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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) Case No. 20-CV-2555

)

MARK POLCHAN ) Judge Guzman

AGREED STATEMENT

IN SUPPORT OF POLCHAN’S MOTION

FOR RELIEF UNDER 28 U.S.C. § 2255

The Seventh Circuit granted Polchan leave to file a successive motion for 

relief under 28 U.S.C. § 2255. The Seventh Circuit transmitted Polchan’s 

motion to this Court for further consideration. This Court set a briefing 

schedule for the motion. The parties have conferred regarding the disposition 

of Polchan’s request for post-conviction relief. After consulting with the 

government, Polchan now presents this agreed statement in support of his 

section 2255 motion.

In United States v. Polchan, et al., No. 08 CR 115-1, Polchan was charged 

in the third superseding indictment with various offenses, including use of a 

destructive device under 18 U.S.C. § 924(c) (Count 5) in relation to a crime of 

violence (Counts 3 and 4). Polchan was convicted on all counts. On Count 5, 

the Court sentenced Polchan to 360 months in prison, to run consecutively to 

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360 months on the other counts in the indictment. The sentence on Count 5 

was a mandatory consecutive sentence as provided in section 924(c).

Polchan sought and received permission from the Seventh Circuit to 

challenge his conviction on Count 5, since the Supreme Court in United States 

v. