Sentencing – Career Criminal

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7^th Circuit Court of Appeals

Case Name: Robert Yates v. United States of America

Case No.: 16-3048

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Sentencing – Career Criminal

Thirteen years ago, Robert Yates was sentenced as an armed career criminal under 18 U.S.C. §924(e). The district court concluded that he had six qualifying prior convictions; the statute provides that three or more require an enhanced sentence. After the Supreme Court held in Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), that the “residual clause” in §924(e)(2)(B)(ii) is unconstitutionally vague, and made that decision retroactive, Welch v. United States, 136 S. Ct. 1257 (2016), Yates filed this collateral attack. He contends that after Samuel Johnson only two qualifying convictions remain, so that 28 U.S.C. §2255(f)(3) restarts the time for collateral review. The prosecutor concedes that the petition is timely and that Samuel Johnson knocks out three of the six convictions but maintains that Yates’s conviction of battery by a prisoner, in violation of Wis. Stat. §940.20(1), qualifies as a violent felony under the “elements clause” of §924(e)(2)(B)(i) because it “has as an element the use, attempted use, or threatened use of physical force against the person of another”. Samuel Johnson does not affect the elements clause of §924(e). See, e.g., Stanley v. United States, 827 F.3d 562 (7th Cir. 2016). The district court agreed with the prosecutor and dismissed this proceeding. 2016 U.S. Dist. LEXIS 79058 (W.D. Wis. June 17, 2016).

Affirmed

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