White v. United States

• Decision Date: 09 August 2021
• Docket Number: No. 17-2749,17-2749
• Parties: Jason L. WHITE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

8 F.4th 547

Jason L. WHITE, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-2749

United States Court of Appeals, Seventh Circuit.

Argued January 20, 2021

Decided August 9, 2021

David Brengle, Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Petitioner - Appellant.

Peter Reed, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Respondent - Appellee.

Before Easterbrook, Wood, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

Jason White, convicted of possessing a firearm as a felon, petitions under 28 U.S.C. § 2255 to vacate, set aside, or correct his 30-year sentence. His sentence included an armed career criminal enhancement, which requires at least three previous convictions "for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). After a change in the law, the parties agreed the sentencing court had relied on one of White's previous convictions that no longer supported the enhancement. For that inapplicable conviction, the district court substituted in another—an Illinois state conviction for cocaine delivery—and concluded White still qualified as an armed career criminal. So the court denied his § 2255 petition.

Given two of our court's recent decisions— Dotson v. United States , 949 F.3d 317 (7th Cir. 2020), and United States v. Ruth , 966 F.3d 642 (7th Cir. 2020) —reasonable jurists may debate whether a court may substitute one predicate conviction for another for a sentencing enhancement, as well as whether an Illinois cocaine conviction may serve as a predicate offense. We therefore granted White a certificate of appealability.

White's petition falls short, however. Not only did he have fair notice that the substitute conviction could be used as a predicate offense, but waiver and procedural default also foreclose his challenge on both questions. We therefore affirm the denial of his petition.

I

In 2011, Jason White and Christopher Evans engaged in a fistfight outside a nightclub in Brooklyn, Illinois (just across the Mississippi River from St. Louis). The fight eventually broke up, and Evans went to his girlfriend's house. As Evans walked onto the front porch, White appeared with a loaded gun in hand. White raised the gun and tried to strike Evans with it. Evans blocked the blow, but the gun went off. The bullet struck Evans in the abdomen and grazed the leg of Evans's girlfriend, who had opened the front door to let in Evans.

White was charged as a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A jury found him guilty in 2013, and he was sentenced later that year. White's lengthy criminal history included twelve previous adult convictions—all in Madison County, Illinois—four of which are implicated in this appeal:

• Delivery of crack cocaine (2003);

• Attempted armed robbery (2004);

• Aggravated fleeing (2007); and

• Delivery of crack cocaine near a church (2008).

The district court considered whether White should be designated as an armed career criminal, subject to an enhanced sentence under 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA). Section 924(e) prescribes that a person who violates § 922(g) and has three previous convictions for a "violent felony" or "serious drug offense" receives an enhanced sentence as an armed career criminal. To support this designation for White, the government filed a notice that listed three predicate offenses: the attempted armed robbery in 2004 and the drug deliveries in 2003 and 2008. White objected to the district court's consideration of the aggravated fleeing conviction, a predicate offense not listed in that notice.

In sentencing White, the district court relied on three predicate convictions identified in his presentence investigation report, which differed slightly from the government's notice. The district court cited as predicate convictions the 2008 drug delivery, the attempted armed robbery, and the aggravated fleeing. Despite the government's request, the district court did not include the 2003 drug delivery conviction as a predicate offense. The district court designated White as an armed career criminal, which resulted in a statutory sentencing range of imprisonment of fifteen years to life. 18 U.S.C. § 924(e)(1). The Sentencing Guidelines produced an advisory range of 30 years to life, and the district court sentenced White to 30 years’ imprisonment.

White filed a direct appeal, challenging the district court's denial of a motion to suppress but not his sentence. This court affirmed his conviction. United States v. White , 781 F.3d 858 (7th Cir. 2015). White then timely filed this § 2255 petition to challenge his sentence. He noted that the aggravated fleeing conviction, which the district court had relied on over his objection, fell under the residual clause deemed unconstitutional in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). So White asked to be resentenced.

