Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence and Denying a Certificate of Appealability

JANE MAGNUS-STINSON, Chief District Judge.

After counsel withdrew, the petitioner filed a pro se amended motion for relief pursuant to 28 U.S.C. § 2255 arguing that, under Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence was unconstitutionally enhanced and he must be resentenced. For the reasons stated below, the motion for relief is denied and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.

Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the motion, and any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." 28 U.S.C. § 2255 permits a federal court to grant relief "if it finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack."

Background

The Seventh Circuit summarized this case on direct appeal as follows:

United States v. Graves, 418 F.3d 739, 742 (7th Cir. 2005). The Seventh Circuit held that the district court erred by sentencing Graves under the defunct mandatory guidelines scheme. Graves's sentence was vacated and the case was remanded for resentencing with the understanding that the sentence guidelines are advisory. Id. at 746.

Judge Hamilton resentenced Graves on November 28, 2005. This resentencing was done with the understanding that courts "give `respectful consideration' to the now-advisory Guidelines (and their accompanying policy statements)," Pepper v. United States, 562 U.S. 476, 501 (2011) (quoting Kimbrough v. United States, 552 U.S. 85, 101, (2007)), but "may in appropriate cases impose a non-Guidelines sentence," id. (citing Kimbrough, 552 U.S. at 109-10). Once again, the district court sentenced Graves to 360 months on each count, to be served concurrently. An Amended Judgment was entered on November 30, 2005. Graves appealed without success. The Seventh Circuit affirmed the judgment of the district court in a Mandate received on July 17, 2006.

Discussion

Johnson held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Graves now argues that because the residual clause of the ACCA is unconstitutionally vague, it follows that the identical residual clause in the career offender provision of the Sentencing Guidelines is also unconstitutionally vague. The Seventh Circuit authorized this Court to consider Graves's Johnson claim brought in a successive motion to vacate under § 2255.

After this authorization was granted, the United States Supreme Court held in Beckles v. United States, 137 S.Ct. 886 (2017), that "the advisory [Sentencing] Guidelines are not subject to vagueness challenges under the Due Process Clause." Beckles, 137 S.Ct. at 890 (emphasis added). The use of the term "advisory" is critical. Until the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines had been mandatory. Beckles makes clear that if Petitioner had been sentenced as a Career Offender after the 2005 Booker decision, the Johnson authorities would not assist him in obtaining relief now.

As noted above, post-Booker Graves was specifically granted a resentencing by the Seventh Circuit to ensure that the guidelines were treated as merely advisory. As a result, the holding of Johnson does not apply to cases, like Graves's, challenging advisory guideline calculations.

Graves was given the opportunity to file a brief in support of his § 2255 motion after his counsel withdrew, but his brief does not advance his claims. In addition to the assertion that his sentence was imposed pre-Booker (it was not), Graves argues that the Sentencing Guidelines were still mandatory until Kimbrough v. United States, was decided in 2007. The petitioner is mistaken. The Supreme Court in Kimbrough held that the cocaine Guidelines, like all other Guidelines, are only advisory. In other words, the Sentencing Guidelines were advisory after Booker and nothing in Kimbrough changed that. The Court further notes that Graves's Sentencing Guideline range was not the result of the amount of cocaine base involved in the offense. Instead, his guideline range was based on the Career Offender guideline (§ 4B1.1). See Order Regarding Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2), 1:02-cr-127-JMS-KPF, dkt [4].

The Court now dismisses this action pursuant to Rule 4 because the holding in Beckles forecloses the petitioner's challenge to the enhancement of his sentence under the Sentencing Guidelines.

Judgment consistent with this Entry shall now issue and a copy of this Entry shall be docketed in No. 1:02-cr-0127-JMS-KPF-1.

Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that the petitioner has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability.