Stanley v. United States, 15-3728

• Decision Date: 01 June 2016
• Docket Number: No. 15-3728,15-3728
• Parties: LONZO J. STANLEY, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

LONZO J. STANLEY, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

No. 15-3728

United States Court of Appeals For the Seventh Circuit

SUBMITTED MAY 31, 2016
OPINION ISSUED JUNE 27, 2016^*
JUNE 1, 2016

Appeal from the United States District Court for the Western District of Wisconsin.
No. 15-cv-222-bbc — Barbara B. Crabb, Judge.

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge. More than a decade ago Lonzo Stanley was sentenced to 200 months' imprisonment

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after he pleaded guilty to distributing crack cocaine. His sentence depended in part on the district court's conclusion that he is a career offender under U.S.S.G. §4B1.1, which calls for extra time in prison if the defendant has two or more prior convictions for serious drug crimes or violent felonies. The court counted three qualifying convictions: one for a controlled-substance offense, another for unlawfully possessing a firearm, and a third for aggravated battery. Stanley did not appeal from his sentence or file a collateral attack under 28 U.S.C. §2255 within the year allowed by §2255(f).

After the Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015), Stanley took advantage of the opportunity created by §2255(f)(3), which allows a fresh year from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review". We held in Price v. United States, 795 F.3d 731 (7th Cir. 2015), that the right newly identified in Johnson is retroactive, and in Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme Court agreed. But the district judge concluded that Johnson does not affect Stanley's sentence and denied his petition for collateral review. 2015 U.S. Dist. LEXIS 72909 (W.D. Wis. June 5, 2015).

Johnson holds that part of 18 U.S.C. §924(e)(2)(B)(ii) is unconstitutional. Subsection 924(e), called the Armed Career Criminal Act, requires longer sentences for persons convicted of three or more violent felonies or serious drug offenses. 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

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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 unconstitutionally vague. Johnson does not otherwise affect the operation of the Armed Career Criminal Act. Nor does Johnson discuss how, if at all, its holding affects the career-offender guideline. For the purpose of this appeal, we assume that Johnson applies to the Sentencing Guidelines. Another panel has that question under advisement. We do not express any opinion on it.

A flurry of filings in the district courts after Price, which became a blizzard after Welch, depends on a belief that Johnson reopens all questions about the proper classification of prior convictions under the Guidelines and the Armed Career Criminal Act. But the sole holding of Johnson is that the residual clause is invalid. Johnson does not affect the first portion of clause (ii) ("burglary, arson, or extortion, [or] use of explosives") and does not have anything to do with the proper classification of drug offenses or the operation of §924(e)(2)(B)(i), known as the elements clause, which classifies as a violent felony any crime punishable by a year or more in prison that "has as an element the use, attempted use, or threatened use of physical force against the person of another". The Guidelines contain the same language. U.S.S.G. §4B1.2(a)(1).

Stanley is among the many petitioners who have misunderstood the effect of Johnson. We go through his prior felony convictions one at a time to show why.

His drug conviction counts under U.S.S.G. §4B1.2(b), and it would have counted under §924(e)(2)(A) if this had been a

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proceeding under the Armed Career Criminal Act. He does not argue otherwise.

Stanley's conviction for illegal possession of a firearm, by contrast, does not count—not...