United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT
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.
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.
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.
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
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).
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.
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).
Jennings's petition, amended to incorporate the
Johnson- and vacatur-based ...