The government agreed with White that under Johnson the aggravated fleeing conviction could not be considered as part of the armed career criminal determination. But the government highlighted that White's 2003 drug delivery conviction, which the district court ultimately did not include as part of its enhancement determination, qualified as a predicate "serious drug offense" for armed career criminal status. The government also argued that White had procedurally defaulted this issue for purposes of § 2255 by failing to raise it on direct appeal. White thus had to demonstrate cause and actual prejudice from the failure to appeal. Given Johnson , the government continued, White may have established cause. But the government argued he had not established prejudice because he still had three predicate convictions—the attempted armed robbery, the 2008 drug delivery, and the substitute 2003 drug delivery.

White pushed back. He contended that he received an armed career criminal designation based on a finding the sentencing court had not made. He also asserted the attempted armed robbery was not a valid ACCA predicate after Johnson . But White did not dispute the validity of his two drug delivery convictions as ACCA predicates.

The district court denied White's § 2255 petition. The court reasoned that, even ignoring the aggravated fleeing conviction, White still had the two drug delivery convictions and the attempted armed robbery conviction to serve as ACCA predicates. The district court also denied White's challenge to the use of his attempted armed robbery conviction as an ACCA predicate and declined to issue a certificate of appealability under 28 U.S.C. § 2253(c).

White timely appealed and moved for a certificate of appealability with this court. We granted White's motion, and the parties briefed his petition. We review de novo the legal questions presented on appeal from the denial of a § 2255 petition. Waagner v. United States , 971 F.3d 647, 653 (7th Cir. 2020).

II

Section 2255 provides possible relief for a federal prisoner who argues their sentence "was imposed in violation of the Constitution or laws of the United States, or [if] the court was without jurisdiction to impose such sentence, or [if] the sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255(a). "Relief under § 2255 is available ‘only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.’ " United States v. Coleman , 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States , 723 F.3d 870, 878–79 (7th Cir. 2013) ).

White argues that after recent changes in the law, he no longer has three predicate offenses required for an armed career criminal status. The parties agree that after Johnson , the aggravated fleeing no longer counts as an ACCA predicate. This court granted White a certificate of appealability because, after two recent decisions, reasonable jurists may debate two aspects of substituting one previous conviction for another to support an ACCA enhancement. First, does the substitution comport with fair notice principles? See Dotson , 949 F.3d at 320–22. Second, was it proper for the district court to rely on a 2003 drug delivery conviction in light of Ruth , 966 F.3d at 644, in which this court ruled that Illinois defines "cocaine" more broadly than does federal law?

A

The certificate of appealability sets forth the issues, yet White's opening brief failed to address the first question. Instead, his submission went directly to the second issue of whether, after Ruth , his 2003 and 2008 drug delivery convictions qualify as ACCA predicates.

A party that omits from its opening appellate brief any argument in support of its position waives or abandons that party's claim on appeal. See United States v. Cisneros , 846 F.3d 972, 978 (7th Cir. 2017) ; United States v. Cruse , 805 F.3d 795, 818 n.7 (7th Cir. 2015) (noting that arguments raised for the first time in a reply brief are waived); see also FED. R. APP. P. 28(a)(8) (requiring that an appellant's brief contain the appellant's contentions and the reasons for them). Along the same line, this court has repeatedly and consistently held that perfunctory and undeveloped arguments, as well as arguments that are unsupported by pertinent authority, are waived. United States v. Elst , 579 F.3d 740, 747 (7th Cir. 2009).

Here, White did not offer any arguments in his opening brief regarding fair notice or the substitution of one predicate conviction for another when determining career offender status. Not only did White fail to cite Dotson , but he also failed to discuss its holding allowing such a substitution after a court reviews case-specific considerations. 949 F.3d at 320–22. Even more, this court described these issues and referenced Dotson in the certificate of appealability.

White claims in his reply brief that there was no waiver. He argues...