BILLUPS, BRIAN K. v. USA

Filing 25

Transmission of Notice of Appeal, Docketing Statement, Opinion and Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 19 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Opinion and Order, # 3 Judgment, # 4 Docket Sheet) (lak)

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

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

BRIAN K. BILLUPS,
OPINION AND ORDER
Petitioner,
16-cv-50-bbc
06-cr-213-bbc

v.
UNITED STATES OF AMERICA,
Respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Brian K. Billups is moving for post conviction relief under 28 U.S.C. §
2255, challenging his 2007 sentencing as a career offender. He contends that he is entitled
to resentencing under the recent holding in Johnson v. United States, 135 S. Ct. 2551
(2015), that the so-called residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is
unconstitutionally vague. Petitioner was not sentenced under this particular provision, but
he believes that the decision applies to sentences imposed under the career offender
provisions of the sentencing guidelines, as his was.
For the reasons set out in Bufford v. United States, 15-cv-494-bbc (attached), I
conclude that petitioner has no viable claim for resentencing. His sentence was imposed in
2007; he appealed from the sentence at the time; and he has not suggested any reason why
his motion for post conviction relief raises any issue that would distinguish his case from the

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cases discussed in Bufford.

RECORD FACTS
In April 2007, petitioner Brian K. Billups was sentenced to a term of 151 months for
one count of possession with intent to distribute cocaine in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. His sentence was increased after he was found to be a career
offender by virtue of his two prior felony convictions, one for a serious controlled substance
offense and one for false imprisonment. At the time, the applicable sentencing guidelines,
U.S.S.G. § 4B1.2, read as follows:
(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
(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. [The italicized portion is generally referred to as the residual clause.]
b) The term “controlled substance offense” means an offense under federal or
state law, punishable by imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
Petitioner’s drug conviction qualified as a predicate offense for career offender status
under U.S.S.G. § 4B1.2(b); his false imprisonment conviction qualified under § 4B1.2(a)(2).
Petitioner was sentenced at the bottom of the advisory guideline range of 151-188 months.
He took a direct appeal of his sentence in 2007, arguing that his false imprisonment charge

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was not a crime of violence, but not contending that the residual clause was
unconstitutional. On appeal, the Court of Appeals for the Seventh Circuit agreed with this
court that petitioner’s false imprisonment charge was a crime of violence. United States v.
Billups, 536 F.3d 574, 576 (7th Cir. 2008) (crime fell within residual clause of U.S.S.G. §
4B1.2(a)(2) because it “always involves purposeful behavior and typically involves aggressive,
violent behavior”).
In 2010, petitioner filed a post conviction motion under 28 U.S.C. § 2255, raising
the same claim he had raised on direct appeal, contending that his false imprisonment
conviction should not have been considered a crime of violence. Mot., dkt. #42, 06-cr-213bbc. The motion was denied on the ground that petitioner had raised the same claim
unsuccessfully in his direct appeal. Order, dkt. #43.
In addition to these motions, petitioner tried twice to have his sentence reduced
under retroactive changes to the drug quantity guidelines. Dkts. ##38 & 49. Both motions
were denied on the ground that he was a career offender and the guideline changes did not
apply to career offenders. Dkts. ##41 & 50.
In October 2015, petitioner filed a second motion in this court for post conviction
relief under 28 U.S.C. § 2255. After the motion was denied because petitioner had not
obtained permission from the court of appeals to file a successive post conviction motion,
Order, dkt. #51, he applied to the court of appeals to file a successive § 2255 petition in
light of the holding in Johnson v. United States, 135 S. Ct. 2551 (2015), that the residual
clause in the Armed Career Criminal Act, § 924(e)(2)(B)(ii) was unconstitutionally vague.

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The court of appeals granted his motion, allowing him to file a successive § 2255 motion.
Dkt. #1, 16-cv-50-bbc. He has since filed his authorized motion with the help of the federal
defender.

OPINION
Although the court of appeals authorized petitioner’s motion, in doing so, it noted
that the government had raised a number of defenses, arguing among other things that
petitioner had defaulted his vagueness argument and that his application was barred by 18
U.S.C. § 2244(b)(1). Rather than rule on any of these arguments, the court of appeals left
it to this court to address them “after adversarial testing,” which the court of appeals could
not accommodate in the 30-day period allowed for deciding a motion such as petitioner’s.
28 U.S.C. § 2244(b)(3)(D). Order, dkt. #1.
As noted above, I am denying petitioner’s motion for the same reasons I denied a
similar claim in Bufford v. United States, 15-cv-494. In sum, it may have been an error to
have increased petitioner’s sentence in 2007 but it was not an error that justifies
resentencing. Petitioner cannot show that the sentence he received exceeded the statutory
maximum for possession with intent to distribute cocaine, in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. A judge imposing a sentence that is increased under §
924(e)(2)(B) of the Armed Career Criminal Act must impose a sentence of at least 15 years
to life; a judge imposing a sentence under the career offender guidelines has no authority to
exceed the maximum punishment established by statute.

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Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a petitioner.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means 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 quotations and citations omitted). I believe
that the conclusion I have reached is the correct one. I cannot say, however, that reasonable
jurists would not disagree about whether the holding in Johnson has a substantive effect on
sentences imposed under the sentencing guidelines.

ORDER
IT IS ORDERED that petitioner Brian K. Billups’s motion for post conviction relief,

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dkt. #2, 16-cv-50, is DENIED. A certificate of appealability will issue.
Entered this 2d day of June, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RITCHIE E. BUFFORD,
OPINION AND ORDER
Petitioner,
15-cv-494-bbc
08-cr-68-bbc

v.
UNITED STATES OF AMERICA,
Respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Ritchie E. Bufford has filed a motion under 28 U.S.C. § 2255, challenging
the 200-month sentence imposed on him in 2008 for possession with intent to distribute
five grams or more of cocaine base. He was sentenced as a career offender because he had
one prior conviction for a serious controlled substance offense and another for the crime of
vehicular fleeing/eluding an officer, which qualified as a “crime of violence” under the
sentencing guidelines at the time he was sentenced. He took a direct appeal of his sentence,
which was denied, but he never filed a post conviction motion until now.
Petitioner contends that he was sentenced illegally in 2008 and is entitled to
resentencing as a result of the recent decision in Johnson v. United States, 135 S. Ct. 2551
(2015), that the so-called residual clause in the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague.

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Odd as it might seem that he is basing his

claim on a change in the Armed Career Criminal Act, when he has never been convicted of
violating that Act, he has reason to do so because he is challenging a provision in the
sentencing guidelines that tracks the residual clause in § 924(e)(2)(B). If he is correct in
thinking that the holding in Johnson applies to his case, he will no longer be considered a
career offender under the guidelines and will be eligible for resentencing.
Although the Court of Appeals for the Seventh Circuit has not yet decided whether
the Johnson decision requires resentencing of career offenders like petitioner, as a general
rule it has been reluctant to grant requests for resentencing of career offenders. The two
exceptions to this rule are those situations in which the challenge was raised on direct appeal
or the petitioner was sentenced under the guidelines while they were mandatory. Petitioner
has not shown that his case falls into either of those exceptions. Accordingly, I will deny his
motion for post conviction relief.

RECORD FACTS
In September 2006, petitioner Ritchie E. Bufford entered a plea of guilty to a charge
of distributing five or more grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
He was sentenced as a career offender under the sentencing guidelines, U.S.S.G. § 4B1.2,
to 200 months, which was 62 months below the bottom of his 262-327 month guideline
range. Petitioner had two prior felony convictions, one for a serious controlled substance
offense and one for fleeing an officer. The drug conviction qualified as a predicate offense
for career offender status under § 4B1.2(b); at the time, the fleeing an officer conviction

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qualified as a crime of violence under § 4B1.2(a)(2) under the applicable guidelines:

(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
(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. [The italicized portion is generally referred to as the residual clause
and is taken verbatim from 18 U.S.C. § 924(e)(2)(B)(ii).]
b) The term “controlled substance offense” means an offense under federal or
state law, punishable by imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
Petitioner took a direct appeal of his sentence, which was denied, along with the
appeals of two other defendants. United States v. Partee, 373 Fed. App’x. 602 (7th Cir.
2010). He did not seek post conviction relief until August 10, 2015, after Johnson had been
decided, when he filed this motion for post conviction relief under 28 U.S.C. § 2255. This
was his first motion for post conviction relief and he was granted leave to proceed on
September 14, 2015. His motion for appointment of counsel was granted on September 28,
2015.

