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Jennings v. United States

United States District Court, N.D. Indiana, South Bend Division

December 12, 2016

KEITH ABDUL JENNINGS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT

         Keith Abdul Jennings was sentenced to thirty years' imprisonment after being convicted of possessing with intent to distribute at least five grams of crack cocaine. 21 U.S.C. § 841(a)(1). This matter is before the court on Mr. Jennings's motion to vacate and correct his sentence under 28 U.S.C. § 2255. The court grants Mr. Jennings's motion.

         I. Background

         A jury convicted Mr. Jennings of possessing with intent to distribute at least five grams of crack cocaine. 21 U.S.C. § 841(a)(1). He had two relevant prior felony convictions, one for an identical offense and another for resisting law enforcement while “operat[ing] a vehicle in a manner that creates a substantial risk of bodily injury to another person.” Ind. Code § 35-44-3-3(b)(1) (1996). At sentencing, the court considered the former to be a “controlled substance offense.” U.S.S.G. § 4B1.2(b). Over Mr. Jennings's objection, the court considered the latter to be a “crime of violence” because it “involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). The prior convictions enhanced Mr. Jennings's recommended sentence under the Federal Sentencing Guidelines to that of a “career offender.” His base offense level increased from 26 to 37. U.S.S.G. § 4B1.1. Instead of a sentence of 120 to 150 months, the guidelines recommended a sentence of 360 months to life. U.S.S.G. § 5A. The court sentenced Mr. Jennings to 360 months.

         The court of appeals district court's determination that Mr. Jennings's prior offense of resisting law enforcement is a “crime of violence.” United States v. Jennings, 544 F.3d 815 (7th Cir. 2008). Mr. Jennings then filed a motion to vacate his sentence under 28 U.S.C. § 2255 on grounds that he was sentenced before Rita v. United States, 551 U.S. 338 (2007), which held that a court can't presume a guideline recommendation to be reasonable. This court held that Rita doesn't apply retroactively and that his counsel wasn't ineffective for not raising the Rita issue at sentencing. This court and the court of appeals denied a certificate of appealability. 28 U.S.C. § 2253.

         Mr. Jennings then filed a motion to vacate under 28 U.S.C. § 2241 in the United States District Court for the Southern District of Indiana, where he was incarcerated. While that motion was pending, the State of Indiana reduced his prior conviction for resisting law enforcement from a felony to a misdemeanor.

         Also while that motion was pending, on June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act, which imposes a fifteen-year mandatory minimum sentence for a defendant who committed three prior “violent felonies.” The statute defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known as the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the “residual clause”];

18 U.S.C. § 924(e)(2)(B). Johnson held that the residual clause is unconstitutionally vague under the Due Process Clause, U.S. Const. amend. V. Johnson announced a substantive rule retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Mr. Jennings wasn't sentenced under the residual clause of the ACCA definition of “violent felony, ” but under identical language in the guidelines definition of “crime of violence, ” U.S.S.G. § 4B1.2. The district court denied his § 2241 motion because Mr. Jennings had an adequate and meaningful remedy to file a second or successive § 2255 motion based on Johnson and Welch.

         Mr. Jennings sought permission from the court of appeals to file a second or successive § 2255 motion. He argued that, after Johnson, the residual clause of the guidelines' definition of “crime of violence” is unconstitutionally vague, so he shouldn't have been treated as a career offender and ought to be resentenced. The court of appeals granted permission. He then moved that the court of appeals amend its order granting permission to include Mr. Jennings's claim based on the vacatur of his prior felony conviction for resisting law enforcement. The court of appeals treated his motion as “a petition for rehearing” on “[t]he grant . . . of an authorization, ” which is prohibited under 28 U.S.C. § 2244(b)(3)(E). It suggested that Mr. Jennings amend his motion in this court to add on the vacatur-based claim, citing United States v. McDonald, 641 F.3d 596, 615-616 (4th Cir. 2011).

         Mr. Jennings's petition, amended to incorporate the Johnson- and vacatur-based ...


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