United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE JUDGE.
inmate Jose Silva has filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 to
challenge the enhancement of his federal sentence based upon
a prior felony drug conviction. [R. 1] The Court must screen
the petition pursuant to 28 U.S.C. § 2243. Alexander
v. Northern Bureau of Prisons, 419 Fed.Appx. 544, 545
(6th Cir. 2011).
November 2013, Silva pleaded guilty in Chicago, Illinois to a
single count of trafficking in crack cocaine in violation of
21 U.S.C. § 841(a)(1). The government filed a notice
pursuant to 21 U.S.C. § 851 indicating that it would
seek an enhanced sentence pursuant to 21 U.S.C. §
841(b)(1)(B) because Silva had a prior “felony drug
offense, ” a 2008 Illinois conviction for possession of
a controlled substance. The government also contended that
Silva was a career offender pursuant to § 4B1.1 of the
Sentencing Guidelines based upon numerous prior convictions
for conduct involving drug possession, weapons possession,
assault, attempting to stab a victim and for shooting two
other persons. Prior to sentencing Silva challenged the
validity of the § 851 notice and contended on numerous
grounds that his prior Illinois conviction was not a proper
basis to enhance his sentence under § 841. In March 2014
the trial court conducted a sentencing hearing. The court
concluded that the § 851 notice was valid, resulting in
a mandatory minimum sentence of 10 years imprisonment and a
maximum sentence of life imprisonment. The court also
concluded that Silva qualified as a career offender under the
Guidelines based upon, at least, his prior Illinois
convictions for aggravated fleeing and aggravated battery.
The trial court imposed a sentence of 262 months imprisonment
at the very bottom of the applicable Guidelines range.
United States v. Silva, No. 1:13-CR-156-1 (N.D. Ill.
appealed, but his counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967) and
moved to withdraw. The Seventh Circuit agreed that Silva had
no nonfrivolous grounds to appeal, granted counsel's
motion, and dismissed the appeal. United States v.
Silva, 583 Fed.Appx. 546 (7th Cir. 2014). In April 2016,
Silva filed a motion to vacate his sentence pursuant to 28
U.S.C. § 2255 contending that the enhancement of his
sentence was improper in light of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). The trial court denied the motion after the Supreme
Court held in Beckles v. United States, 137 S.Ct.
886 (2017) that Johnson did not provide any grounds
to invalidate the residual clause found in the advisory
§ 2241 petition, Silva contends that his prior Illinois
conviction pursuant to 720 ILCS 570/402 for possession of a
controlled substance is not a “controlled substance
offense” as defined in 21 U.S.C. § 802(44) if the
categorical match approach described in Descamps v.
United States, 570 U.S. 254 (2013) and Mathis v.
United States, 136 S.Ct. 2243 (2016) is properly
applied. Having thoroughly reviewed the petition, the Court
must deny relief because Silva's claim is not cognizable
in a § 2241 petition and because it is substantively
Silva may not assert his claim in a § 2241 petition. A
prisoner may challenge the enhancement of his federal
sentence in a § 2241 petition only in a narrow set of
circumstances. To qualify, the petitioner must (1) have been
sentenced under a mandatory guidelines regime before the
Supreme Court's decision in United States v.
Booker, 543 U.S. 220 (2005) rendered the Sentencing
Guidelines merely advisory; (2) point to a Supreme Court
decision - issued after the petitioner's sentence became
final and which is retroactively applicable to cases on
collateral review - which establishes that as a matter of
statutory interpretation one or more of his prior convictions
were not for offenses that could properly be used to enhance
his federal sentence; and (3) establish that the new decision
could not have been invoked in an initial or successive
§ 2255 motion. Hill v. Masters, 836 F.3d 591,
595, 599-600 (6th Cir. 2016).
does not meet these requirements. His sentence was imposed in
2014, long after Booker had rendered the sentencing
guidelines advisory. A challenge to the enhancement of his
sentence therefore fails to satisfy Hill's
threshold requirement for cognizability. See Arroyo v.
Ormond, No. 6: 17-CV-69-GFVT (E.D. Ky. 2017),
aff'd, No. 17-5837 (6th Cir. April 6, 2018)
(“Arroyo was sentenced in October 2006, after the
Supreme Court's decision in Booker ... On this
basis alone, Arroyo's claim does not fall within
Hill's limited exception for bringing a §
2241 habeas petition to challenge a federal
sentence.”); Contreras v. Ormond, No. 6:
17-CV-329-GFVT (E.D. Ky.), aff'd, No. 18-5020 at
p. 2-3 (6th Cir. Sept. 10, 2018); Anderson v.
Ormond, No. 6:18-CV-254-CHB, 2018 WL 6594539, at *3-4
(E.D. Ky. Dec. 14, 2018), appeal filed, No. 19-5010
(6th Cir. 2019).
addition, his claim under Descamps could and should
have been asserted as grounds for relief at sentencing or on
direct appeal, and his claim under Mathis could and
should have been asserted in his initial § 2255 motion.