OPINION
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that

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it was unconstitutional to rely on the abstract terms of the residual clause to increase the
punishment of a person sentenced under the Armed Career Criminal Act. The language of
the clause, “conduct that presents a serious potential risk of physical injury to another,” is
too vague to give fair warning of the conduct that came within the terms of the clause and
thus denied the offender due process of law. Id. at 2557. The Court made it explicit in
Welch v. United States, 136 S. Ct. 1257 (2016), that the holding in Johnson is substantive
and has retroactive effect on sentences imposed under the Armed Career Criminal Act. See
also Conrad v. United States, 815 F.3d 324, 327 (7th Cir. 2016) (“rules altering sentencing
length are explicitly substantive even when the sentencing judge is not required to impose the
higher or lower sentence permitted by the new rule”); Price v. United States, 795 F.3d 731,
734 (7th Cir. 2015) (“Johnson, we conclude, announced a new substantive rule.”).
The issue that petitioner raises is whether the holding in Johnson applies to sentences
imposed under § 4B1.2(a)(2) of the sentencing guidelines that were not either pending on
direct appeal at the time that Johnson was decided or eligible for direct appeal. Another way
of phrasing this is to ask whether the holding in Johnson is substantive as it relates to
sentences imposed under the career offender guidelines rather than under § 924(e)(2)(B).
The government’s position is that Johnson does not apply to any guideline sentences other
than those few pending on direct review or not yet final. In the government’s view, this
differential in treatment between sentences imposed under § 924(e)(2)(B) and those
imposed under the guidelines is justified by the fact that career offender sentences do not
increase the length of the sentence to which a defendant is subject. Although a judge using

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the residual clause as the starting point for the calculation of the sentencing guidelines may
arrive at a higher sentence than would have been imposed without the residual clause, that
judge cannot impose a sentence higher than the statutory maximum, whereas a judge
sentencing a person with three qualifying prior convictions under the Armed Career Criminal
Act, 18 U.S.C. § 924(e), must impose a sentence of at least 15 years, with no ceiling.
The Court of Appeals for the Seventh Circuit has not yet resolved the question of
Johnson’s effect on sentences imposed under the guidelines language derived from §
924(e)(2)(B)(ii). However, its decisions over the past five years suggest the path it will take.
E.g., United States v. Tichenor, 683 F.3d 358, 363-67 (7th Cir. 2012) (holding that
guidelines sentences are not susceptible to vagueness challenges) (citing United States v.
Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999) (guidelines do not establish illegality of any
conduct and thus are not susceptible to attack under vagueness doctrine)). Other circuits
have reached similar conclusions. See, e.g., United States v. Ellis, 815 F.3d 419 (8th Cir.
2016); United States v. Matchett, 802 F.3d 1185, 1193-95 (11th Cir. 2015) (“The
vagueness doctrine, which ‘rest[s] on [a] lack of notice’ . . . ‘does not apply to advisory
guidelines.”) (citing Irizarry v. United States, 553 U.S. 708, 713 (2008) (“any expectation
subject to the due process protection . . . that a criminal defendant would receive a sentence
within the presumptively applicable guideline range did not survive [the] decision in United
States v. Booker.”)
The government has waived reliance on Tichenor, Govt. Br., dkt. #2, at 4-5, but only
as to cases currently pending on direct appeal, not as to claims brought in successive motions

