Oliea v. Kallis

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

MARIO OLIEA, )

)

Petitioner, )

)

v. ) No. 17-cv-3007

)

STEVE KALLIS, Warden )

)

Respondent. )

ORDER AND OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

Before the Court is Magistrate Judge Tom Schanzle-Haskins’

Report and Recommendation (d/e 8), which recommends denying

Petitioner Mario Oliea’s Petition for Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2241 (d/e 1), and Petitioner’s Objections to the

Report (d/e 11). For the reasons set forth below, the Court

OVERRULES Petitioner’s Objections (d/e 11), ADOPTS the

conclusion of Magistrate Judge Schanzle-Haskins’ Report and

Recommendation (d/e 8), as modified below, and DISMISSES

Petitioner’s Petition (d/e 1) pursuant to 28 U.S.C. § 2255(e).

I. BACKGROUND

The relevant facts were fully set forth in the “Statement of

Facts” section of the Report and Recommendation, which the Court

adopts. In 2007, Oliea pled guilty to two counts of possession with

intent to distribute a substance containing five or more grams of

cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B). United States v. Oliea, United States District Court,

Central District of Illinois, Springfield Division, Case No. 07-cr-

30033 (hereinafter “Crim.”), Notice of Plea (d/e 10).

Prior to the guilty plea, the Government had filed a Notice

pursuant to 18 U.S.C. § 851, which stated that Oliea had two prior

felony convictions in Illinois for manufacture/delivery of controlled

substances in violation of 720 ILCS 570/401. See Crim., Notice

(d/e 9). Specifically, the Notice stated he was convicted of

manufacture/delivery of a controlled substance in violation of 720

ILCS 570/401(c)(2), in Sangamon County, Illinois, Case No. 2002-

CF-967, and of manufacture/delivery of a controlled substance

within 1000 feet of a church in violation of 720 ILCS 570/407(b)(2)

(which addresses violations of 720 ILCS 570/401(d) that are within

1000 feet of a church), in Sangamon County, Illinois, Case No.

2003-CF-789. Id.; Resp. App. 45, 49 (d/e 3-1). Both of these

convictions involved cocaine. See Crim., PSR ¶¶34, 39, (d/e 17).

Additionally, not listed on the Notice, Oliea has a second conviction

for manufacture/delivery of a controlled substance within 1000 feet

of a church in violation of 720 ILCS 570/407(b)(2), in Sangamon

County, Illinois, Case No. 2003-CF-792.

The Court notes that Oliea claims that the Report and

Recommendation “erroneously states and/or implies the Petitioner’s

second conviction under 720 ILCS 570/401 is for cocaine as

opposed to crack cocaine.” Pet. Objs. at 2 (d/e 11). The Report and

Recommendation says “[i]n the second case, Oliea delivered less

than a gram of substance containing cocaine to a police officer.”

R&R at 2 (d/e 8). The Court finds no error in this language, as it

was taken directly from the Presentence Investigation Report, as

well as the Indictment in his state court case. See Crim., PSR at

¶ 39; Resp. App. 50-51 (d/e 3). Moreover, this fact has no impact

on the resolution of this case.

In light of the § 851 Notice, as well as the weight of the drugs

involved, Oliea faced a statutory imprisonment range of 10 years to

life imprisonment for each of the two counts. See 21 U.S.C.

§ § 841(b)(1)(B). Without the § 851 Notice, Oliea would have only

been subject to a statutory minimum of 5 years’ imprisonment and

a maximum of 40 years’ imprisonment.

The U.S. Probation Office prepared a Presentence Investigation

Report. Crim., PSR (d/e 17). The PSR found that his two

convictions for manufacture/delivery of a controlled substance were

“controlled substance offenses” as defined in U.S.S.G. § 4B1.2,

making Oliea qualify as a Career Offender pursuant to U.S.S.G.

§ 4B1.1(a). Id. ¶26. Accordingly, the PSR concluded that his

advisory sentencing guideline range was 262 to 327 months’

imprisonment. Id. ¶88.

There were no objections to the PSR, and the Court adopted its

findings. See Crim., Oct. 29, 2007 Minute Entry. On October 29,

2007, Oliea was sentenced to 262 months’ imprisonment on each

count to run concurrently. Id.; Crim., Judgment (d/e 13). He did

not appeal his sentence.

As detailed in the Report and Recommendation, since Oliea’s

sentencing, there have been a number of revisions to both the

Sentencing Guidelines and 21 U.S.C. § 841(b)(1) that reduced the

applicable sentencing ranges for offenses involving crack cocaine

like Oliea’s. R&R at 4-5 (d/e 8). At the time of filing this Petition,

Oliea had filed numerous motions to reduce his sentence in light of

these changes, but they had all been denied because the Court

found that his sentence was based on the finding that he was a

Career Offender, not on the quantity of cocaine for which he was

held responsible. Id.

In January 2017, Oliea brought this Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2241. He argues that, in light of

Descamps v. United States, 570 U.S. 254 (2013), and Mathis v.

United States, 136 S.Ct. 2243 (2016), the sentencing court

incorrectly interpreted the Career Offender Guidelines. Specifically,

he argues that under Descamps and Mathis, neither of his two prior

Illinois felony convictions for manufacture/delivery of a controlled

substance was a “controlled substance offense” under U.S.S.G.

§ 4B1.1, as defined in § 4B1.2. Oliea also argues his convictions do

not qualify as “felony drug offenses” as defined in 21 U.S.C.

§ 802(44) and, therefore, he should not have received the statutory

enhancement under 21 U.S.C. § 841(b)(1)(B).

Respondent filed his response (d/e 3), and Oliea filed a reply

(d/e 6). The petition was then referred to Magistrate Judge Tom

Schanzle-Haskins, who has recommended that the Petition be

dismissed because Oliea has not shown that there has been a

miscarriage of justice. R&R (d/e 8).

Oliea objected to the Report and Recommendation on four

grounds. Pet. Objs. (d/e 11). First, Oliea objects to the description

of his second conviction under 720 ILCS 570/401 to the extent it

implies it is for cocaine as opposed to crack cocaine, as addressed

above. Oliea argues in his second and third objections that the

Magistrate Judge’s analysis failed to compare 720 ILCS 570/401’s

“cocaine element” against the federal definition of “cocaine,” and

that the state definition is broader than the federal definition.

Finally, as his fourth abjection, Oliea argues the Magistrate Judge

was wrong in his conclusion that 720 ILCS 570/401’s “cocaine

element” “is divisible from any cocaine analog” because “Illinois’

definition includes chemically equivalent analogs within a single

indivisible definition of cocaine.” Pet. Objs. at 2-5 (d/e 11).

Petitioner has also filed two supplemental notices (d/e 15 and 16)

seeking to rely on United States v. Elder, 900 F.3d 491 (7th Cir.

2018), and Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018).

Since briefing concluded in this case, however, Oliea has

sought and obtained relief under Section 404 of the First Step Act of

2018 in the sentencing court. See Crim., Motion to Reduce

Sentence (d/e 45). In 2010, Congress passed the Fair Sentencing

Act of 2010 to reduce the sentencing disparity between crack and

powder cocaine offenses. The First Step Act gave sentencing courts

discretion to resentence individuals such as Oliea, who had been

sentenced prior to the Fair Sentencing Act. Under the new

statutory sentencing range, due to the weight of the drugs involved,

Oliea was eligible to be sentenced pursuant to a statutory range of 0

to 30 years. See 21 U.S.C. § 841(b)(1)(C) (“If any person commits

such a violation after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years.”). His new advisory

guideline range was 188 to 235 months’ imprisonment. Under the

new statutory sentencing ranges, were the § 851 Notice and

statutory enhancement not to apply, as he argues in this Petition,

the statutory range is 0 to 20 years. Id.

