United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISMISSING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE AND DENYING A CERTIFICATE OF
Jane Magnus-Stinson, Chief Judge
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
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
Seventh Circuit summarized this case on direct appeal as
On March 29, 2002, Curtis Graves sold 72 grams of crack
cocaine to Tona Jones. Unfortunately for Graves, Jones was
working as an informant for the FBI Safe Streets Task Force
at the time of the controlled purchase. Jones was wearing a
tape-recording device and the sales transaction between
Graves and Jones was observed by law enforcement officers.
The recorded conversation included statements by Graves
saying that he was “cooking all this dope” and
that Jones should let it dry before use. On April 15, 2002,
Jones made a second controlled purchase of crack cocaine from
Graves, this time buying more than 110 grams.
Graves was charged with two counts of distributing 50 or more
grams of crack cocaine. See 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(iii). At trial, the government
presented testimony from the FBI officers who had worked with
Jones and observed the drug purchases. The recorded
conversations between Graves and Jones were played for the
jury. On February 3, 2004, one day after the trial began, a
jury convicted Graves on both counts.
At sentencing, the district court found that based on the
quantity of drugs sold, Graves's base offense level was
34. The court then found that Graves was a career offender
according to U.S.S.G. § 4B1.1. This enhancement
increased the offense level to 37 and, combined with a
criminal history category VI, led to a sentencing range of
360 months to life. The court sentenced Graves to 360 months
on each count, to be served concurrently.
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.
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.
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.
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.
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