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for collateral review. It remains to be seen whether the court of appeals will reach the same
decision, but it seems likely given the number of opinions in which it has expressed the view
that erroneous interpretations of the guidelines should not be subject to correction in later
proceedings,
especially when the interpretation is discovered to be erroneous after the
proceeding in which it was committed has become final through exhaustion
of appellate remedies. For in such a case the challenge to the judgment
depends on the retroactive application of a new rule (the corrected
interpretation), and such retroactivity is disfavored because it thwarts finality
in the criminal process. Teague v. Lane, 489 U.S. 288, 334 (1989) (plurality
opinion).
Hawkins v. United States, 706 F.3d 820, 823-24 (7th Cir. 2013). The court added that
once the guidelines were no longer mandatory, not only do they
no longer bind the sentencing judge, [but] the judge may not even presume that
a sentence within the applicable guidelines range would be proper. He must
determine whether it is consistent with the sentencing considerations set forth
in 18 U.S.C. § 3553(a), and if he finds it is not he may not impose it even
though it is within the applicable guidelines range.
Id. at 822. Indeed, the court of appeals has held consistently that errors in calculating career
offender sentences do not constitute a miscarriage of justice; in fact, they are not even
cognizable in a motion for post conviction relief under 28 U.S.C. § 2255. E.g., United
States v. Coleman, 763 F.3d at 706, 708-09 (7th Cir. 2014) (“We held in Hawkins [706
F.3d at 823], that the erroneous determination that the petitioner was a career offender in
calculating his sentence was not a cognizable error [if imposed after guidelines were no
longer mandatory].”)
On a motion for rehearing in Hawkins, 724 F.3d 915 (7th Cir. 2013), the court of

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appeals denied rehearing en banc, despite the new opinion in Peugh v. United States, 133
S. Ct. (2013), in which the Supreme Court had held that the ex post facto clause was violated
if the court calculated the sentence on the basis of the range in effect at the time of
sentencing rather than the range in effect at the time the crime was committed if the earlier
range was less punitive. The court found that unlike Peugh, Hawkins had not shown any
constitutional error in his sentence. Recently, in Conrad, 815 F.3d 324, the court took the
further step of denying review of a sentence that did violate Peugh (petitioner’s guideline
range was increased after he committed the crime for which he was being sentenced and he
was sentenced within the increased range). In doing so, the court noted that although
Conrad’s sentencing range had been increased, his sentence was still within the statutory
maximum; the guidelines were not mandatory when he was sentenced; and he could not say
he did not have fair warning of the potential sentence when he committed his crime. Id. at
327. In sum, the court concluded, he was not facing an illegal punishment. Id. at 328.
As the court explained, the point of the ex post facto clause is to insure that individuals
have fair notice of what acts are criminal and what penalties attach to those acts. So long
as the maximum penalties are spelled out in the statutes, the would-be offender has fair
warning of the consequences of committing the prohibited act and is found guilty. Id. at
327. Nevertheless, on direct appeal, the offender would be entitled to a correction of his
sentence if he could show that the sentencing judge started at the wrong point in calculating
the career offender sentence. What the offender was not entitled to, however, is relief on
a motion for post conviction relief correcting a sentence imposed before Peugh was decided.

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Id. at 328.

In that situation, “the concern with overburdening the courts with

postconviction litigation has controlling weight because, the guidelines not being binding on
the sentencing judge, the defendant---provided that the judge does not impose a sentence
higher than the statutory maximum when he committed his crime---does not ‘face a
punishment that the law cannot impose upon him.’” Id. (quoting Schriro v. Summerlin, 542
U.S. 348, 352 (2004)).
In sum, I conclude that it is too late for petitioner to seek resentencing. He has not
shown that he is facing a punishment that the law cannot impose upon him. To the
contrary, he is serving a sentence well within the guidelines applicable to his crime. He was
not sentenced when the guidelines were mandatory, but at a time at which the sentencing
judge was free to impose any sentence up to the statutory maximum. Accordingly, he has
no viable claim for resentencing.
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a petitioner.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means 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 quotations and citations omitted). I believe
that the conclusion I have reached is the correct one, that is, that offenders sentenced under

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the career offender provisions of the sentencing guidelines cannot challenge a sentence that
has become final. However, I cannot say that reasonable jurists would not disagree.

ORDER
IT IS ORDERED that petitioner Ritchie E. Bufford’s motion for post conviction relief
is DENIED. A certificate of appealability will issue.
Entered this 2d day of June, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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