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concluding that Seventh Circuit precedent barred the court from granting relief to a § 2255 petitioner sentenced under the residual clause of the career-offender guideline
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Case No. 15-CV-1219-JPS
02-29-2016
CHRISTOPHER R. CUMMINGS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
On October 13, 2015, the petitioner, Christopher Cummings, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket #1). That § 2255 motion rests upon Mr. Cummings' contention that his sentence is no longer appropriate in light of the Supreme Court's decision in Johnson v. United States, --- U.S. ----, 135 S.Ct. 2551 (2015). More specifically, Mr. Cummings argues that following Johnson he is not a career offender under the United States Sentencing Guidelines.
The parties have fully briefed the motion (Docket #1, #4, #7), and the Court will now decide it. In doing so, the Court first provides relevant background as to both Mr. Cummings' underlying conviction and the state of the law in light of Johnson. It then describes the parties' respective positions before substantively analyzing the issues presented in the case. Ultimately, the Court must deny Mr. Cummings' § 2255 motion.
1. FACTUAL BACKGROUND
On August 15, 2006, a grand jury returned an indictment against Mr. Cummings. That indictment contained three separate charges of distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), all against Mr. Cummings, alone. (Case No. 06-CR-199, Docket #1).
Because the Court must cite to portions of the docket sheet in both this case and in Mr. Cummings' underlying criminal case, it will include a reference to the criminal case number ("Case No. 06-CR-199") in all citations to the criminal case record. Where the Court does not reference a case number in its citation, it is citing to the record in the instant action (Case No. 15-CV-1219, which regards Mr. Cummings § 2255 motion).
Mr. Cummings pled guilty to Count Three in exchange for dismissal of the remaining two counts at the time of sentencing. (Case No. 06-CR-199, Docket #14 ¶¶ 4, 8; Case No. 06-CR-199, Docket #17). The plea agreement provided that the Government would be able to establish by a preponderance of the evidence that the drug quantity attributable to Mr. Cummings was 7.4 grams of cocaine. (Case No. 06-CR-199, Docket #14 ¶ 16).
Prior to sentencing, the Probation Department prepared a presentence report, in which it determined that Mr. Cummings was a career offender under the applicable guidelines, which had two effects on the guidelines applicable to Mr. Cummings. (See Case No. 06-CR-199, Docket #19 at 5-7). First, and of little importance, the career-offender designation required that Mr. Cummings be placed in criminal history category VI, pursuant to U.S.S.G. § 4B1.1. (See Case No. 06-CR-199, Docket #19 ¶ 20). That aspect of the career-offender designation is of little importance because, even without it, Mr. Cummings would still have been placed in criminal history category VI. (See Docket #36 at 3; Case No. 06-CR-199, Docket #19 at 7-8). Second, and much more important, the career-offender designation set the base offense level for Count Three at 34. (See Case No. 06-CR-199, Docket #19 at 5-7). Without the career-offender designation, Count Three's base offense level would have been 12. (Id.) That disparity in base offense level meant the difference between, on one hand, a guideline range of 24-30 months applicable in the absence of the career-offender designation, and, on the other, a guideline range of 188-235 months applicable in light of the career-offender designation. (Id.; Case No. 06-CR-199, Docket #20 at 4-7).
Mr. Cummings understandably objected to his designation as a career offender. (Case No. 06-CR-199, Docket #19 at 5-7; Case No 06-CR-199, Docket #20 at 4-7). In doing so, Mr. Cummings identified the three separate requirements to be found a career offender:
(1) he was at least 18 when he committed the instant offense;U.S.S.G. § 4B1.1(a). He conceded that the first two requirements were satisfied. He was at least 18 when he committed the crime charged in Count Three, which was a controlled substance offense. (Case No. 06-CR-199, Docket #19 at 5-6). He also conceded that he had one prior felony conviction for a controlled substance offense, specifically, a state conviction for possession with intent to deliver cocaine. (Id. at 6).
(2) the instant offense was either a crime of violence or controlled substance offense; and
(3) he had two prior felony convictions for either crimes of violence or controlled substance offenses.
Mr. Cummings, however, did not concede that he had a second felony conviction for a crime of violence. (See id.) Instead, he pointed out that his only prior conviction that could possibly constitute the required second conviction was a state conviction for Discharging a Firearm from a Vehicle, in violation of Wis. Stat. § 941.20(3)(a). (Case No. 06-CR-199, Docket #19 at 6). And that conviction, Mr. Cummings argued, did not qualify as a crime of violence under U.S.S.G. § 4B1.2(a). (Case No. 06-CR-199, Docket #19 at 6-7). Mr. Cummings pointed out that the elements of Wis. Stat. § 941.20(3)(a) did not include, "as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1). (See Case No. 06-CR-199, Docket #19 at 7). Accordingly, Mr. Cummings' conviction could not satisfy the provisions of U.S.S.G. § 4B1.2(a)(1), known as the "force clause" or "elements clause" (hereinafter, the Court will refer to this as the "force clause"). (Case No. 06-CR-199, Docket #19 at 7). Likewise, a conviction under Wis. Stat. § 941.20(3)(a) could not possibly be one for "burglary of a dwelling, arson, or extortion," and also could not "involve[ ] use of explosives," U.S.S.G. § 4B1.2(a)(2). (See Case No. 06-CR-199, Docket #19 at 7). Thus, Mr. Cummings' conviction could not satisfy the first clause of U.S.S.G. § 4B1.2(a)(2). (Case No. 06-CR-199, Docket #19 at 7).
The Court notes that the United States Sentencing Commission has proposed changing the language of U.S.S.G. § 4B1.2(a), in order to comply with the concerns identified by the Supreme Court in Johnson. See UNITED STATES SENTENCING COMMISSION, Proposed Amendment to Sentencing Guideline 4B1.2(a) (August 7, 2015) (available online at: http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20150807-RFP-Amendments.pdf ). The Sentencing Commission unanimously approved that proposed amendment in August of 2015 and adopted it on January 8, 2016; it is now subject to a comment period, after which it will presumably take effect. See UNITED STATES SENTENCING COMMISSION, U.S. Sentencing Commission Adopts Amendment to Definition of "Crime of Violence" in Federal Sentencing Guidelines and Proposes Additional Amendments (Jan. 8, 2016) (available online at: http://www.ussc.gov/news/press-releases-and-news-advisories/january-8-2016). The Court's references to the Sentencing Guidelines, however, are entirely to the way in which they were written at the time of Mr. Cummings' sentencing.
That left only the "residual clause" of U.S.S.G. § 4B1.2(a)(2) as a possible basis for classifying Mr. Cummings' Wis. Stat. § 941.20(3)(a) conviction as a "crime of violence." The residual clause provides that a felony conviction is for a crime of violence if it "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). Mr. Cummings argued that, if the Court were to review the complaint and plea colloquy regarding Mr. Cummings' conviction under Wis. Stat. § 941.30(3)(a), it should not conclude that the conviction satisfied the residual clause. (Case No. 06-CR-199, Docket #19 at 7).
