § 2241 petition. Crayton v. United
States, 799 F.3d 623, 624 (7th Cir. 2015) (neither Apprendi nor Alleyne applies
retroactively.”), cert. denied, 136 S. Ct. 424 (2015); United States v. Martin, 564 Fed. Appx.
850, 851 (7th Cir. 2014) (“decisions in the Apprendi sequence do not apply retroactively”).
Petitioner cannot bring this claim in his § 2241 petition.
The retroactivity problem does not doom petitioner’s second issue, that the causation
question would have to be resolved under a “but-for” standard. As petitioner shows, there is
at least the possibility that the but-for rule in Burrage would be considered retroactive. See e.g.,
Perrone v. United States, No. 09-CR-30016-DRH, 2016 WL 2910004, at *3 (S.D. Ill. May 19,
2016) (“the government concedes that Burrage is substantive in nature and is retroactive”);
but see Stewart v. United States, 89 F. Supp. 3d 993, 996 (E.D. Wis. 2015) (Burrage not
retroactive); Taylor v. Cross, No. 14-CV-304-DRH, 2014 WL 1256371, at *3 (S.D. Ill. Mar.
26, 2014) (same). But even if Burrage were applied retroactively, it does not seem to apply to
the facts of petitioner’s case. Burrage concerned a type of crime, providing the victim with a
drug that caused his death, where the true cause of death can be extremely murky,
particularly where the victim ingested more than one drug. Here, the question was simple:
whether the kidnappers killed the victim. Petitioner does not argue that more than one factor
contributed to the death of the victim. The application of the but-for causation standard
would not help petitioner.
Rather, from his supplemental brief, petitioner argues that the district judge violated
Burrage by unconstitutionally applying sentencing guideline § 1B1.3(a)(1)(B) in considering
the victim’s death a “foreseeable” event of petitioner and his associates’ joint criminal

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activity. But application of this guideline is completely unrelated to Burrage, and petitioner
does not raise any other statutory-interpretation case that could retroactively apply to this
issue. As stated above, supra note 1, any challenge regarding an amended guideline itself
would have to be raised to the sentencing court in a motion under 18 U.S.C. § 3582(c)(2).
Because petitioner raises no claims that could entitle him to relief under § 2241, I will
dismiss this case.

ORDER
IT IS ORDERED that:
1. Petitioner Freddie Camacho’s motion to supplement his petition, Dkt. 3, is
GRANTED.
2. Petitioner’s petition for writ of habeas corpus under 28 U.S.C. § 2241, Dkt. 1,
is DENIED, and this case is DISMISSED.
3. The clerk of court is directed to close this case.
Entered September 12, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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