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Seventh Circuit Orders Grant of Successive § 2255 Motion and 
Resentencing in Pre-Booker Mandatory Guidelines Case Involving Elements Clause’s Definition of ‘Crime of Violence’

by Chad Marks

In 1987, Todd D’Antoni was charged with selling cocaine to a juvenile resulting in her death.

While being held in jail on those charges, he solicited another prisoner to kill a government witness for cash and drugs. That prisoner contacted law enforcement, agreeing to cooperate in regards to the murder-for-hire plot. As a result, D’Antoni was charged with conspiracy to kill a government witness.

D’Antoni pleaded guilty to both crimes. The court sentenced him to 35 years on the drug count, and a five-year consecutive term on the conspiracy charge.

While in prison serving his 40-year term, D’Antoni again found himself on the wrong side of the law. He was charged with conspiracy to distribute LSD while in jail. A jury convicted him of those charges. The presentence report calculated a mandatory Guidelines term of imprisonment range of 51-63 months.

The Government responded to that, arguing D’Antoni was a career offender and should be sentenced as such. Specifically, the Government contended that under the 1990 Guidelines his cocaine conviction was a qualifying controlled substance offense and that his conspiracy to kill a government witness conviction subjected him to the career offender Guidelines sentencing scheme. The court agreed, which placed him in a Guidelines range of 262-327 months. The court subsequently sentenced him to 264 months of imprisonment to be served consecutively to the already imposed 40-year term.

He appealed, arguing that the court erred in classifying him as a career offender. The court disagreed, affirming the sentence.

The U.S. Supreme Court on June 26, 2015, issued its landmark decision in Johnson v. United States, 135 S. Ct. 2551 (2015), holding that the ACCA residual clause definition of “violent felony” which is identical to the Guidelines’ residual clause “crime of violence” definition is unconstitutionally vague. A year later in Welch v. United States, 136 S. Ct.1257 (2016), the Supreme Court held that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review.

D’Antoni, in light of these rulings, sought permission to file a successive § 2255 motion. He argued his career offender sentence was invalid because (1) Johnson applied to invalidate § 4B1.2’s residual clause as unconstitutionally vague and (2) his prior conviction for conspiracy to kill a government witness could only be considered a crime of violence under the residual clause and thus no longer qualified as a predicate offense. The Seventh Circuit granted his application.

The district court, relying on the Supreme Court’s decision in Beckles v. United States, 137 S. Ct. 866 (2017), ruled that D’Antoni could not make a vagueness challenge to the pre-Booker mandatory Guidelines, and thus his prior conspiracy conviction remained a crime of violence pursuant to the residual clause. The court did grant a certificate of appealability.

D’Antoni filed a notice of appeal. That appeal was stayed while the Seventh Circuit was deciding Cross v. United States, 892 F.3d 288 (7th Cir. 2018). The Cross Court held that “Beckles applies to only advisory guidelines, not to mandatory sentencing rules,” and therefore, “the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants.”

With this decision, the mandatory Guidelines were subject to attack on vagueness grounds, and attack D’Antoni it did.

The Court found that his conspiracy conviction did not include force as an element and its only possible connection to sub sec 4B1.2’s definition of “crime of violence” was the residual clause. Based on Cross, the residual clause from the pre-Booker mandatory Guidelines was excised, and absent the residual clause, the application notes have no legal force. Therefore the Government could not rely on the application notes in arguing that D’Antoni was not entitled to relief.

Accordingly, the Court reversed the judgment of the district court and remanded with instructions to grant D’Antoni’s successive § 2255 motion and for resentencing consistent with this opinion. See: D’Antoni v. United States, 916 F.3d 658 (7th Cir. 2019). 

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