United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE AND DENYING A CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE
Perez-Silva filed a successive motion for relief pursuant to
28 U.S.C. § 2255 arguing that under Johnson v.
United States, 135 S.Ct. 2551 (2015), the sentence he
received in Case Number 1:02-cr-0054-TWP-TAB-1 was
unconstitutionally enhanced and that he must be resentenced.
On June 24, 2016, the Seventh Circuit authorized this Court
to consider Perez-Silva's Johnson claim, along
with the government's defenses pursuant to 28 U.S.C.
§ 2244(b)(3). The § 2255 motion is now fully
briefed. For the reasons explained below, the motion for
relief is denied and a certificate of
appealability shall not issue.
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 attack.” In July 2003, Perez-Silva
pleaded guilty to possession of 500 grams of cocaine with
intent to distribute, and being a felon who possessed a
firearm. The Honorable Judge David Hamilton sentenced
Perez-Silva in September 2003, to 262 months on the drug
charge and 120 months on the firearm charge. The sentences
were ordered to be served concurrently. Judgment was entered
on September 19, 2003.
26, 2015, the Supreme Court held that the
“residual” clause of the Armed Career Criminal
Act (“ACCA”) was unconstitutional based on
vagueness. Johnson, 135 S.Ct. 2551. Johnson
was determined to announce a new substantive rule of
constitutional law that applies retroactively to ACCA
defendants. Welch v. United States, 136 S.Ct. 1257
(2016). Thus, only prior convictions that qualify as violent
felonies under the “enumerated offenses” clause
or “force” clause of the ACCA can be used to
enhance a sentence under that statute. Perez-Silva, however,
was not sentenced under the ACCA.
determining Perez-Silva's sentence, the 2002 version of
the then-mandatory United States Sentencing Guidelines
(“U.S.S.G”) was utilized. Perez-Silva's
sentence was enhanced under U.S.S.G. § 4B1.1. See crim.
dkt. 18. Section 4B1.1 states:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence
or a controlled substance offense; and (3)
the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance
See 2002 Guidelines Manual available at:
(last visited April 19, 2018) (emphasis added). “Until
2016, the career offender guideline, U.S.S.G. §
4B1.2(a), used a definition of a “crime of
violence” that included a “residual clause”
that mirrored the “violent felony” definition in
the Armed Career Criminal Act of 1984, 18 U.S.C. §
924(e)(2)(B).” Perry v. United States, 877
F.3d 751 (7th Cir. 2017).
enhancement under the then-mandatory sentencing guidelines
was not based on a finding that he had committed a crime of
violence. Instead his sentence was enhanced based on his
three convictions for the sale of a controlled
substance. Unfortunately for Perez-Silva, under these
circumstances the holding in Johnson does not
provide him any relief. His motion for relief pursuant to 28
U.S.C. § 2255 is denied.
consistent with this Entry shall now issue and a copy
of this Entry shall be docketed in
to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of
the Rules Governing § 2255 proceedings, and 28 U.S.C.
§ 2253(c), the court finds that the petitioner has
failed to show that reasonable jurists would find “it
debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Court therefore denies a certificate of