Descamps was decided in 2013 before his sentence was
imposed, and therefore cannot be asserted as grounds for
relief at this late juncture. Mathis was decided in
June 2016, two months after Silva filed his initial §
2255 motion in April 2016. But his § 2255 proceedings
continued for an additional year until the Supreme Court
issued its opinion in Beckles in 2017. Silva thus
had a “meaningful time to incorporate” his
Mathis challenge to his sentence into his initial
§ 2255 proceeding, see Hill, 836 F.3d at
594-95, and therefore cannot show that his remedy under
§ 2255 was inadequate and ineffective to assert the same
claims he now seeks to assert under § 2241. Truss v.
Davis, 115 Fed.Appx. 772, 774 (2004).
claim is also without merit. Silva contends that using the
categorical approach described in Mathis, his prior
Illinois conviction for drug possession does not constitute a
“felony drug offense” as required to implicate
the mandatory minimum sentence required by 21 U.S.C. §
841(b)(1)(B)(iii). This argument is misplaced. Neither
Mathis nor the categorical approach discussed in
that decision apply to the determination of whether a prior
drug trafficking offense qualifies as a “felony drug
offense.” While Mathis applies to sentence
enhancements under 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.1(a), it does not address or relate to sentence
enhancements under § 841(b)(1).
qualify as a “felony drug offense, ” no detailed
comparison of elements is required. Rather, 21 U.S.C. §
802(44) merely requires that the prior state or federal
offense (1) be punishable by more than one year in prison,
and (2) that it “prohibits or restricts conduct
relating to narcotic drugs, marihuana, anabolic
steroids, or depressant or stimulant substances.”
(emphasis added). By its terms, § 802(44) does not
require that the prior offense constitute any particular
species of crime, but only that it “relate to”
conduct involving drugs. Given the breadth of this
definition, the use of the categorical approach is neither
necessary nor appropriate. See United States v.
Graham, 622 F.3d 445, 456-57 (6th Cir. 2010); United
States v. Soto, 8 Fed.Appx. 535, 541 (6th Cir. 2001)
(“[T]his court does not employ a categorical approach
to determining whether a prior conviction constitutes a
‘felony drug offense' for purposes of section 841
(b)(1).”); United States v. Spikes, 158 F.3d
913, 932 (6th Cir. 1998) (“[Section] 802(44) only
requires that the state statute criminalize conduct
‘relating' to drugs. The use of the expansive term
‘relating' as the only substantive limitation on
the reach of the statutory phrase ‘felony drug
offense' clearly indicates that the statute encompasses
drug offenses that involve the simple possession of
drugs.”), cert. denied, 525 U.S. 1086 (1999).
more complex analysis involved in cases governed by
Mathis is simply not relevant to determinations
under § 841(b)(1)(A). Cf. United States v.
Smith, No. 1:12-CR-88-1, 2017 WL 3528954, at *5-6 (W.D.
La. July 11, 2017) (noting that “[t]he categorical
approach in Moncrieffe and Taylor has never
been applied to the enhanced penalty provisions of §
841(b)(1)(A) and has never been used to interpret the phrase
‘felony drug offense' in 21 U.S.C. §
802(44).”) (citing United States v. Wing, No.
5:13-CR-87-JMH, 2016 WL 3676333, at *2 (E.D. Ky. 2016)). The
United States Court of Appeals for the Sixth Circuit has
repeatedly confirmed that Mathis is not applicable
to sentences enhanced under § 841(b)(1)(A). Smith v.
Ormond, No. 6: 18-012-DCR (E.D. Ky. Jan. 16, 2018),
aff'd, No. 18-5101, 2018 WL 7143637, at *4 (6th
Cir. July 30, 2018); Hidalgo v. Smith, No. 0:
17-CV-133 (E.D. Ky. Jan. 8, 2018), aff'd, No.
18-5230, at *4 (6th Cir. Sept. 20, 2018); Romo v.
Ormond, No. 6: 17-CV-73-DCR (E.D. Ky. Sept. 14, 2017),
aff'd, No. 17-6137, at *4 (6th Cir. Sept. 13,
2018); McKenzie v. Ormond, No. 17-CV-172-GFVT (E.D.
Ky. Jan. 4, 2018), aff'd, No. 18-5072, at *4
(6th Cir. July 11, 2018).
the Court notes that federal courts within the Seventh
Circuit have consistently held that an Illinois conviction
for drug possession under 720 ILCS 570/402 constitutes a
“felony drug offense” within the meaning of
§ 802(44). Cf. United States v. Jackson, 419
Fed.Appx. 666, 671 (7th Cir. 2011) (citing Burgess v.
United States, 553 U.S. 124, 129-33 (2008));
Irizarry-Centeno v. Lockett, No. 2:
12-CV-088-WTL-WGH, 2013 WL 3724813, at *3 (S.D. Ind. July 15,
2013) (collecting cases); Ford v. United States, No.
12-CV-2090, 2012 WL 2370678, at *2 (C.D. Ill. June 21, 2012).
Silva's sentence was therefore properly enhanced pursuant
to 21 U.S.C. § 841(b)(1)(B).
it is ORDERED as follows:
Silva's petition for a writ of habeas corpus pursuant to
28 U.S.C. ...