The Court disagreed with that argument. At Mr. Cummings' sentencing hearing, the Court held that Mr. Cummings' Wis. Stat. § 941.30(3)(a) conviction constituted a crime of violence under the residual clause. (See Case No. 06-CR-199, Docket #34 at 9:1-11:1). Accordingly, the Court treated Mr. Cummings as a career offender subject to a criminal history category of VI and a base offense level of 34. (Case No. 06-CR-199, Docket #34 at 16:2-10). After adjusting the offense level to account for Mr. Cummings' acceptance of responsibility, the Court determined that Mr. Cummings was subject to the following relevant guidelines:
Offense Level: 31(Id.) And, after considering those guidelines together with the arguments of the parties, the Court ultimately sentenced Mr. Cummings to 180 months imprisonment and entered judgment accordingly. (Case No. 11-CR-199, Docket #28).
Criminal History Category: VI
Guideline Term of Imprisonment: 188-235 months
If the Court had reached the opposite conclusion, Mr. Cummings would have been subject to the following relevant guidelines:
Offense Level: 10(See Case No. 06-CR-199, Docket #20 at 5).
Criminal History Category: VI
Guideline Term of Imprisonment: 24-30 months
Mr. Cummings did not directly appeal the judgment against him (Case No. 06-CR-199, Docket #29), nor did he earlier file a § 2255 motion, despite having requested permission to do so (see Case No. 06-CR-199, Docket #31, #32). It was not until after the Supreme Court issued Johnson, in June of 2015, that Mr. Cummings filed the § 2255 motion now before the Court. 2. JOHNSON AND RESULTING DEVELOPMENTS IN THE LAW
Typically, a strict one-year statute of limitations applies to § 2255 motions. See 28 U.S.C. § 2255(f). Mr. Cummings would fall outside of that limitations period if not for the provisions of 28 U.S.C. § 2255(f)(3), which provides that the one-year limitations period may start running from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." As the Court will discuss further, below, the Government argues that, while Johnson announced a retroactively-applicable right in relation to the ACCA, it did not do so in relation to the guidelines. The Government argues that, for that reason, Mr. Cummings is not entitled to relief on his § 2255 motion. Thus, the timeliness analysis is subsumed into that merits analysis: if the Supreme Court made Johnson retroactively-applicable to the guidelines, then Mr. Cummings' motion is timely under 28 U.S.C. § 2255(f)(3). See Section 4.2., infra, for further discussion on this retroactivity issue.
However, more than eight years after Mr. Cummings' judgment became final, the Supreme Court decided Johnson. As a result, the Court's earlier designation of Mr. Cummings as a career offender for purposes of the guidelines may no longer be appropriate in light of Johnson and developments in Seventh Circuit law.
The Court begins with Johnson, which held unconstitutionally vague the residual clause found in the Armed Career Criminal Act's ("ACCA") definition of "violent felony," 18 U.S.C. § 924(e)(2)(B)(ii). 135 S.Ct. at 2563. The ACCA's residual clause provided that a violent felony is "any crime punishable by imprisonment for a term exceeding one year...that...otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court found that the residual clause "leaves grave uncertainty about how to estimate the risk posed by a crime," and "about how much risk it takes for a crime to qualify as a violent felony." 135 S.Ct. at 2557-58. The Supreme Court had attempted to interpret the residual clause in four earlier cases, reaching differing results. James v. United States, 550 U.S. 192 (2007) (Florida's attempted-burglary offense is a violent felony under residual clause); Begay v. United States, 553 U.S. 137 (2008) (New Mexico's driving-under-the-influence offense is not a violent felony under the residual clause); Chambers v. United States, 555 U.S. 122 (2009) (Illinois' failure-to-report-to-a-penal-institution offense is not a violent felony under the residual clause); Sykes v. United States, 564 U.S. 1 (2011) (Indiana's vehicular-flight-from-a-law-enforcement-officer offense is a violent felony under the residual clause). After dissenting opinions suggested that the residual clause be held unconstitutionally vague in Chambers, 550 U.S. at 230 (Scalia, J., dissenting) and Sykes, 564 U.S. at ----, 131 S.Ct. 2267, 2276-77, the Johnson majority adopted that position, 135 S.Ct. at 2563.
But there are a number of gaps between Johnson and this case. First, Johnson involved a criminal defendant's direct appeal of his conviction, whereas Mr. Cummings' case comes before the court on collateral review. Second, Johnson concerns an entirely different law than the one at issue, here; the ACCA's residual clause was at issue in Johnson, whereas the guidelines' residual clause is at issue in this case.
Post-Johnson developments in the law have helped fill those gaps.
First, as to the applicability of Johnson on collateral review, the Seventh Circuit held that Johnson announced a new substantive rule of constitutional law that is "categorically retroactive to cases on collateral review." Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015).
That determination is the subject of a circuit split. The First, Second, Sixth, Seventh, Eighth, and Ninth Circuits have granted applications to file second or successive § 2255 motions based on Johnson, at least implying its retroactivity. See, e.g., Pakala v. United States, 804 F.3d 139, 139 (1st Cir. 2015) (per curiam); Rivera v. United States, No. 13-4654, Docket #44 (2nd Cir. Oct. 5, 2015); In re Watkins, No. 15-5038, --- F.3d ----, 2015 WL 9241176 (6th Cir. Dec. 17, 2015); Price, 795 F.3d at 735; Woods v. United States, 805 F.3d 1152, 1154 (8th Cir. 2015) (per curiam); United States v. Striet, No. 15-72506, Docket #2 (9th Cir. Aug. 25, 2015). The Fifth, Tenth, and Eleventh Circuits have taken the opposite approach. See, e.g., In re Williams, 806 F.3d 322, 325-26 (5th Cir. 2015); In re Gieswein, 802 F.3d 1143 (10th Cir. 2015) (per curiam); In re Franks, No. 15-15456-G, --- F.3d ----, 2016 WL 80551 (11th Cir. Jan. 6, 2016). On January 8, 2016, the Supreme Court granted certiorari in Welch v. United States, Case No. 15-6418, to resolve the issue.
And, second, the Seventh Circuit has authorized several successive § 2255 motions challenging the guidelines' residual clause on the basis of Johnson, at least implying that the question of Johnson's retroactive applicability to the guidelines' residual clause remains open. See, e.g., Best v. United States, No. 15-2417, Docket #2 (7th Cir. Aug. 5, 2015); Stork v. United States, No. 15-2687, 2015 WL 5915990, at *1 (7th Cir. Aug. 13, 2015) ("Stork I"); Swanson v. United States, No. 15-2776, Docket #5 (7th Cir. Sep. 4, 2015); Zollicoffer v. United States, No. 15-3125, Docket #4 (7th Cir. Oct. 20, 2015); Spells v. United States, No. 15-3252, Docket #9 (7th Cir. Oct. 22, 2015). This makes logical sense, because the residual clause of both the ACCA and the guidelines are practically identical. Indeed, the Seventh Circuit has "interpreted both residual clauses identically," and noted that it is proceeding on the assumption that Johnson's "reasoning applies to [§] 4B1.2 as well." Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015) (citing United States v. Billups, 536 F.3d 574, 579 n. 1 (7th Cir. 2008); United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008), abrogated on other grounds by United States v. Miller, 721 F.3d 435, 443 (7th Cir. 2013); United States v. Rosas, 410 F.3d 332, 335-36 (7th Cir. 2005)).
With that said, the Court must also note that the issue of Johnson's applicability to the guidelines' residual clause is currently pending before the Seventh Circuit in United States v. Rollins, No. 13-1731, and the consolidated cases of United States v. Hurlburt, No. 14-3611 and United States v. Gillespie, No. 15-1686. Those cases were argued before the Seventh Circuit on December 2, 2015, but have not yet been decided. In the meantime, the Seventh Circuit found that, even if Johnson applied to the guidelines, a petitioner was not entitled to relief where his conviction fell under the force clause in U.S.S.G. § 4B1.2(a)(1) (i.e., it did not fall under the residual clause). Dawkins v. United States, 809 F.3d 953, 954-56 (7th Cir. 2016). But see id. at 956-58 (Ripple, J., dissenting, stating that the crime in question might not have satisfied the force clause, and urging authorization of a successive § 2255 motion).
Moreover, the Supreme Court, itself, acted in a similar way in the days following the issuance of Johnson, when it vacated and remanded several cases involving the guidelines' residual clause. See, e.g., Beckles v. United States, 135 S.Ct. 2928 (June 30, 2015); Maldonado v. United States, 135 S.Ct. 2929 (June 30, 2015); Smith v. United States, 135 S.Ct. 2930 (June 30, 2015); Denson v. United States, 135 S.Ct. 2931 (June 30, 2015); Talmore v. United States, 135 S.Ct. 2937 (June 30, 2015); Cooper v. United States, 135 S.Ct. 2938 (June 30, 2015); Jones v. United States, 135 S.Ct. 2944 (June 30, 2015).
3. THE PARTIES' ARGUMENTS
Mr. Cummings' substantive position is simple: he argues that, in light of Johnson, he is no longer a career offender under the guidelines and should, therefore, be resentenced using the much lower guidelines range that would have otherwise been applicable in the absence of his career offender designation. There are three component parts of this argument. First, Johnson must be retroactive, both to make Mr. Cummings' petition timely and also to provide an available basis for relief. (Docket #1 at 5-6, 9-10). Second, Johnson must apply to the guidelines. (Docket #1 at 6-9). Third, Johnson must substantively undermine the guidelines' earlier designation of Mr. Cummings as a career offender; i.e., in light of Johnson, Mr. Cummings must not be subject to career offender designation under U.S.S.G. § 4B1.1. (Docket #1 at 10-12). If any one of those three component parts is not the case, then Mr. Cummings' § 2255 motion must fail.
In effect, this would entitle him to immediate release, as he has served nearly nine years of his sentence—far more than the 24-30 months guideline range that would have been applicable if he was not designated a career offender.
The Government essentially concedes the latter two component parts of Mr. Cummings' argument. It agrees that Johnson applies to the guidelines. (Docket #4 at 7-8 ("To be clear, the government agrees that Johnson's holding that the ACCA's residual clause is invalid applies to the identically worded residual clause in the career-offender guideline.") (citing United States v. Darden, 605 F. App'x 545, 545-56 (6th Cir. 2015))). It also appears to acknowledge that Johnson has invalidated the guidelines' residual clause, undermining the basis for designating Mr. Cummings a career offender. (See, e.g., Docket #4 at 2 ("As Cummings correctly notes, the relevant language in the career offender guideline—the catch-all language that would encompass a discharge-of-a-firearm conviction—is identical to the ACCA's 'residual clause.'"), 7 ("the government agrees that Johnson's holding...applies to the identically worded residual clause in the career-offender guideline."), 8 ("In sum, Johnson applies...in guidelines cases on direct review.")). That position is consistent with the one the Government has taken before the Seventh Circuit. See, e.g., United States v. Hurlburt, No. 14-3611, Docket #15 at 8 (filed Sep. 23, 2015) ("The government concedes that Johnson...applies to the identically-worded residual-clause definition of a crime of violence in U.S.S.G. § 4B1.2(a)(2)). The government agrees with the defendant that under Johnson, the guidelines' residual-clause definition of a crime of violence is unconstitutionally vague..."); United States v. Gillespie, No. 15-1686, Docket #15 at 7 (filed Sep. 14, 2015) (same).
But the Government contests the first component part of Mr. Cummings' argument: the Government maintains that Johnson is not retroactively applicable to guidelines challenges. (See, e.g., Docket #4 at 6-28). The Government also argues that the Court need not even reach that point, because Mr. Cummings procedurally defaulted his Johnson challenge to the guidelines because he did not raise it on direct appeal. (Docket #4 at 2-6).
There is an important distinction to make here. The Government agrees that Johnson is retroactive to collateral ACCA challenges, but contests retroactivity to collateral guidelines challenges; it does not challenge Johnson's applicability to both ACCA and guidelines challenges on direct review. (Docket #4 at 8). A table illustrating the Government's position serves to clarify this point:
In his reply brief, Mr. Cummings contends that the Court should excuse his procedural default and find that Johnson applies retroactively to guidelines challenges.
4. ANALYSIS
In light of the Government's concessions, there are really only two issues squarely before the Court:
(1) whether Mr. Cummings defaulted his Johnson challenge to his guidelines designation as a career offender; andIf the Court answers "no" to the first question and "yes" to the second, then Mr. Cummings is per se entitled to relief in light of the Government's position.
(2) whether Johnson applies retroactively to guidelines challenges.
4.1 Procedural Default
Mr. Cummings did not directly appeal his conviction, and so did not raise a Johnson claim on direct appeal. (Case No. 06-CR-199, Docket #29). In fact, although he argued before this Court that the career offender guideline should not apply to him, he did not do so on Johnson-style vagueness grounds. (See, e.g., Case No. 06-CR-199, Docket #19 at 5-7; Case No. 06-CR-199, Docket #34 at 8:1-11:1). On this basis, the Government argues that Mr. Cummings procedurally defaulted his Johnson challenge to the guidelines.
Generally speaking, a defendant cannot raise an argument in a post-conviction proceeding that he did not raise earlier on direct appeal. See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331, 351 (2006) (citing Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621 (1998)). However, courts may excuse procedural default where a defendant is able to demonstrate "'cause' and actual 'prejudice.'" Bousley, 523 U.S. at 622 (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 87 (1977)).
4.1.1 Cause for Procedural Default
Mr. Cummings argues, and the Court agrees, that cause for his procedural default exists, because it was actually futile for him to assert a Johnson-style claim either before this Court or on direct appeal.
In Murray v. Litwin, the Supreme Court noted that cause, as could excuse procedural default, requires "some objective factor external to the defense [that] impeded counsel's efforts to comply" with the procedural requirements to raise a claim. 477 U.S. 478, 488 (1986). And, Murray did not provide "an exhaustive catalog of such objective impediments" it noted "that a showing that the factual or legal basis for a claim was not reasonably available to counsel," could constitute the required objective impediment. Id. (citing Reed v. Ross, 468 U.S., 1, 16 (1984)). Reed, in turn, describes when that might occur: "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel." 468 U.S. at 16. In that discussion, Reed further described three situations in which a sufficiently novel claim may emerge:
The Seventh Circuit has noted that Reed may no longer be valid law. Richardson v. Lemke, 745 F.3d 258, 277 and n.7 (7th Cir. 2014) ("We have observed that the Supreme Court's later decision in Teague v. Lane, 489 U.S. 288 (1989), 'leaves no independent role for a doctrine treating legal change as "cause."' Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990)."), cert. denied sub nom. Richardson v. Pfister, 135 S. Ct. 380 (2014). Nonetheless, approximately two months ago, the Seventh Circuit invoked Reed as a potentially-applicable exception to procedural default without mentioning that it might no longer be good law. McKinley v. Butler, 809 F.3d 908, 912 (7th Cir. 2016).
First, a decision of this Court may explicitly overrule one of our precedents. Second, a decision may overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. And, finally, a decision may disapprov[e] a practice this Court arguably has sanctioned in prior cases.Reed, 468 U.S. at 17 (internal quotations and citations omitted). Reed went on to say that when a case falls into one of the first two categories and is given retroactive effect, "there will almost certainly have been no reasonable basis upon which an attorney previously could" have made the defaulted argument. Id. When that is the case, a reviewing court should generally excuse the procedural default. Id.
The first situation described by Reed is present here: in Johnson, the Supreme Court overruled precedent that was in place at the time Mr. Cummings' sentence became final, specifically James v. United States, 550 U.S. 192 (2007). There is some question about the retroactive effect of Johnson, at least as to guidelines challenges on collateral review, as the Court discusses in Section 4.2.2, infra. But, the Court will presume for this portion of its analysis that Johnson applies retroactively to Mr. Cummings' challenge. Accordingly, cause for Mr. Cummings' procedural default exists under Reed. See 468 U.S. at 17.
4.1.2 Prejudice from Procedural Default
Mr. Cummings can clearly establish prejudice in this case. To show prejudice, a petitioner need show only that without an error, the proceedings would have been different. Strickler v. Greene, 527 U.S. 263, 289 (1999). In this case, if the Court had applied the correct guideline range (without the career offender enhancement), then it would have sentenced Mr. Cummings to a lower sentence, establishing prejudice.
The Seventh Circuit has, however, questioned whether prejudice can actually be shown where an individual has been sentenced post-Booker, such that the guidelines are not mandatory. See Section 4.2.2, infra. Because the Court will discuss that issue further in Section 4.2.2, infra, it will presume prejudice for this portion of its analysis.
4.2 Johnson's Applicability to the Guidelines
The primary issue before the Court is whether Johnson applies retroactively to collateral challenges to the guidelines. Mr. Cummings argues that it does; the Government argues that it does not, although, as the Court has already noted, the Government has conceded the broader point that Johnson applies prospectively to guidelines challenges on direct appeal.
4.2.1 General Applicability of Johnson to the Guidelines
In light of the Government's concession that Johnson applies prospectively to guidelines challenges, the Court has not yet addressed the issue in depth. Ultimately, the Court will adopt the Government's position, but believes it is important to provide a reasoned basis for doing so. See United States v. Stork, No. 3:10-CR-132, 2015 WL 8056023, at *4 (N.D. Ind. Dec. 4, 2015) ("Stork II") (noting that, despite a similar concession from the Government, neither party had addressed applicable Seventh Circuit law that might have negated the Government's concession, and so addressing the issue in greater detail) (citing United States v. Tichenor, 683 F.3d 358, 364 (7th Cir. 2012); Saban v. U.S. Dep't of Labor, 509 F.3d 376, 378 (7th Cir. 2007); Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004)).
The Court acknowledges that the Seventh Circuit still has not affirmatively decided that Johnson applies to the guidelines. Indeed, in Tichenor and several predecessor cases, the Seventh Circuit expressly held that the guidelines are not subject to vagueness attacks (which is, of course, precisely what application of Johnson entails). See 683 F.3d at 364 (quoting United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999)). And, as already noted, the precise question of whether Johnson applies to the guidelines—in contravention of Tichenor—is currently pending before the Seventh Circuit. See, e.g., Rollins, No. 13-1731; Hurlburt, No. 14-3611; Gillespie, No. 15-1686. For this reason, in a very well-reasoned opinion, Judge Jon DeGuilio of the Northern District of Indiana assumed but did not decide that Tichenor would probably prevent application of Johnson to a guideline challenge. See Stork II, 2015 WL 8056023, at *4.
This is a very difficult issue, but the Court reaches the opposite conclusion for several reasons.
First, it is not clear that Tichenor actually prohibits a Johnson challenge to the guidelines. In fact, in several separate statements, the Seventh Circuit has stated that the availability of Johnson to challenge the guidelines remains an open question, rather than a closed one. See, e.g., Ramirez, 799 F.3d at 856 (pointing out that the Seventh Circuit has interpreted residual clause of guidelines identically to ACCA's residual clause and "proceed[ing] on the assumption that the Supreme Court's reasoning applies to section 4B1.2 as well" so as to authorize successive § 2255 petition, and stating that Seventh Circuit "leave[s] any issue about the effect of Johnson on the Guidelines for another day."); Stork I, 2015 WL 5915990, at *1 (authorizing successive § 2255 based upon Johnson challenge to guidelines); Dawkins, 89 F.3d at 954 (proceeding on assumption that Johnson applies to guidelines); id. at 956-58 (Ripple, J., dissenting) (urging more thorough analysis of Johnson's applicability to the case, which would require that guidelines be subject to a Johnson challenge); Rollins, No. 13-1731, Docket #45 (7th Cir. Sep. 1, 2015) ("Rollins has not asked us to revisit Tichenor in light of Johnson. Accordingly, we do not address Johnson's effect on the career-offender guideline; that question remains open in this circuit.") (opinion originally published at 800 F.3d 859 (7th Cir. 2015), but later withdrawn on grant of rehearing, which remains pending).
Second, assuming that the issue is an open one, the clear weight of other circuits' authority supports application of Johnson to the guidelines (at least on direct review). The Sixth, Eighth, and Tenth Circuits have reached that conclusion and, in fact, implied that Johnson itself made clear the ability to challenge guidelines on vagueness grounds. See, e.g., United States v. Harbin, 610 F. App'x. 562, 562-63 (6th Cir. 2015) (defendant designated as career offender under the guidelines is "entitled to the same relief as offenders sentenced under the residual clause of the ACCA"); United States v. Taylor, 803 F.3d 931, 933 (8th Cir. 2015) (per curiam) ("[a]lthough the guidelines are not statutes, district courts must consider them," and therefore the position "that the guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson"); United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015) (holding the residual clause in the Guidelines unconstitutional in light of Johnson). The First Circuit has clearly implied that it finds that position persuasive. See United States v. Soto-Rivera, 811 F.3d 53, 62 (1st Cir. 2016). And the Second, Third, and Ninth Circuits allowed vagueness challenges to the guidelines prior to Johnson and so would clearly allow a Johnson challenge to the guidelines. See, e.g., United States v. Savin, 349 F.3d 27, 38 (2d Cir. 2003); United States v. Maurer, 639 F.3d 72 (3d Cir. 2011); United States v. Gallagher, 99 F.3d 329, 334 (9th Cir. 1996). Only the Eleventh Circuit has found that Johnson does not apply to the guidelines. United States v. Matchett, 802 F.3d 1185, 1193-95 (11th Cir. 2015). But as the Tenth Circuit has pointed out in implying its disagreement with the Eleventh Circuit's reasoning, the Eleventh Circuit's conclusion rested entirely on cases that predate Johnson and Peugh v. United States, --- U.S. ----, 133 S.Ct. 2072 (2013), the latter of which expressly held the guidelines were subject to constitutional challenge. Madrid, 805 F.3d at 1212 n.9.
And, third, that brings the Court to its final reason for adopting the Government's position that Johnson applies to the guidelines: Tichenor and all of its predecessors predated both Peugh and Johnson. The Court agrees with the Tenth Circuit's implication that Tichenor is no longer applicable in light of Peugh and Johnson. See Madrid, 805 F.3d at 1212 n.9. In that regard, the Court cannot find a single case issued by the Seventh Circuit after Peugh that applies Tichenor or its predecessors for the proposition that the guidelines are not subject to vagueness challenges.
