United States District Court, S.D. Indiana, Indianapolis Division
DANNYE T. MCINTOSH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
Jane Magnus-Stinson, Chief Judge.
Seventh Circuit authorized Petitioner Dannye McIntosh to
bring a second or successive motion to vacate under 28 U.S.C.
§ 2255 in order to challenge his sentence based on the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). The Court appointed
counsel for the petitioner, but the petitioner's counsel
eventually withdrew. The Court then ordered Mr. McIntosh to
show cause why his challenge to the determination that he was
a career offender under the United States Sentencing
Guidelines (“USSG” or “Guidelines”))
was not foreclosed by Beckles v. United States, 137
S.Ct. 886 (2017). Mr. McIntosh filed a pro se brief
arguing that Beckles does not foreclose his claim.
The respondent filed a response brief and Mr. McIntosh
replied. For the reasons stated below, Mr. McIntosh's
motion to vacate under § 2255 is
Court begins with Johnson. The Seventh Circuit
summarized Johnson's holding as follows:
Johnson holds that part of 18 U.S.C. §
924(e)(2)(B)(ii) is unconstitutional. . . . The statute
defines some of these categories and adds a kicker in clause
(ii), which classifies as a violent felony any crime that
“is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”.
The part of clause (ii) that begins “or otherwise
involves” is known as the residual clause.
Johnson holds that the residual clause is
Stanley v. United States, 827 F.3d 562, 564 (7th
Cir. 2016). Although a similar residual clause appears in the
career offender provision, USSG § 4B1.2(a)(2), the
Supreme Court in Beckles held that “that the
advisory Guidelines are not subject to vagueness challenges
under the Due Process Clause.” 137 S.Ct. at 890. And
the Guidelines have been advisory since the Supreme
Court's decision in United States v. Booker, 543
U.S. 220 (2005).
parties both acknowledge that Mr. McIntosh was sentenced in
March 2006 under the career-offender provision, which means
he was sentenced post-Booker when the Guidelines
were advisory. See United States v. Black, 2007 WL
959411 (7th Cir. Mar. 30, 2007) (discussing, in the
petitioner's direct appeal, his challenge to his sentence
under the career-offender provision). Despite the holding in
Beckles that vagueness challenges to the advisory
Guidelines are unavailable, Mr. McIntosh maintains that he
can still challenge his career-offender sentence because
Seventh Circuit precedent rendered career-offender sentences
mandatory until the Seventh Circuit's decision in
United States v. Corner, 589 F.3d 411 (7th Cir.
2010) (en banc).
Seventh Circuit recently rejected almost the exact argument
advanced by Mr. McIntosh here. See Perry v. United
States, ___ F.3d ___, 2017 WL 6379634 (7th Cir. Dec. 14,
2017). In Perry, the petitioner argued that the
Seventh Circuit's decisions in United States v.
Harris, 536 F.3d 798 (7th Cir. 2008), and United
States v. Welton, 583 F.3d 494 (7th Cir. 2009), made the
career-offender provision mandatory, despite the Supreme
Court's holding in Booker. It was not until the
Seventh Circuit's decision in Corner, the
petitioner in Perry argued, that the career-offender
provision was truly advisory.
argument was rejected on two independent grounds. First, the
Seventh Circuit noted that the short-lived holdings of
Harris and Welton-decided in 2008 and
2009-could not have impacted the petitioner's sentencing
in 2007. Perry, 2017 WL 6379634, at *3. The same is
true here, as Mr. McIntosh was sentenced in 2006.
the Seventh Circuit reasoned that even if a defendant was
sentenced when Welton was binding precedent, the
Perry petitioner's argument would still fail
because “[n]o mistaken circuit court decision could
alter the legal force of Booker. Once the Supreme
Court declared the guidelines advisory, they remained
advisory notwithstanding some erroneous applications in the
district and circuit courts.” Id. The avenue
for relief post-Booker if a defendant thought he was
erroneously sentenced under a mandatory enhancement was to
raise that challenge on direct appeal, just as “[t]he
defendants in Harris, Welton, and
Corner” did “to correct perceived legal
errors in sentencing.” Id. The same is true
for Mr. McIntosh who filed a direct appeal challenging his
sentence, but did not argue that his career-offender
enhancement was mandatorily applied. See Black, 2007
WL 959411, at *4.
Seventh Circuit in Perry concluded that
“[b]ecause the guidelines were and remained advisory at
the time of [the petitioner's] sentencing [in 2007], his
vagueness challenge to the career offender guideline fails as
applied at his sentencing.” 2017 WL 6379634, at *3. If
this was true for the petitioner in Perry, it is
equally true for Mr. McIntosh who was sentenced in 2006.
Accordingly, because Perry makes clear that Mr.
McIntosh's theory of why Beckles does not
foreclose his challenge to his career-offender enhancement
lacks merit, Mr. McIntosh's claim is foreclosed by
McIntosh's motion to vacate under 28 U.S.C. § 2255
is denied for the reasons explained above.
Judgment consistent with this Entry shall now issue.
Entry shall also be entered on the docket in the underlying