Oliea, through counsel, argued he should receive a below

guidelines sentence of time served. Crim., Mot. to Reduce Sent.

(d/e 48). On June 26, 2019, this Court granted his Motion to

Reduce Sentence and resentenced Oliea to time served. Crim.,

Order for Sent. Reduction (d/e 53). As a result, Oliea is no longer

in custody.

II. LEGAL STANDARD

Generally, federal prisoners who seek to collaterally attack

their conviction or sentence must proceed by way of motion under

28 U.S.C. § 2255, the so-called “federal prisoner’s substitute for

habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368,

at *1 (7th Cir. Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638,

640 (7th Cir. 2012)). The exception to this rule is found in § 2255

itself: a federal prisoner may petition under § 2241 if the remedy

under § 2255 “is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e). Under the “escape hatch” of

§ 2255(e), “[a] federal prisoner should be permitted to seek habeas

corpus only if he had no reasonable opportunity to obtain earlier

judicial correction of a fundamental defect in his conviction or

sentence because the law changed after his first 2255 motion.” In

re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Therefore, the

Seventh Circuit has held that “alternative relief under § 2241 is

available only in limited circumstances: specifically, only upon

showing “(1) that he relies on ‘not a constitutional case, but a

statutory-interpretation case, so [that he] could not have invoked it

by means of a second or successive section 2255 motion,’ (2) that

the new rule applies retroactively to cases on collateral review and

could not have been invoked in his earlier proceeding, and (3) that

the error is ‘grave enough ... to be deemed a miscarriage of justice

corrigible therefore in a habeas corpus proceeding,’ such as one

resulting in ‘a conviction for a crime of which he was innocent.’”

Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016), cert. denied

sub nom. Montana v. Werlich, 137 S. Ct. 1813, 197 L. Ed. 2d 758

(2017) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)).

III. ANALYSIS

Initially, the Court notes that, despite his release from prison,

Oliea’s Petition is not necessarily moot. Rather, whether a § 2241

petition is moot due to a prisoner’s release from prison depends on

whether “he could obtain ‘any potential benefit’ from a favorable

decision.” Pope v. Perdue, 889 F.3d 410, 414 (7th Cir. 2018) (citing

United States v. Trotter, 270 F.3d 1150, 1152 (7th Cir. 2001)

(“Unless we are confident that [the former inmate] cannot benefit

from success on appeal, the case is not moot.”)). Here, Oliea is still

serving a term of supervised released. Therefore, he could still

benefit from a favorable decision since a favorable finding “would

carry ‘great weight’ in a § 3583(e) motion to reduce” his term of

supervised release. Id.

Nonetheless, the Court finds the Petition must be dismissed.

Magistrate Judge Schanzle-Haskins’ Report concluded that Oliea’s

Petition must be dismissed because Oliea has not shown that there

was a miscarriage of justice that would allow him to meet the

requirements of the § 2255(e) savings clause. The Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). The Court reviews de

novo any part of the Report and Recommendation to which a proper

objection has been made. Id. While the Court agrees with

Magistrate Judge Schanzle-Haskins’ conclusion, in light of

intervening law and the intervening changes in Oliea’s sentence

since the filing of the Report and Recommendation, the Court relies

on different reasons for finding that there has not been a

miscarriage of justice than Magistrate Judge Schanzle-Haskins did

in his report.

Oliea argues that his sentence is illegal because he should not

have been subject to the statutory enhancement for having a prior

felony drug offense and because he should not have been deemed a

career offender under the advisory sentencing guidelines. Both

claims rely on Descamps v. United States, 570 U.S. 254 (2013), and

Mathis v. United States, 136 S.Ct. 2243 (2016). As Magistrate

Judge Schanzle-Haskins found, both of these cases are cases of

statutory interpretation, and, therefore, meet the first requirement

to fall within the § 2255(e) savings clause. See R&R at 7 (d/e 8).

Respondent did not argue that Mathis or Descamps are not

retroactive, but only that Oliea has not shown that there has been a

miscarriage of justice. Resp. (d/e 3). Accordingly, the Court limits

its analysis to the miscarriage of justice requirement, and finds that

Oliea’s alleged errors do not qualify as a miscarriage of justice.

Assuming, arguendo that Oliea is correct that his sentence

should not have been subject to a statutory enhancement and that

he should not have been deemed a career offender, Oliea cannot

show he is suffering from a miscarriage of justice. The Seventh

Circuit has found an error is grave enough to meet this standard if

the error results in a conviction “of a nonexistent crime,”

Davenport, 147 F.3d at 611, or “a ‘fundamental error equivalent to

actual innocence,’” Brown v. Rios, 696 F.3d 638, 641 (7th Cir.

2012) (citing Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir. 2002). A

miscarriage of justice can occur “when a petitioner’s sentence is

increased by application of an enhancement of which he was

actually innocent.” Perrone v. United States, 889 F.3d 898, 904

(7th Cir.), cert. denied, 139 S. Ct. 654, 202 L. Ed. 2d 502 (2018)

(citing Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir.

2011) (finding that a miscarriage of justice occurred when a

defendant sentenced under the mandatory sentencing guidelines

was erroneously classified as a career offender, increasing his

mandatory sentencing guidelines range)).

Here, assuming Oliea’s underlying claim that he should not

have been subject to an increased statutory sentencing range due

to his prior convictions has merit, Oliea was not sentenced based

“upon the equivalent of a nonexistent offense.” Oliea pled guilty to

two counts of possession with intent to distribute a substance

containing five or more grams of cocaine base (“crack”), and there is

no suggestion that he is actually innocent of that underlying

offense. When Oliea first brought his Petition, he was serving a

sentence of 262 months’ imprisonment. Crim., Judgment (d/e 13).

The sentencing enhancement at that time had increased Oliea’s

sentencing range from a minimum of 5 years and a maximum of 40

years imprisonment, to a minimum of 10 years and a maximum of

life imprisonment. At this time, assuming the enhancement was

erroneously applied, Oliea may have had an arguable claim of a

miscarriage of justice. Similar to the petitioner in Navarez, Oliea

was subject to an enhanced imprisonment range whereby a judge

could not have sentenced him to less than 10 years imprisonment.

Although, the merits of this argument are dubious, as his sentence

was still well-below the statutory maximum he would have been

subject to without the sentencing enhancement and there is no

indication that he would have received a sentence lower than 10

years even if the judge had been able to do so.

However, now that Oliea has been sentenced to time served, it

is not possible to classify any error in applying the statutory

sentencing enhancement as a miscarriage of justice. In light of his

resentencing under the First Step Act, Oliea was no longer subject

to a mandatory minimum sentence—meaning this Court was free to

impose any sentence below the applicable statutory maximum.

And, his sentence of time-served was well below both the 30-year

statutory maximum that was deemed to apply and the 20-year

statutory maximum that would have applied had Oliea not been

deemed to have a prior felony drug offense. Oliea, therefore, cannot

show that his sentence was “increased by application of an

enhancement of which he was actually innocent.” Perrone, 889

F.3d at 904 (emphasis added). Accordingly, this claim must be

dismissed.

Oliea’s challenge to his advisory sentencing guidelines

calculation fares no better in light of the Seventh Circuit’s decisions

in Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013) (Hawkins

I), and Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013)

(Hawkins II). Given the interest in finality, in Hawkins I the

Seventh Circuit held that an erroneous interpretation of the

advisory sentencing guidelines is not reversible in post-conviction

proceedings so long as the sentence imposed was not greater than

the statutory maximum. Hawkins I, 706 F.3d at 823-25; see also

United States v. Coleman, 763 F.3d 706, 708-10 (7th Cir. 2014)

