809 F.3d 953 (7th Cir. 2016), 15-3667, Dawkins v. United States

Docket Nº:15-3667
Citation:809 F.3d 953
Opinion Judge:Per Curiam.
Party Name:JOHN W. DAWKINS, Applicant, v. UNITED STATES OF AMERICA, Respondent
Attorney:For John W. Dawkins, Petitioner: Carol A. Brook, Attorney, William H. Theis, Attorney, Office of The Federal Defender Program, Chicago, IL. For United States of America, Respondent: Debra Riggs Bonamici, Attorney, Office of The United States Attorney, Chicago, IL.
Judge Panel:Before POSNER, FLAUM, and RIPPLE, Circuit Judges.
Case Date:January 07, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

Dawkins pleaded guilty to armed robbery of a bank and was sentenced, as a career offender, to serve 262 months in prison. He challenged the sentence under 28 U.S.C. 2244(b) and 2255(h), citing the 2015 Supreme Court holding, Johnson v. United States, that the residual clause of the Armed Career Criminal Act is unconstitutionally vague. The Seventh Circuit upheld his sentence, reasoning that the... (see full summary)

 
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Page 953

809 F.3d 953 (7th Cir. 2016)

JOHN W. DAWKINS, Applicant,

v.

UNITED STATES OF AMERICA, Respondent

No. 15-3667

United States Court of Appeals, Seventh Circuit

January 7, 2016

Submitted: December 2, 2015.

Motion for an Order Authorizing the District Court for the Northern District of Illinois, Eastern Division, to Entertain a Second or Successive. Motion for Collateral Review--John W. Darrah, Judge.

For John W. Dawkins, Petitioner: Carol A. Brook, Attorney, William H. Theis, Attorney, Office of The Federal Defender Program, Chicago, IL.

For United States of America, Respondent: Debra Riggs Bonamici, Attorney, Office of The United States Attorney, Chicago, IL.

Before POSNER, FLAUM, and RIPPLE, Circuit Judges.

OPINION

Per Curiam.

John Dawkins pleaded guilty to armed robbery of a bank and was sentenced, as a career offender, to serve 262 months in prison. He wants to attack his sentence in a suit under 28 U.S.C. § § 2244(b) and 2255(h). He relies on Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which holds that the residual clause of the Armed Career Criminal Act is unconstitutionally vague.

If Johnson applies to the identically worded residual clause in the career offender guideline (an issue currently before this court in United States v. Rollins, 13-1731, and the consolidated cases of United States v. Hurlburt, No. 143611 and United States v. Gillespie, No. 15-1686), Dawkins cannot show that his sentence violates Johnson. For the sentence was based not on the residual clause but on prior convictions for carjacking, an element of which is the use or threatened use of force, and on residential burglary, defined in U.S.S.G. § 4B1.2(a)(2) as a " crime of violence."

Dawkins argues that the sentencing judge's reliance on his prior conviction for burglary was invalid under Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which held that a divisible statute only one part of which is a forcible felony may not be used to support a sentencing enhancement unless a specified type of document (such as the order of conviction or the indictment) establishes that the defendant indeed committed the forcible offense. 720 ILCS 5/19-1. Residential burglary, however, which is committed when a defendant " knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another ... with the intent to commit therein a felony or theft," 720 ILCS 5/19-3," satisfies the ruling in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), that " a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime ... having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime."

Dawkins argues that entering " without authority" is not the same as entering " unlawfully," and covers a broader spectrum of entries (for example, shoplifting, which is not a form of burglary: see People v. Miller, 238 Ill.2d 161, 938 N.E.2d 498, 506-07, 345 Ill.Dec. 59 (Ill. 2010), distinguishing retail theft, 720 ILCS 5/16A-3, from burglary, 720 ILCS 5/19-1, and holding that a conviction for both arising from the same act does not violate the double jeopardy clause or Illinois's comparable bar on multiple punishments for the same offense).

Retail theft, which includes shoplifting, does not require proof of any type of entry, and certainly not an unauthorized entry. In fact, People v. Miller, supra at 507, relies on the fact that burglary requires entry without authority to enter to distinguish the two crimes. And Illinois courts, like federal courts, use terms like unlawfully, unauthorized, without consent, and without authority interchangeably: " Burglary requires a knowingly unlawful entry into a building with the intent to commit a theft therein." People v. Heinz, 407 Ill.App.3d 1016, 946 N.E.2d 1087, 1093, 349 Ill.Dec. 591 (Ill. App. 2011); People v. Bradford, 2014 IL App. (4th) 130288, 386 Ill.Dec. 834, 21 N.E.3d 753, 759-60 (Ill. App. 2014) (using " unlawful" and " without authority" interchangeably); United States v. Thornton, 463 F.3d 693, 702 (7th Cir. 2006) (assuming that Illinois burglary, which requires an entry " without authority," meets the Taylor definition of " an unlawful or unprivileged entry" ); see...

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