Antoine Hill v. United States ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1253
ANTOINE HILL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________
On Motion Seeking an Order that the District Court for the
Northern District of Illinois, Eastern Division, Entertain a
Second or Successive Motion for Collateral Review.
____________________
SUBMITTED FEBRUARY 8, 2016;
INITIAL DECISION FEBRUARY 29, 2016;
ON RECONSIDERATION — JUNE 27, 2016
____________________
Before BAUER, POSNER, and MANION, Circuit Judges.
POSNER, Circuit Judge. In 2003 Antoine Hill was convict-
ed in a federal district court of several drug offenses, see 21
U.S.C. §§ 843(b), 846, and sentenced as a career offender, ini-
tially to 360 months, which was within his guidelines range
of 360 months to life. But his sentence was reduced to 226
months when the sentencing guidelines were held in United
2 No. 16-1253
States v. Booker, 543 U.S. 220 (2005), not to be mandatory. See
also United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
Hill had the status of career offender because of two ear-
lier convictions, both under Illinois law. One was attempted
murder (which took the form of shooting at a car and
wounding two of its occupants), in violation of what is now
720 ILCS 5/8-4(a) (“a person commits the offense of attempt
when, with intent to commit a specific offense, he or she
does any act that constitutes a substantial step toward the
commission of that offense”). The other offense was aggra-
vated discharge of a firearm (on that occasion he had shot at
a person rather than a car), in violation of 720 ILCS 5/24-
1.2(a) (“a person commits aggravated discharge of a firearm
when he or she knowingly or intentionally discharges a fire-
arm … in the direction of another person or in the direction
of a vehicle he or she knows or reasonably should know to
be occupied by a person”).
Both offenses were “crimes of violence” within the
meaning of the federal Sentencing Guidelines, which in
U.S.S.G. § 4B1.2(a)(1) define a crime of violence as “any of-
fense under federal or state law, punishable by imprison-
ment for a term exceeding one year, that has as an element
the use, attempted use, or threatened use of physical force
against the person of another”—an exact description of the
two offenses that Hill had committed with a firearm. The of-
fenses marked him as a career offender, see U.S.S.G.
§ 4B1.1(a)(3), raising the top of his guidelines sentencing
range and thereby providing an additional ground for a long
sentence.
On February 8 of this year he filed a motion in our court
under 28 U.S.C. § 2244(b)(3)(A), which provides that “before
No. 16-1253 3
a second or successive application permitted by this section
is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” Hill sought our
permission to file a successive motion in the district court to
vacate his sentence under 28 U.S.C. § 2255(a), which so far as
relates to this case entitles a federal prisoner to be released if
his imprisonment violates his constitutional rights. The basis
of the motion was Johnson v. United States, 135 S. Ct. 2551,
2556 (2015), which held unconstitutionally vague the “resid-
ual clause” of the Armed Career Criminal Act, a catch-all
provision (mirrored in U.S.S.G. § 4B1.2(a)(2)) that deems any
crime that “otherwise involves conduct that presents a seri-
ous potential risk of physical injury to another” a “crime of
violence.”
We (the same panel as in the present phase of the case)
had refused in a brief order. See Hill v. United States, No. 16-
1253 (7th Cir. Feb. 29, 2016). That might have been expected
to end the case, in view of the unequivocal language of 28
U.S.C. § 2244(b)(3)(E): “the grant or denial of an authoriza-
tion by a court of appeals to file a second or successive ap-
plication shall not be appealable and shall not be the subject
of a petition for rehearing or for a writ of certiorari.” But
there is no bar to a court of appeals’ deciding on its own ini-
tiative to rehear a case. See, e.g., Cooper v. Woodford, 358 F.3d
1117, 1118 (9th Cir. 2004) (en banc); In re Byrd, 269 F.3d 585,
585–86 (6th Cir. 2001) (en banc); Triestman v. United States,
124 F.3d 361, 367 (2d Cir. 1997); cf. United States v. Holcomb,
657 F.3d 445 (7th Cir. 2011); United States v. Melendez, 60 F.3d
41, 44 (2d Cir. 1995), vacated in part on other grounds, 516
U.S. 1105 (1996).
4 No. 16-1253
Application note 1 to U.S.S.G. § 4B1.2(a)(1) says that a
“‘crime of violence’ include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit such”
crimes, and Illinois law makes the sentencing range for at-
tempt depend on the crime that was attempted (not neces-
sarily committed), 720 ILCS 5/8-4(c), which in this case was
murder and so subjected Hill to punishment for murder
even though his attempt to commit it failed. The district
judge who sentenced Hill, and we the judges of the appellate
panel, therefore know with certainty that Hill committed
two crimes of violence and that his sentence—amplified by
those crimes—for the federal drug offenses of which he was
convicted was light, considering the circumstances: it was 11
years below the bottom of the applicable guidelines range
(360 months). Because his sentence is proper, to extend this
litigation (which began in 2002) to enable him to make a fu-
tile plea of mercy in the district court wouldn’t make sense.
Our February 29 denial of permission to Hill to file another
collateral attack on his sentence shall therefore stand.