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United States v. Wiskow

United States District Court, D. Minnesota

September 5, 2017

United States of America, Respondent-Plaintiff,
Cain Lee Wiskow, Petitioner-Defendant. Civil No. 17-16 (DWF)




         This matter is before the Court on Petitioner-Defendant Cain Lee Wiskow's (“Petitioner-Defendant”) Motion to Vacate Sentence Under 28 U.S.C. § 2255. (Doc. No. 74.) The United States of America opposes Petitioner-Defendant's motion. (Doc. No. 87.) Petitioner-Defendant specifically asserts that he was improperly sentenced as a career offender under § 4B1.1 of the Sentencing Guidelines. Petitioner-Defendant states that the Court, in including the two convictions for crimes of violence, pursuant to U.S.S.G. § 4B1.2, namely, a 2000 Wisconsin conviction for Battery by a Prisoner Under Wisconsin Statute § 940.20(1) (1999-2000) and a 2008 Minnesota conviction for First-Degree Aggravated Robbery under Minnesota Statute § 609.245, subdivision 1, erred because neither are crimes of violence. The Government opposes Petitioner-Defendant's motion, alleging that he has two prior convictions that qualify him as a career offender pursuant to § 4B.1 of the Guidelines and that Petitioner-Defendant's Johnson v. United States, 135 S.Ct. 2551 (2015), argument was rejected by the Supreme Court in United States v. Beckles, 137 S.Ct. 886, 890 (2017). For the reasons that the Court discusses below, the Court denies Petitioner-Defendant's motion.


         On December 9, 2014, Petitioner-Defendant was charged in a single-count indictment with Armed Bank Robbery, in violation of 18 U.S.C. §§ 2113(a) and (d). (Doc. No. 17; Presentence Investigation Report (“PSR”) at ¶ 1.) On April 1, 2015, Petitioner-Defendant pled guilty pursuant to a written plea agreement to one count of the lesser included charge of Bank Robbery, in violation of 18 U.S.C. § 2113(a). (Doc. No. 53; PSR at ¶ 2.) In the written plea agreement, as both parties have noted, Petitioner-Defendant agreed that he was a career offender and would be sentenced as such under the Guidelines, as follows:

iii. Pursuant to Guidelines § 4B1.1(a), defendant is a career offender because he was 18 years old at the time of the offense, the offense involved a crime of violence, and defendant has at least two prior felony convictions for a crime of violence. Therefore, pursuant to Guidelines § 4B1.1(b), defendant's offense level is 32 because the statutory maximum sentence is 20 years in prison.

(Doc. No. 54.)

         Prior to sentencing, the PSR concluded that Petitioner-Defendant had four prior convictions qualifying him as a career offender pursuant to the Guidelines, as follows:

(1) 2000 Conviction for Burglary of Building or Dwelling (Felony) in Trempealeu County, WI (WI Stat. §§ 943.10(1)(a) and (2)(b));
(2) 2000 Conviction for Battery by Prisoners (Felony) in Trempealeu County, WI (WI Stat. § 940.20(1));
(3) 2008 Conviction for Fleeing a Police Officer in a Motor Vehicle in Olmsted County, Rochester, (MN Stat. § 609.487, subdivision 3); and
(4) 2008 Conviction for First Degree Aggravated Robbery in Olmsted County, MN (MN Stat. § 609.245, subdivision 1).

(PSR at ¶¶ 39-40, 45-46.)

         However, between the time of the plea and Petitioner-Defendant's sentencing, the Supreme Court decided Johnson, which invalidated the residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague. Consequently, prior to sentencing, but after Petitioner-Defendant's plea, in his sentencing position filed on December 9, 2015, Petitioner-Defendant objected to his career offender status, analogizing Johnson's ACCA holding to § 4B1.1(a) of the Guidelines. (Doc. No. 63.) At that time, Petitioner-Defendant's argument was based upon the Johnson decision and there were no other objections concerning his career offender status.

         The sentencing hearing occurred on December 14, 2015. At that time, Petitioner-Defendant objected to three of the four convictions the PSR found to be career-offender-qualifying: (1) the 2000 Wisconsin Burglary conviction; (2) the 2000 Wisconsin Battery conviction; and (3) the 2008 Minnesota Fleeing conviction. Id. at 2-3. Petitioner-Defendant did not object to the 2008 Minnesota Robbery conviction and this Court noted at that time that the robbery conviction was the one of the four qualifying convictions that was not at issue. Id. at 2.

         As clearly noted by the Government, this Court concluded that under existing Eighth Circuit law and “without any reliance on the residual clause, ” that the 2008 Minnesota Robbery conviction and the 2000 Wisconsin Battery conviction both served as career-offender-qualifying convictions. As a result, this Court did not reach the issue of whether the 2000 Wisconsin Burglary conviction and the 2008 Minnesota Fleeing conviction served as predicate offenses.

         This Court sentenced Petitioner-Defendant to 164 months, which was within the 151-188 months Guidelines range. (Doc. No. 70; Sent. Tr. at 8.)

         Significantly, however, this Court's view at the sentencing, which continues to be the Court's view as of this date, that pursuant to the § 3553(a) factors, the Court would have imposed a 164-month sentence without regard to Petitioner-Defendant's status as a career offender. (Sent. Tr. at 40-41.) Specifically, the Court stated:

And my view today is, and I am going to take into account the 14 months of - because actually, to be quite candid, under the 3553(a) factors alone, apart from the Guidelines, if it wasn't for the 14 months and what I would call hard time, and that is relevant under nature of the punishment, I would be probably up at around close to 188 months. What I will be doing today taking all of the factors into account, is imposing a 164-month sentence.

(Sent. Tr. at 41.)

         On January 3, 2017, Petitioner-Defendant filed a habeas petition seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 74.) As noted above, Petitioner-Defendant argues that neither his 2000 Wisconsin Battery conviction nor ...

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