MCINTOSH v. United States
1:16-cv-00769
S.D. Ind.Dec 27, 2017Background
- Petitioner Dannye McIntosh filed a second/successive § 2255 motion authorized by the Seventh Circuit to challenge his career-offender enhancement under the Guidelines after Johnson.
- McIntosh was sentenced in March 2006 and was sentenced post-Booker when the Guidelines were advisory.
- McIntosh argues Beckles does not bar his vagueness challenge because, he contends, Seventh Circuit precedent effectively rendered the Guidelines mandatory at the time of his sentencing.
- The district court appointed counsel who later withdrew; McIntosh proceeded pro se and filed briefing after the court ordered him to show cause why Beckles should not foreclose relief.
- The Government argued Beckles forecloses vagueness challenges to the advisory Guidelines and that McIntosh’s mandatory-Guidelines theory fails under Seventh Circuit precedent.
- The court denied relief, concluding McIntosh’s claim is foreclosed by Beckles and Seventh Circuit authority, and denied a certificate of appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson-based vagueness challenge can invalidate McIntosh’s career-offender enhancement under the advisory Guidelines | McIntosh: Beckles does not bar his claim because Seventh Circuit decisions made the career-offender provision effectively mandatory when he was sentenced | Gov’t: Beckles forecloses vagueness challenges to advisory Guidelines; Booker made Guidelines advisory and any circuit error did not change that legal effect | Denied — Beckles bars vagueness challenges to advisory Guidelines; McIntosh’s mandatory-Guidelines theory fails under Seventh Circuit precedent |
| Whether erroneous circuit precedent could make Guidelines mandatory despite Booker | McIntosh: Earlier Seventh Circuit cases meant Guidelines operated as mandatory for his sentence | Gov’t: A mistaken circuit decision cannot nullify Booker’s holding that Guidelines are advisory; mistaken precedent had to be challenged on direct appeal | Denied — a mistaken circuit decision does not alter Booker’s legal force; relief was not available in this collateral proceeding |
| Whether McIntosh is entitled to relief on collateral review given his 2006 sentencing | McIntosh: His specific sentencing circumstances warrant reopening based on Johnson-related theory | Gov’t: Perry and related Seventh Circuit decisions show advisory status at sentencing; claim is foreclosed | Denied — Seventh Circuit precedent (Perry reasoning applied) forecloses the claim |
| Whether a certificate of appealability should issue | McIntosh: Claim is debatable among jurists | Gov’t: No reasonable jurist would find the ruling debatable | Denied — court finds no substantial showing of a constitutional right was made |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held the ACCA residual clause unconstitutionally vague)
- Beckles v. United States, 137 S. Ct. 886 (2017) (held advisory Sentencing Guidelines are not subject to vagueness challenges)
- United States v. Booker, 543 U.S. 220 (2005) (held the Guidelines are advisory following Sixth Amendment ruling)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standards for granting a certificate of appealability)
- Stanley v. United States, 827 F.3d 562 (7th Cir. 2016) (summarizing Johnson’s holding regarding the residual clause)
- United States v. Corner, 589 F.3d 411 (7th Cir. 2009) (en banc) (addressed circuit precedent concerning Guidelines application)
- United States v. Harris, 536 F.3d 798 (7th Cir. 2008) (earlier Seventh Circuit decision relevant to sentencing practice)
- United States v. Welton, 583 F.3d 494 (7th Cir. 2009) (earlier Seventh Circuit decision relevant to sentencing practice)