United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
matter is before the Court on the Motion to Correct Sentence
Under 28 U.S.C. § 2255, filed by Antonio Gudino
(“Gudino”) on June 21, 2016 (DE #1302). For the
reasons set forth below, the motion is
plead guilty to conspiring to participate in racketeering
activity, in violation of 18 U.S.C. § 1962(d). This
court determined that he was a career offender under United
States Sentencing Guideline sections 4B1.1 and 4B1.2 because
he had prior convictions for crimes of violence; namely,
criminal recklessness and residential entry. He was sentenced
to 175 months of incarceration.
the Supreme Court of the United States analyzed whether the
residual clause of the Armed Career Criminal Act
(“ACCA”) is void for vagueness. Johnson v.
United States, 35 S.Ct. 2551');">135 S.Ct. 2551 (2015). As Justice Scalia
Under the Armed Career Criminal Act of 1984, a defendant
convicted of being a felon in possession of a firearm faces
more severe punishment if he has three or more previous
convictions for a “violent felony, ” a term
defined to include any felony that “involves conduct
that presents a serious potential risk of physical injury to
another.” 18 U.S.C. §924(e)(2)(B). We must decide
whether this part of the definition of a violent felony
survives the Constitution's prohibition of vague criminal
Id. at 2555. Ultimately, the Supreme Court held that
“imposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process.”
Id. at 2563. It therefore overruled its prior
decision in Sykes v. United States, 131 S.Ct. 2267
(2011), and held that the residual clause of the definition
of violent felony in the ACCA was unconstitutionally vague.
Johnson, 135 S.Ct. at 2563. The Johnson
decision is retroactive on both direct appeal and collateral
review. Price v. United States, 795 F.3d 731, 732
(7th Cir. 2015). In light of Johnson v. United
States, ___ U.S. ___, 35 S.Ct. 2551 (June 26, 2015), the
Seventh Circuit granted Gudino leave to file the instant
successive motion to vacate under § 2255.
this Court found Gudino was a career offender under Guideline
sections 4B1.1 and 4B1.2, Gudino was not sentenced as an
armed career criminal under the ACCA. Accordingly,
Gudino's Johnson argument can only prevail if
the decision in Johnson is applicable to the similar
language of the Guidelines under which Gudino was sentenced.
precisely that issue was raised by a case then pending before
the Supreme Court, the Government sought a stay of these
proceedings pending a determination by the Supreme Court of
whether Johnson applies on collateral review to
nearly identical language found in the Guidelines. (DE
#1321). The stay was granted. On March 6, 2017, the Supreme
Court decided Beckles v. United States, 137 S.Ct.
886 (2017). The Court in Beckles determined that the
holding in Johnson did not extent to the Guideline
provisions under which Gudino was found to be a career
offender. As the Court noted:
Unlike the ACCA, however, the advisory Guidelines do not fix
the permissible range of sentences. To the contrary, they
merely guide the exercise of a court's discretion in
choosing an appropriate sentence within the statutory range.
Accordingly, the Guidelines are not subject to a vagueness
challenge under the Due Process Clause. The residual clause
in 4B1.2(a)(2) therefore is not void for vagueness.
Id. at 892. Following Beckles, the stay was
lifted and the parties were granted an opportunity to file
additional briefs. The matter is now ripe for adjudication.
In light of Beckles, the Court's ruling in
Johnson is inapplicable to Gudino, and his Motion to
Correct Sentence Under 28 U.S.C. § 2255 (DE #1302) is
to Rule 11 of the Rules Governing Section 2255 Proceedings, a
district court must “issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” A certificate of appealability may issue
only if the applicant “has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make such a showing, a defendant must
show that “reasonable jurists could debate whether (or,
for that matter, agree that) the motion should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 475
(U.S. 2000) (internal quotation marks and citation omitted).
Gudino has not stated any grounds for relief under section
2255. The Court finds no basis for a determination that
reasonable jurists would find this decision debatable or
incorrect or that the issues deserve encouragement to proceed
further. Therefore, the Court DECLINES to issue a certificate
Clerk is ORDERED to DISMISS this civil action WITH PREJUDICE.
The Clerk is FURTHER ORDERED to distribute a copy of this
order to Petitioner (Inmate Reg. No. 11907-027), McCreary
USP, U.S. Penitentiary, Inmate Mail/Parcels, P.C. Box 3000,
Pine Knot, KY ...