(“[I]n the context of postconviction proceedings, a sentence well

below the ceiling imposed by Congress . . . does not constitute a

miscarriage of justice.”). In Hawkins I, the petitioner qualified as a

career offender based on two prior felony convictions for walkaway

escape. Id. at 821. Three years after Hawkins was resentenced

under the advisory sentencing guidelines, the Supreme Court held

that an “escape” that takes the form of a failure to report did not

constitute a violent felony under the Armed Career Criminal Act, 18

U.S.C. § 924(e). Chambers v. United States, 555 U.S. 122, 127-30,

129 S.Ct. 687 (2009). Given Chambers, a walkaway escape is also

not a violent felony under the Armed Career Criminal Act or under

the similarly worded career offender guidelines. Hawkins I, 706

F.3d at 822 (citing cases). Hawkins filed a § 2255 motion

challenging his sentence on this basis, but the district court denied

the motion and the Seventh Circuit affirmed. Id. The Seventh

Circuit reasoned that, after United States v. Booker, 543 U.S. 220

(2005), the Guidelines are not binding on the district court and “the

judge may not even presume that a sentence within the applicable

guidelines range would be proper.” Id. Rather, the judge must

independently determine the appropriate sentence pursuant to 18

U.S.C. § 3553. Id. at 823. The court found that while the advisory

guidelines remain influential, given the interest in finality, an error

in the interpretation of an advisory guideline “is not a proper basis

for voiding punishment lawful when imposed.” Id.

Hawkins moved for rehearing in light of Peugh v. United

States, 133 S. Ct. 2072 (2013), in which the Supreme Court held

the advisory Guidelines were subject to constitutional challenges

under the ex post facto clause “notwithstanding the fact that

sentencing courts possess discretion to deviate from the

recommended sentencing range.” Peugh, 133 S. Ct. at 2082. The

Seventh Circuit denied rehearing finding that Peugh did not alter

their analysis since Peugh involved constitutional error (a violation

of the ex post facto clause), Peugh was a case on direct appeal

which has a lower legal standard than post-conviction relief does,

and Peugh’s retroactivity was uncertain. Hawkins II, 724 F.3d at

916-18 (“[I]t doesn’t follow that post-conviction relief is proper just

because the judge, though he could lawfully have imposed the

sentence that he did impose, might have imposed a lighter sentence

had he calculated the applicable guidelines sentencing range

correctly.”).

Here, Oliea’s initial sentence under the advisory guidelines

was well below the statutory maximum of life (and well below the

statutory maximum of 40 years had the § 851 Notice not been filed),

and his new sentence of time served is also well below both the 30-

year statutory maximum that was deemed to apply and the 20-year

statutory maximum that would have applied had Oliea not been

deemed to have a prior felony drug offense. The purported error in

designating Oliea a career offender is simply not cognizable on

collateral review. His claim regarding the advisory guidelines must,

therefore, be dismissed as well.

As none of Oliea’s objections would change this conclusion,

the objections are overruled as moot. However, the Court notes

that Oliea’s argument that Illinois’ statute 720 ILCS 570/401 is

overbroad due to its inclusion of “positional isomers” in the

definition of cocaine is not clearly meritless. This same argument is

currently pending before the Seventh Circuit. See United States v.

Atwood, No. 18-2113 (7th Cir.). However, as Oliea has not shown

he meets the requirements to proceed under § 2255(e), he is not

entitled to a decision on the underlying merits of his claim.

IV. CONCLUSION

For the reasons stated, Magistrate Judge Schanzle-Haskins’

Report and Recommendation (Doc. [8]) is ADOPTED as modified

above. Petitioner’s Objections (Doc. [11]) are OVERRULED.

Accordingly, Petitioner’s Petition for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2241 (Doc. [1]) is DISMISSED with

prejudice pursuant to 28 U.S.C. § 2255(e). This Case is CLOSED.

ENTERED: August 5, 2019

FOR THE COURT:

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE