Welch v. U.S.A

• Decision Date: 04 May 2010
• Docket Number: No. 08-3108.,08-3108.
• Parties: Devin WELCH, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 408

Devin WELCH, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 08-3108.

United States Court of Appeals,
Seventh Circuit.

Argued Dec. 4, 2009.
Decided May 4, 2010.

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Seema V. Dargar, Attorney, Mayer Brown LLP, Chicago, IL, for Petitioner-Appellant.

Richard Cox, Attorney, Colin S. Bruce, Attorney, Office of the United States Attorney, Urbana, IL, for Respondent-Appellee.

Before POSNER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon. He then brought a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court denied the § 2255 motion in pertinent part. We granted a certificate of appealability to address two of Mr. Welch's contentions. First, he submits that his prior conviction for the Illinois crime of aggravated fleeing or attempting to elude a police officer cannot qualify as a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”). Second, he submits that his prior juvenile adjudication cannot be used to enhance his sentence beyond the statutory maximum because it was not obtained by a jury trial. For the reasons set forth in this opinion,

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we affirm the judgment of the district court.I BACKGROUND

In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The presentence report (“PSR”) indicated that Mr. Welch had four prior convictions that were “violent felonies” for purposes of the ACCA: two aggravated batteries, aggravated fleeing or attempting to elude a police officer and a juvenile adjudication for attempted armed robbery. Without the ACCA's statutory enhancement, the statutory maximum sentence for Mr. Welch's crime was 120 months.

At sentencing, Mr. Welch's counsel made no objections to the PSR, but Mr. Welch submitted handwritten memoranda making objections pro se. One of those objections was to the use of the previous convictions to enhance his sentence. The district court overruled the objections and sentenced Mr. Welch to 180 months' imprisonment, to be followed by a five-year term of supervised release. The district court did not rely on one of the aggravated battery convictions-for spitting-but, as a result of the other three violent felonies, Mr. Welch was nonetheless subject to the ACCA's mandatory minimum sentence of 180 months' imprisonment.¹ See 18 U.S.C. § 924(e)(1). On direct appeal, Mr. Welch, through counsel, did not pursue any of the pro se objections. He contended only that the trial court had erred in failing to specify the number of required drug tests during the period of supervised release. We summarily affirmed the district court's judgment. United States v. Welch, No. 06-3385 (7th Cir. Feb. 21, 2007).

Mr. Welch next filed a pro se § 2255 motion. He contended that his conviction for aggravated fleeing or attempting to elude a police officer was not a violent felony because, under Illinois law, the offense is characterized as a “serious traffic offense but not something that presents a serious potential risk of physical injury to another.” R.1 at 11.² He also contended that his juvenile adjudication could not be used to enhance his sentence beyond the statutory maximum consistent with the Sixth Amendment because it did not result from a jury trial; he also contended that his counsel had been ineffective for failing to raise this claim.³

The district court denied these aspects of the motion. In rejecting Mr. Welch's ACCA claim, it relied on United States v. Howze, 343 F.3d 919, 921 (7th Cir.2003), in holding that flights to avoid arrest categorically created a serious potential risk of injury to another and were thus violent felonies. In rejecting Mr. Welch's ineffective assistance claim, it noted that, at the time of sentencing, the circuits were divided 3-1 against Mr. Welch's position, with the Seventh Circuit silent. Thus, it was reasonable for counsel to choose not to raise the issue. Moreover, Mr. Welch suffered no prejudice because he had raised the issue pro se.

We initially granted a certificate of appealability only on the issue of ineffective assistance. We subsequently expanded

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the certificate to include the issue of whether Mr. Welch's conviction for aggravated fleeing or attempting to elude a police officer properly was classified as a violent felony in light of the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).II ANALYSIS A. 1.

Initially, we note that we have held that deviations from the Sentencing Guidelines generally are not cognizable on a § 2255 motion. Scott v. United States, 997 F.2d 340, 343 (7th Cir.1993). Other circuits have reached a similar conclusion.⁴ However, Scott does not govern the situation before us for two reasons. First, Scott relied, in significant part, on the text of § 2255, and suggested that the Guidelines were not “laws of the United States.” Id. at 341; see also Taylor v. Gilkey, 314 F.3d 832, 833 (7th Cir.2002) (“Because the Guidelines are not ‘laws' for purposes of § 2255, however, this argument could not support relief.”); Brannigan v. United States, 249 F.3d 584, 588 (7th Cir.2001) (same). That rationale does not apply here because the statutory text clearly permits relief if “the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). Here, Mr. Welch pointedly argues that his sentence, as enhanced by the ACCA, is above the statutory maximum, which would entitle him to relief. ⁵ Second, our decision in Scott was based in significant part on the difference between direct appeal and collateral attack, ultimately concluding “that arguments of the sort Scott proffers must be advanced on direct appeal or not at all.” Scott, 997 F.2d at 343. However, “arguments of the sort” at issue here, where a change in law reduces the defendant's statutory maximum sentence below the imposed

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sentence, have long been cognizable on collateral review.⁶

Finally, we note that the Government has waived any procedural default argument by failing to address the issue in its brief. See Torzala v. United States, 545 F.3d 517, 522 (7th Cir.2008) (“Because the government did not assert procedural default as a defense in this action but instead chose to respond on the merits, however, the government has waived the procedural default.”).

2.

We next must consider whether the rule announced in Begay, that a crime must be similar in kind to the enumerated offenses in order to qualify as a violent felony under the ACCA, is applicable under the Supreme Court's retroactivity framework. If it is, then the error of which Mr. Welch complains is cognizable in this collateral review proceeding.

New procedural rules that are established after a conviction becomes final generally do not apply on collateral review. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). New substantive rules, however, are not barred by the Teague rule. The Supreme Court has explained this distinction:

New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.

Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (internal quotation marks and citations omitted, emphasis removed).

These substantive rules stand in contrast to procedural rules which:

do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.

Id. at 352, 124 S.Ct. 2519.

Our colleagues in the Tenth Circuit recently have addressed this substantive/procedural distinction. In United States v. Shipp, 589 F.3d 1084 (10th Cir.2009), that court had to decide whether Chambers v. United States, --- U.S. ----, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), is to be applied retroactively.⁷ As we shall discuss in

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detail later, Chambers, like Begay, interpreted the ACCA and narrowed the scope of “violent felony.” The Tenth Circuit held that Chambers articulated “a substantive rule of statutory interpretation.” Shipp, 589 F.3d at 1089. A defendant who “does not constitute an ‘armed career criminal’ ” after Chambers has “received ‘a punishment that the law cannot impose upon him.’ ” Id. at 1091 (quoting Schriro, 542 U.S. at 352, 124 S.Ct. 2519). Accordingly, the court held that Mr. Shipp's due process rights were violated and that he was entitled to collateral relief. Id.⁸

At the outset of our analysis, we recognize that, although Begay narrowed the scope of a criminal statute, it did not narrow any of the elements of a criminal offense. We also must recognize that Mr. Welch was convicted of, and punished for,

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unlawfully possessing a firearm, which is still criminal conduct after Begay. The question, therefore, is whether a statutory rule defining the scope of a sentencing enhancement that increases the maximum allowable statutory sentence on the basis of a prior conviction is properly classified as substantive.

There is significant merit to the Tenth Circuit's analysis. In essence, Begay narrowed substantially Mr. Welch's exposure to a sentence of imprisonment. Without the ACCA enhancement, Mr. Welch faced a statutory maximum of 10 years' imprisonment. With the ACCA enhancement, Mr. Welch faced a statutory minimum of 15 years' imprisonment. In short, the application of the ACCA imposed,...