For all of these reasons, the Court finds that Johnson applies to the guidelines (at least prospectively) and so adopts the Government's concession in that regard.
4.2.2 Johnson's Retroactive Application to Collateral Challenges to the Guidelines
The above conclusion, of course, does not make any difference if Johnson does not apply retroactively to collateral challenges to the guidelines. And, unfortunately, the Court is obliged to find that Seventh Circuit authority compels a determination that Johnson does not apply retroactively to collateral challenges to the guidelines, such as Mr. Cummings' § 2255 motion, here, despite the Court's belief that Mr. Cummings suffers a grave injustice as a result. To understand why that is the case, it is necessary to trace the Seventh Circuit's path through three cases: (1) Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011); (2) Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013) ("Hawkins I"), opinion supplemented on denial of reh'g, 724 F.3d 915 (7th Cir. 2013) ("Hawkins II"); and (3) United States v. Coleman, 763 F.3d 706, 707 (7th Cir. 2014), as amended on denial of reh'g and reh'g en banc (Oct. 16, 2014), cert. denied, 135 S. Ct. 1574 (2015).
Narvaez. The first case, Narvaez, would—if not for the later-decided Hawkins opinions—seem clearly to support Johnson's retroactive applicability to the guidelines. In Narvaez, the Seventh Circuit held that Begay and Chambers, both precursors to Johnson, applied retroactively to the § 2255 motion of petitioner Luis Narvaez. 674 F.3d at 623.
Narvaez pled guilty to federal bank robbery charges in 2003. Id. The sentencing judge designated Narvaez a career offender under the guidelines, U.S.S.G. § 4B1.1. Narvaez, 674 F.3d at 623. To reach that designation, the sentencing judge found that Narvaez had earlier been convicted twice of escape from custody, in violation of Wis. Stat. § 946.42(3)(a), and that those two convictions were crimes of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2). See Narvaez, 674 F.3d at 623-24. The career offender designation increased Narvaez's sentencing range from 100-125 months to 151-188 months. Id. And, because Narvaez's sentencing occurred prior to United States v. Booker, the applicable guideline range was mandatory. Narvaez, 674 F.3d at 624, 628-29 (citing Booker, 543 U.S. 220, 234 (2005)). The sentencing judge, accordingly, sentenced Narvaez to 170 months' imprisonment.
Later Supreme Court decisions called into question Narvaez's designation as a career offender. Five years after Narvaez had been sentenced, the Supreme Court held in Begay that a DUI could not satisfy the ACCA's residual clause. See Narvaez, 674 F.3d at 624 (citing Begay, 553 U.S. at 143-45, 148). And, one year after Begay, the Supreme Court decided in Chambers that an Illinois escape conviction (similar to Narvaez's) also could not satisfy the ACCA's residual clause. See Narvaez, 674 F.3d at 624 (citing Chambers, 555 U.S. at 126-30).
On the basis of those two cases, Narvaez filed a § 2255 motion, asserting that he was no longer a career offender under the guidelines and, therefore, was entitled to resentencing. Narvaez, 674 F.3d at 625. The district court disagreed, holding that Begay and Chambers did not apply retroactively on collateral review, and so denied the § 2255 motion. Id. Narvaez appealed that decision. Id.
On appeal, the Seventh Circuit reached three very important preliminary decisions. First, it held that Begay and Chambers applied to the guidelines, even though those two cases involved the ACCA. Narvaez, 674 F.3d at 624 ("Although Begay and Chambers specifically involved the ACCA, not the Sentencing Guidelines, we have recognized that the definition of a violent felony under the ACCA was 'repeated verbatim' by the Sentencing Commission in defining a 'crime of violence' in § 4B1.2 and that '[i]t would be inappropriate to treat identical texts differently just because of a different caption.'") (citing United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008); United States v. Woods, 576 F.3d 400, 403-04 (7th Cir. 2009)). Second, it found that Begay and Chambers applied retroactively on collateral review. Narvaez, 674 F.3d at 625-26. The Seventh Circuit reached its retroactivity determination after discussing the law underlying retroactivity determinations. Id. (citing Bousley, 523 U.S. at 620-21 (discussing Teague, 489 U.S. at 311); Welch v. United States, 604 F.3d 408, 415 (7th Cir. 2010), cert. denied, 131 S.Ct. 3019 (2011)). Nonetheless, it seems important to point out that the Government had conceded retroactivity in Narvaez, 674 F.3d at 625—something it has explicitly refused to do here. Third, the Seventh Circuit found that Narvaez's argument under Begay and Chambers raised a constitutional claim, because his "illegal designation as a career offender resulted in an increase in his term of imprisonment that deprived him of liberty without due process of law." Narvaez, 674 F.3d at 626 (quoting Whalen v. United States, 445 U.S. 684, 690 (1980) for the proposition that the petitioner had a "constitutional right to be deprived of liberty as punishment for criminal conduct only to the extent authorized by Congress.").
With those preliminary decisions out of the way, the Seventh Circuit turned to the merits and found that Narvaez was entitled to resentencing in light of Begay and Chambers. Narvaez, 674 F.3d at 627-30.
Extending that outcome to Mr. Cummings' case would seem easy: aside from the fact that Narvaez was subject to pre-Booker mandatory guidelines, there is practically nothing to distinguish Narvaez from Mr. Cummings. See id. However, Hawkins I picked up on that lone distinction and foreclosed the possibility of extending Narvaez's holding to petitioners like Mr. Cummings.
Hawkins I. The Hawkins I court faced a situation that was almost identical to the one in Narvaez. Like Narvaez, Bernard Hawkins had two prior felony convictions for "walkaway" escape from prison when he was prosecuted in federal court for a third crime. Hawkins I, 706 F.3d at 821. If Hawkins had not been convicted of those two previous escapes, then he would have been subject to a guidelines range of either 15-21 months' or 24-30 months' imprisonment. Id. But, because of those two previous felonies, Hawkins was a career offender under the guidelines, subject to a guidelines range of 151-188 months' imprisonment. Accordingly, the sentencing judge sentenced Hawkins to 151 months' imprisonment—"far above the guidelines range that would have been applicable had the career offender guideline not been in play, [but] well below the statutory maximum for Hawkins' offense of conviction, which...was 20 years." Id. at 821-22.
In Hawkins I, Judge Posner wrote the majority opinion for himself and Judge Kanne. Judge Rovner dissented. Accordingly, where the Court discusses Judge Posner's majority decision, it will call it "the Hawkins I majority."
In Mr. Hawkins' case, that third crime was assault of a U.S. Marshal, in violation of 18 U.S.C. § 111(a)(1), (b), and 1114. However, this fact had no impact on the outcome.
Hawkins' sentencing occurred pre-Booker, but his direct appeal was still pending when the Supreme Court issued Booker, making the guidelines advisory. Id. at 822. The Seventh Circuit, therefore, vacated Hawkins' original sentence and directed the sentencing judge to resentence him. Id.
On remand, the sentencing judge again imposed a 151-month sentence, which the Seventh Circuit affirmed. Id.
Three years later, the Supreme Court decided Chambers, which held that certain forms of escape, including walkaway escapes like Hawkins', should not be classified as violent felonies for ACCA purposes. Id. (citing Chambers, 555 U.S. at 127-30; United States v. Hart, 578 F.3d 674, 681 (7th Cir. 2009); Templeton, 543 F.3d at 383; United States v. Ford, 560 F.3d 420, 426 (6th Cir. 2009)).
Hawkins—just like Narvaez—filed a § 2255 motion on the basis of Chambers, asserting that he was entitled to resentencing because his career-offender designation under the guidelines constituted legal error in light of Chambers. Hawkins I, 706 F.3d at 823. The sentencing judge rejected Hawkins' § 2255 motion, holding that the asserted legal error was not one that could be corrected on collateral review. Id. Hawkins appealed, pointing to Narvaez as controlling. Id. (citing Narvaez, 674 F.3d at 629-30).
The Hawkins I majority voted to affirm, distinguishing Narvaez from Mr. Hawkins' situation, primarily because Narvaez had been sentenced pre-Booker when the guidelines were mandatory, whereas Hawkins was sentenced post-Booker when the guidelines were merely advisory. Hawkins I, 706 F.3d at 822 (citing Narvaez, 674 F.3d at 628-29; Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); United States v. Wyatt, 672 F.3d 519, 523 (7th Cir. 2012)). The Hawkins I majority found that fact particularly important, because it meant that, "arguabl[y]," Narvaez's "sentence exceeded the maximum authorized by 'law,'" given that the then-mandatory guidelines "were the practical equivalent of a statute." Hawkins I, 706 F.3d at 822 (citing Narvaez, 674 F.3d at 628-29; Scott v. United States, 997 F.2d 340, 341 (7th Cir. 1993)). On the other hand, for Hawkins, the "guidelines no longer b[ou]nd the sentencing judge." Hawkins I, 706 F.3d at 822. In fact, post-Booker, the sentencing judge could not "even presume that a sentence within the applicable guidelines range would be proper," and was instead required to consider the sentencing factors in 18 U.S.C. § 3553(a), imposing a guidelines sentence only if appropriate after considering those factors. Hawkins I, 706 F.3d at 822 (emphasis in original) (citing Nelson v. United States, 555 U.S. 350, 351-52 (2009); Rita v. United States, 551 U.S. 338, 351 (2007)). According to the Hawkins I majority, Booker made all of the sentencing guidelines—including the career offender guidelines—"less important," insofar as it made them "merely advisory" and required an independent § 3553(a) analysis. Hawkins I, 706 F.3d at 822-23 (citing United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010) (en banc)). And so, where Hawkins was re-sentenced to the same 151-month sentence post-Booker, when the sentencing judge "well knew" that the guidelines were merely advisory, his sentence was not unlawful, unlike Narvaez's. Hawkins I, 706 F.3d at 823 (emphasis in original).
The Hawkins I majority explained further that the post-Booker misapplication of a guidelines range was not "corrigible" in a collateral challenge. Id. In reaching that conclusion, the Hawkins I majority noted that Hawkins' § 2255 motion could not succeed unless Chambers applied to his situation retroactively. See id. at 823-24 (citing Teague, 489 U.S. at 308-10). "[S]uch retroactivity is disfavored because it thwarts finality in the criminal process," and could require a huge amount of resentencings if § 2255 motions were corrigible whenever a higher court changed its interpretation of a guideline. Hawkins I, 706 F.3d at 824. Thus, the broad interest in finality of convictions—avoiding a flood of § 2255 motions whenever a court changed a guideline—was very high.
The Hawkins I majority used that interest in finality to distinguish Narvaez. It noted that "[f]inality is an important social value, but not important enough to subject a defendant to 'a punishment that the law cannot impose upon him'...such as a sentence that exceeds the statutory maximum sentence for his crime or a guidelines ceiling that has the force of a statute because the judge is forbidden to exceed it [i.e., a pre-Booker sentence]." Hawkins I, 706 F.3d at 824 (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004); citing Narvaez, 674 F.3d at 626; Welch, 604 F.3d at 413-14; United States v. Shipp, 589 F.3d 1084, 1089, 1091 (10th Cir. 2009)). In other words, the error in Narvaez—which induced the erroneous application of guidelines that had the force of law—was sufficient to overcome the interest in finality. See Hawkins I, 706 F.3d at 824. But, "[a]n error in the interpretation of a merely advisory guideline is less serious. Given the interest in finality, it is not a proper basis for voiding a punishment lawful when imposed." Id.
In doing so, the Hawkins I majority assumed, without explicitly stating, that a Supreme Court decision could be retroactive to a guidelines challenge in one instance (Narvaez) but not another (Hawkins I).
The Hawkins I majority went on to point out that the guidelines exert a "gravitational pull" on sentencing, such that the sentencing judge
might have given Hawkins a lower sentence had Chambers been decided earlier. But he would not have been required to do so and we don't think that a sentence that is well below the ceiling imposed by Congress whether directly or by delegation to the Sentencing Commission should, as Hawkins argues, be considered a "miscarriage of justice" that can be collaterally attacked, just because the judge committed a mistake en route to imposing it. That's the balance the cases strike between the interest in finality and the injustice of a possibly mistaken sentence.
In short, the single distinction between Narvaez and Hawkins—the advisory nature of the guidelines post-Booker—is material and prevented the award of § 2255 relief to Hawkins. And, unfortunately for Mr. Cummings, that is also precisely the same difference between him and Narvaez. Accordingly, Narvaez squarely forecloses the availability of relief to Mr. Cummings.
Judge Rovner, dissenting in Hawkins I, would have it the other way. Quoting from Narvaez, she asserted that the Narvaez court was much more concerned with the branding of a defendant as a career offender "'deserving of far greater punishment than that usually meted out for an otherwise similarly situated individual who had committed the same offense.'" Hawkins I, 706 F.3d at 826 (Rovner, J., dissenting) (quoting Narvaez, 674 F.3d at 629). Judge Rovner did not believe that the Narvaez court was "assuaged by the fact that the defendant's sentence fell below the applicable statutory maximum sentence." Hawkins I, 706 F.3d at 826. Instead, Judge Rovner believed that the illegality of Hawkins' sentence attached when the sentencing judge erred by designating Hawkins a career offender: in light of the powerful pull of the sentencing guidelines, Hawkins would almost assuredly not have received a 151-month sentence if the sentencing judge had applied the correct guidelines. Id. at 827-28. "It [was] one thing for a judge to say, five years later, that he would have sentenced Hawkins to 151 months regardless, and another for him to actually begin with a 15-21 month range and then decide to increase the sentence by another decade." Id. at 832.
Hawkins II. Several months after the Seventh Circuit issued Hawkins I, the Supreme Court issued Peugh, and Hawkins requested rehearing in light of Peugh. Hawkins II, 724 F.3d at 916. The Seventh Circuit issued a supplemental opinion ("Hawkins II"), denying the request for rehearing. Id. at 919. The panel split the same way as in Hawkins I, with Judge Posner writing the majority opinion for himself and Judge Kanne, against Hawkins' request for relief, and with Judge Rovner dissenting. See Hawkins II, 724 F.3d at 919.
The Hawkins II majority described Peugh's significance to Hawkins' case in the following way:
Peugh holds that a sentence violates the Constitution's ex post facto clause if in calculating the defendant's advisory guidelines range (as the judge is required to do even though he can if he wants sentence the defendant outside that range) the judge had calculated the range in effect when he sentenced the defendant, rather than when the defendant committed the crime for which he's being sentenced, if the earlier range was lower (less punitive). The arguable significance of Peugh for the
present case is that the Court held that an error in calculating a merely advisory guidelines range nevertheless invalidated the sentence.Hawkins II, 724 F.3d at 916 (internal citation omitted).
The Hawkins II majority determined that Peugh had no impact upon Hawkins' case for three reasons. First, "Peugh involved constitutional error—a violation of the ex post facto clause," whereas Hawkins I and Hawkins II involved only error in a guidelines calculation. Hawkins II, 724 F.3d at 916-17. Second, Peugh presented a direct appeal to the Supreme Court, and so the Supreme Court applied a lower standard of review than would be applicable to Hawkins (or to Mr. Cummings, here, for that matter). Third, the Supreme Court did not make Peugh retroactive, and in fact stated that "'failing to calculate the correct Guidelines range constitutes procedural error,'" Hawkins II, 724 F.3d at 917 (quoting Peugh, 133 S.Ct. at 2083), so, in the absence of a sentence above a statutory maximum (including a sentence exceeding pre-Booker guidelines, as in Narvaez), neither Peugh nor Chambers nor any other guidelines challenge would be corrigible, as none would rest upon retroactively-applicable law, see Hawkins II, 724 F.3d at 917-18.
The Court questions whether this remains a valid distinction after Johnson. Johnson held that the ACCA's residual clause was unconstitutionally vague, and so presumably Peugh allows a guidelines challenge to the constitutional vagueness of the career offender guideline. In other words, if it was constitutionally problematic in Peugh for a sentencing court to calculate a guidelines sentence using later-dated sentencing guidelines, then it seems equally constitutionally problematic to calculate a guidelines sentence using vague guidelines, as occurred in both Johnson's and Mr. Cummings' case. However, this distinction probably has no effect because Peugh has not been made retroactive. See, e.g., Herrera-Gomez v. United States, 755 F.3d 142 (2d Cir. 2014).
The Hawkins II majority concluded with an extensive discussion of the importance of finality, and the need to avoid retroactive application to guidelines challenges of cases like Peugh and Chambers—a range of cases that would presumably include Johnson. See Hawkins II, 724 F.3d at 918-19.
Judge Rovner filed a dissenting opinion, highlighting portions of Peugh that she believed conflicted with the majority's opinions in Hawkins I and Hawkins II. She pointed out that in Hawkins I, "[t]he one and only question for which we lacked a definitive answer was whether the holding in Narvaez could be applied in post-conviction cases after Booker—that is, when the Guidelines were no longer mandatory. In the panel opinion, this was the critical (and only) distinction between Narvaez and this case." Hawkins II, 724 F.3d at 919-20 (Rovner, J., dissenting). The Peugh decision, Judge Rovner said, "rejected just this distinction, instructing that the advisory nature of the Guidelines and the presence of discretion do not alleviate infirmities that arise when a sentencing court chooses the improper Guideline range as a starting point." Hawkins II, 724 F.3d at 920 (citing Peugh, 133 S.Ct. at 2086). Judge Rovner believed, based upon language from Peugh, that the guidelines were subject to review of the sort in Peugh given their extreme importance in today's sentencing regime: for various reasons, "[t]he effect of the Guidelines...is strong and anchoring." Hawkins II, 724 F.3d at 920 (citing Peugh, 133 S.Ct. at 2079, 2083, 2087; Gall v. United States, 552 U.S. 38, 49-50 (2007)). Given that powerful effect, Judge Rovner believed that Hawkins' claim should have been cognizable as a miscarriage of justice in § 2255 collateral proceedings. Hawkins II, 724 F.3d at 921-22. Judge Rovner then distinguished Peugh's statement regarding the procedural nature of guidelines challenges, and closed by arguing that Hawkins' interest in receiving a correct sentence should outweigh the majority's emphasis on finality. Hawkins II, 724 F.3d at 922-25.
After the Seventh Circuit issued Hawkins II, Hawkins requested rehearing en banc, which a divided panel denied. Hawkins III, 725 F.3d 680 (7th Cir. 2013). Five judges (Judges Posner, Easterbrook, Kanne, Sykes, and Tinder) opposed rehearing en banc; four judges (Judges Rovner, Hamilton, Williams, and Wood) favored it and dissented from the denial for the reasons that Judge Rovner laid out in her Hawkins II dissent. Hawkins III, 725 F.3d at 680. Notably, Judges Kanne and Sykes, both of whom were on the Narvaez panel, opposed rehearing Hawkins.
Coleman. The Seventh Circuit's denial of rehearing en banc in Hawkins effectively cemented the holdings of the two opinions from that case. Thus, in Coleman, when another case came before the Seventh Circuit presenting practically identical questions, the result was foregone: § 2255 relief was not available to remedy an error in career offender designation under the guidelines. See 763 F.3d at 711. Indeed, Judge Rovner, who had dissented in both Hawkins I and Hawkins II together with the denial of rehearing en banc, wrote for the unanimous court in Coleman, and agreed that Hawkins I and Hawkins II were the law of the circuit and compelled the denial of § 2255 relief. Coleman, 763 F.3d at 709-11.
Coleman presented the Seventh Circuit with a practically identical question to Hawkins I and Hawkins II, though from a slightly difference angle. Quadale Coleman pled guilty to possession with intent to distribute crack cocaine. Coleman, 763 F.3d at 707. He was subject to a 40-year maximum on that charge, as a result of the drug quantity. Id. The sentencing judge also determined that Coleman was a career offender under the guidelines as a result of two state convictions for possession with intent to distribute cocaine base and sexual assault of a child, respectively. Id. That career-offender designation resulted in a guideline range of 188-235 months; without the career-offender designation, Coleman would have been subject to a guideline range of 140-175 months. Id. The sentencing judge imposed a sentence of 225 months imprisonment, near the high end of the guideline range applicable as a result of the career-offender designation.
After the imposition of that sentence, the Seventh Circuit decided in United States v. McDonald that sexual assault of a child (at least of the sort that Coleman had been convicted of) could not form the basis for a guidelines career-offender designation following Begay. See Coleman, 763 F.3d at 707-08 (citing McDonald, 592 F.3d 808, 813-14 (7th Cir. 2010); Begay, 553 U.S. at 144-45). McDonald effectively undermined the basis for Coleman's designation as a career offender; if the sexual assault could not be counted as a violent crime, he did not qualify as a career offender.
On that basis, Coleman filed a § 2255 petition, and that is where his case deviated slightly from Hawkins I and Hawkins II: whereas the sentencing judge had denied Hawkins' § 2255 motions, Coleman's sentencing court actually granted his § 2255 motion. See Coleman, 763 F.3d at 707-08. And, following its grant of § 2255 relief, the sentencing court re-calculated Coleman's applicable guidelines range without the career-offender designation. Id. at 708.
Mr. Coleman's § 2255 motion was heard by a different district judge than had conducted the original sentencing. Coleman, 763 F.3d at 709.
The Government appealed, arguing that the two opinions from Hawkins squarely foreclosed Coleman's right to § 2255 relief; the Coleman court agreed. Coleman, 763 F.3d at 708-11. First, it found that the reasoning of Hawkins I and Hawkins II was both on point and the binding law of the circuit. Coleman, 763 F.3d at 708-09. Second, it found that there was not yet a split in circuit authority on the holding in the Hawkins opinions. Coleman, 763 F.3d at 709. While panel opinions from the Fourth Circuit and Eleventh Circuit had reached contrary holdings, those opinions had been vacated for rehearing en banc; meanwhile, the Eighth Circuit had expressly agreed with the Hawkins opinions in an en banc decision. Coleman, 763 F.3d at 709 (citing Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014) (vacated for rehearing en banc); Spencer v. United States, 727 F.3d 1076 (11th Cir. 2013) (vacated for rehearing en banc); Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc)). Third, the fact that the sentencing court had actually imposed a lower sentence at Coleman's resentencing did not make any difference. Coleman, 763 F.3d at 709-10. On that point, the Coleman court pointed out that even if Coleman had been given a lower sentence, thereby implying that his original sentence was not harmless, the Hawkins opinions would still foreclose § 2255 relief in cases like Coleman's regardless of the harm. Coleman, 763 F.3d at 710. And, after dispatching several other minor differences, the Coleman court ultimately sided with the Government, holding that the Hawkins opinions controlled and prohibited § 2255 relief to Coleman on the basis of the guidelines' career-offender designation. Coleman, 763 F.3d at 710-11.
And this does not mention several facts that would undermine the harmfulness analysis: (1) that the resentencing judge was different than the original sentencing judge; (2) that the resentencing judge considered information about the defendant's post-conviction activities, which would not have been available to the original sentencing judge; and (3) that the resentencing judge expressed serious concerns about the "disturbing" nature of the defendant's sexual assault conviction. Coleman, 763 F.3d at 709-10.
Synthesis. So, where does Mr. Cummings' request for relief stand in light of the Seventh Circuit's opinions in Narvaez, Hawkins, and Coleman?
Quite clearly, the two Hawkins opinions, as reaffirmed in Coleman, absolutely prevent this Court from granting Mr. Cummings' § 2255 motion. Narvaez does not apply, because: (1) Mr. Cummings was sentenced post-Booker; and (2) Mr. Cummings was subject to a 20-year maximum, see 21 U.S.C. § 841(b)(1)(C), and therefore his 180-month sentence is not unlawful. See Hawkins I, 706 F.3d at 823-25 (distinguishing Narvaez in practically-identical circumstances). And, in Narvaez's absence, the panel opinions in Hawkins and Coleman fill the void, holding that § 2255 relief is not corrigible in the precise circumstances Mr. Cummings presents.
That is unfortunate because it leaves Mr. Cummings with a sentence that he does not deserve under the law as it now stands. The Court would certainly resentence Mr. Cummings to a lower sentence if able to now, knowing that a much lower guideline range would apply because Mr. Cummings would no longer be a career offender. The interest in finality would not seem to this Court to outweigh a sentence that is approximately six times too high, when Johnson strongly implies that the basis for that sentence—the career offender guideline—is probably unconstitutionally vague.
The Court also points out that the interest in finality did not prohibit the correction of an improperly-imposed guidelines sentence in Purvis v. United States, 662 F.3d 939, 942 (7th Cir. 2011) (relying on Johnson v. United States, 544 U.S. 295, 302 (2005) (entirely different from the Johnson decision that forms the basis for the motion now before the Court), to allow resentencing where the fact of an underlying conviction was undermined when that underlying conviction was vacated—as opposed to the legal status of an underlying conviction being altered, as is the case here).
If the Court had used the correct guideline range, Mr. Cummings would have been subject to a maximum of 30 months, or one-sixth of the 180-month sentence the Court actually imposed.
Nonetheless, this may not be the end of the line for Mr. Cummings. To begin, the Court points out that a panel from the Third Circuit has reached a decision contrary to the Hawkins majorities and more in line with Narvaez and Judge Rovner's Hawkins dissents. United States v. Doe, 810 F.3d 132, 157, 159-60 (3d Cir. 2015). Indeed, this Court finds Judge Rovner's two Hawkins dissents to be extremely persuasive. Moreover, Narvaez, Hawkins, and Coleman were all decided pre-Johnson. And it is simply unclear, at this juncture, just how far Johnson will reach. Johnson could represent a seismic shift for the guidelines, both going forward and on collateral review. Or, Johnson could have no retroactive application to prior career offender guideline determinations. Simply put, there is ample room for disagreement amongst reasonable jurists on this issue, and Johnson has only complicated matters further. In the end, the Seventh Circuit and, perhaps, the Supreme Court will have to sort everything out.
Still, the great weight of authority from the circuits falls most closely in line with the opinions in Hawkins. See, e.g., Whiteside v. United States, 775 F.3d 180 (4th Cir. 2010) (en banc); Sun Bear, 611 F.3d at 931; Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc); Spencer v. United States, 773 F.3d 1132 (11th Cir. 2011) (en banc). However, with that said, the Court notes that each of those en banc decisions carried vigorous dissents and were decided pre-Johnson.
The Sentencing Commission seems to believe so, in light of its attempts to revise the career offender guideline, although this is of little solace to Mr. Cummings.
In light of the unsettled nature of the issues under consideration, the Court will grant a certificate of appealability ("COA") to Mr. Cummings. See Rule 11 of the Rules Governing § 2255 Cases in the United States District Courts. The Court should grant Mr. Cummings a COA if it finds that he "has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), such 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). Clearly, in this case, reasonable jurists could disagree over whether Mr. Cummings' Johnson claim is cognizable on direct appeal (with the retroactivity of Johnson to collateral guidelines challenges subsumed in that question). If so, he is almost certainly entitled to relief, and this Court stands ready to resentence him, most likely to a sentence that would result in immediate release in light of a significantly lower guideline sentencing range.
It seems that the Seventh Circuit would not find Johnson to be retroactive under the same sort of cognizability analysis used in both Hawkins opinions. And this lack of retroactivity could flow backwards to infect the timeliness of Mr. Cummings petition, see 28 U.S.C. § 2255(f)(3), and also prevent application of the cause-and-prejudice exception to his procedural default under Reed (as in that case, cause for actual futility appears to require a retroactively-applicable decision of the Supreme Court). --------
5. CONCLUSION
For the foregoing reasons, the Court is obliged to deny Mr. Cummings' § 2255 motion. Nonetheless, finding that Mr. Cummings' arguments clearly deserves encouragement to proceed further, the Court will grant him a certificate of appealability.
Finally, having reached its decision on Mr. Cummings' § 2255 motion purely on the legal merits of his argument, the Court does not need to hold a hearing. It will, therefore, deny Mr. Cummings' motion for a hearing. (Docket #8).
Accordingly,
IT IS ORDERED that Mr. Cummings' 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 a certificate of appealability be and the same is hereby GRANTED as more fully discussed in the body of the Court's order;
IT IS FURTHER ORDERED that Mr. Cummings' motion for a hearing (Docket #8) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is hereby DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of February, 2016.
BY THE COURT:
/s/_________
J.P. Stadtmueller
U.S. District Judge
| ACCA Challenge | Guidelines Challenge | |
|---|---|---|
| Direct Review | Johnson applies | Johnson applies |
| Collateral Review | Johnson applies | Johnson does not apply |
Hawkins I, 706 F.3d at 825 (emphasis added) (citing United States v. Addonizio, 442 U.S. 178, 186 (1979); United States v. Timmreck, 441 U.S. 780, 784 (1979); Hill v. United States, 368 U.S. 424, 428 (1962); Scott, 997 F.2d at 342; United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)). The Hawkins I majority acknowledged that Hawkins' sentence was erroneous and probably would have been corrected on direct review, "[b]ut reversible on appeal doesn't mean reversible in postconviction proceedings." Hawkins I, 706 F.3d at 825.