Slizewski v. USA

Filing 2

OPINION & ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255 by Petitioner Lance Slizewski. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. Signed by District Judge James D. Peterson on 8/24/2017. (kwf)

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

LANCE SLIZEWSKI,
Petitioner,

OPINION & ORDER

v.
UNITED STATES OF AMERICA,

14-cr-87-jdp
17-cv-420-jdp

Respondent.
Pro se petitioner Lance Slizewski is a federal prisoner incarcerated at the Pekin Federal
Correctional Institution in Illinois. In 2015, he pleaded guilty to one count of felon in
possession of a firearm, and I sentenced him to 180 months in prison. United States v. Slizewski,
No. 14-cr-87, Dkt. 49 (W.D. Wis. June 25, 2015).
Slizewski has filed a motion for postconviction relief under 28 U.S.C. § 2255, arguing
that, under Mathis v. United States, 136 S. Ct. 2243 (2016), he no longer meets the definition
of “armed career criminal,” which resulted in a mandatory minimum sentence. Dkt. 1. After
reviewing his motion under Rule 4 of the Rules Governing Section 2255 Proceedings for the
United States District Courts, I conclude that although the Mathis line of cases affects the
analysis of Sliziewski’s criminal history, he still meets the definition of armed career criminal.

BACKGOUND
In April 2015, Slizewski pleaded guilty to one count of felon in possession of a firearm
under 18 U.S.C. § 922(g)(1). I sentenced him in June 2015.
I concluded that Slizewski was subject to a mandatory minimum of 15-year sentence
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because he had at least

three predicate convictions. At the time, I concluded that he had five: “(1) Burglary - Building
or Dwelling, Attempt, Vilas County Circuit Court, Case No. 02CF55; (2) Battery, Habitual
Criminality, Vilas County Case No. 02CF116; (3) Battery by Prisoners, Dane County Circuit
Court, Case No. 06CF2452; (4) Substantial Battery-Intend Bodily Harm, Dane County Circuit
Court, Case No. 08CF1980; and (5) Strangulation and Suffocation, Dane County Circuit
Court, Case No. 10CF348.” Slizewski, No. 14-cr-87, Dkt. 47, at 4.

ANALYSIS
To prevail, Slizewski must show that his “sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Here, Slizewski relies on Mathis,
136 S.Ct. 2243. But even after Mathis, Slizewski still has at least three qualifying convictions
under § 924(e).
Under the ACCA, a criminal defendant is an armed career criminal if he has at least
three previous convictions that qualify as predicate offenses. § 924(e)(1). Either a “violent
felony” or a “serious drug offense” can qualify as a predicate offense. Id. Slizewski’s case turns
on whether he had at least three violent felonies. The ACCA defines the term “violent felony”
as
any crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
adult, that—
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

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(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;
§ 924(e)(2)(B). Both subsections are relevant here because Slizewski had burglary and battery
convictions. The residual clause, which would include crimes that pose “a serious potential risk
of physical injury to another,” does not apply because it has been held unconstitutional. Samuel
Johnson v. United States, 135 S. Ct. 2551 (2015). The residual clause was never at issue in
Slizewski’s case.
The next task is to determine whether Slizewski prior offenses qualify as predicate
offenses under the ACCA. Under Taylor v. United States, and its successors, Descamps v. United
States and Mathis, a district court must first apply the categorical approach when enhancing
sentences under § 924(e) and compare elements of each prior offense with elements of a generic
offense. 495 U.S. 575, 602 (1990); 133 S.Ct. 2276, 2281 (2013); 136 S.Ct. at 2248. The
elements of the offenses govern, and district judges disregard the actual facts of the underlying
offense conduct. Yates v. United States, 842 F.3d 1051, 1052 (7th Cir. 2016).
This rule has one exception, which Mathis clarified. When the relevant statute has a
“more complicated (sometimes called ‘divisible’) structure,” listing “multiple elements
disjunctively,” the court may apply the modified categorical approach and examine “a limited
class of documents . . . to determine what crime, with what elements, a defendant was
convicted of.” Mathis, 136 S. Ct. at 2249. But when the statute lists multiple “means” to satisfy
just one element—as opposed to listing alternative elements of the crime—the court cannot
apply the modified categorical approach. Id. at 2253.
One of Slizewski’s predicate offenses is affected by the Mathis analysis. A conviction
under Wisconsin’s burglary statute, now codified as Wis. Stat. § 943.10(1m), is not “divisible,”

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and it covers conduct that would not fall within the scope of generic burglary. Thus, it is not a
qualifying predicate offense under the career offender guidelines. United States v. Edwards, 836
F.3d 831, 838 (7th Cir. 2016). The analysis in Edwards also means that a conviction under
Wisconsin’s burglary statute cannot be a predicate offense under the ACCA. So Slizewski’s
conviction in Case. No. 02CF55 for attempted burglary is not a predicate offense either. This
issue was not contested at Slizewski’s sentencing, probably because he has four other
convictions for violent felonies, and § 924(e) requires only three prior convictions.
For present purposes I will discuss these three:
1. October 11, 2002 battery conviction under Wis. Stat.
§ 940.19(1), Vilas County Circuit Court Case No.
02CF116;
2. February 13, 2007 battery by prisoner conviction under
§ 940.20(1), Dane County Circuit Court, Case No.
06CF1185; and
3. January 26, 2009 substantial battery conviction under
§ 940.19(2), Dane County Circuit Court, Case No.
08CF1980.
Slizewski, No. 14-cr-87, Dkt. 43, at 9-13 and Dkt. 47, at 4. Under Wisconsin law, each of these
three offenses includes the element intentionally causing bodily harm:
1. Battery under § 940.19(1): Whoever causes bodily harm
to another by an act done with intent to cause bodily harm
to that person or another without the consent of the
person so harmed is guilty of a Class A misdemeanor.
2. Battery by prisoners under § 940.20(1): Any prisoner
confined to a state prison or other state, county or
municipal detention facility who intentionally causes
bodily harm to an officer, employee, visitor or another
inmate of such prison or institution, without his or her
consent, is guilty of a Class H felony.
3. Substantial battery under § 940.19(2): Whoever causes
substantial bodily harm to another by an act done with

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intent to cause bodily harm to that person or another is
guilty of a Class I felony.
§§ 940.19(1)(2), 940.20(1).1 The term “bodily harm” is defined under § 939.22(4) as “physical
pain or injury, illness, or any impairment of physical condition.” The Seventh Circuit has held
that intentionally causing “bodily harm” under § 939.22(4) qualifies as “the use, attempted
use, or threatened use of physical force against the person of another” under § 924(e)(2)(B)(i).
Yates, 842 F.3d at 1053 (“That definition tracks what Curtis Johnson said would suffice: ‘force
capable of causing physical pain or injury to another person.’” (quoting Curtis Johnson v. United
States, 559 U.S. 133, 140 (2010))). So Slizewski has at least three qualifying convictions, and
even after Mathis he meets the criteria for an armed career criminal under § 924(e).
Slizewski argues that “[a] conviction is not a violent crime merely because it presents a
‘serious potential risk of physical injury.’” Dkt. 1, at 4. I take Slizewski to be invoking Samuel
Johnson, where the Supreme Court held the residual clause of § 924(e) unconstitutional. 135 S.
Ct. 2551. But I did not use the residual clause of § 924(e) to determine any of Slizewski’s
predicate offenses, so Samuel Johnson does not apply here. See Yates, 842 F.3d at 1052 (“Samuel
Johnson does not affect the elements clause of § 924(e).”). The three convictions I discuss here
all required an actual intent to cause bodily harm.
In sum, Slizewski cannot prevail because he has at least three predicate convictions,
even after Mathis. I will deny his motion.
Under Rule 11 of the Rules Governing Section 2255 Cases, I must issue or deny a
certificate of appealability when entering a final order adverse to Slizewski. I will not issue a

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The crime of battery by prisoner now has “intentionally caus[ing] bodily harm or a soft tissue
injury” as an element, § 940.20(1), but when Slizewski committed the crime for which he was
convicted in February 2007, the statutory text did not include the soft tissue injury part.

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certificate of appealability unless Slizewski makes “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), which requires him to demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). Although the rule allows me to ask Slizewski to submit a brief on
appealability, it is not necessary to do so in this case. No reasonable jurist would debate this
decision, so I will not issue Slizewski a certificate of appealability.

ORDER
IT IS ORDERED that:
1. Petitioner Lance Slizewski’s motion for postconviction relief under 28 U.S.C.
§ 2255, Dkt. 1, is DENIED. The clerk of court is directed to enter judgment in
favor of respondent and close the case.
2. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may
seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22.

Entered August 24, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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