United States v. McIlvoy
4:97-cr-00009-BSM
E.D. Ark.Dec 2, 2010Background
- McIlvoy moved under 28 U.S.C. § 2255 to vacate his 1997 sentence; grounds include alleged change in law affecting career-offender predicates and its impact on his sentence.
- He pled guilty to Count 1 (conspiracy to possess with intent to distribute over 100 marijuana plants) and Count 2 was dismissed; he was sentenced to 295 months as a career offender under § 4B1.1.
- Presentence report listed three predicate offenses: burglary, arson, and a controlled-substance offense (conspir[ing] to manufacture and possess with intent to distribute marijuana); fleeing and night hunting was cited but treated as a separate entry.
- McIlvoy’s § 2255 motion argued Begay, Chambers, and Johnson render his fleeing-and-night-hunting conviction non-qualifying as a violent felony for career-offender status.
- The district court held the motion untimely under § 2255(f) and concluded Begay/Chambers/Johnson do not apply because three predicate offenses remain valid; the motion was dismissed and no COA issued.
- Judgment entered December 2, 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the §2255 motion under §2255(f) | McIlvoy relies on Begay/Chambers/Johnson as recognizing a new right. | Court should apply the one-year clock from Johnson's decision date. | Untimely; motion barred by limitations. |
| Impact of Begay/Chambers/Johnson on career-offender predicates | McIlvoy had only two predicates; fleeing and night hunting cannot be a violent felony. | Three predicates exist regardless of Begay/Chambers/Johnson. | Begay/Chambers/Johnson do not negate three qualifying predicates. |
| Validity of the presentence-reference errors and overall predicate count | Typographical references misstate predicate counts, reducing to two. | Actual record shows three predicates (burglary, arson, controlled-substance), satisfying §4B1.1. | Three predicates remain; career-offender enhancement valid despite misreferences. |
| Effect of removing the career-offender enhancement on sentence | Removing enhancement would render 295-month sentence illegal. | Enhancement remains supported by three predicates; still valid. | Motion denied; no change to sentence. |
Key Cases Cited
- Begay v. United States, 553 U.S. 137 (U.S. Supreme Court 2008) (holds DUI not a violent felony under ACCA)
- Chambers v. United States, 555 U.S. 122 (U.S. Supreme Court 2009) (holding failure to report to penal institution not a violent felony)
- Johnson v. United States, 559 U.S. 133 (U.S. Supreme Court 2010) (battery with unwanted touching not a violent felony)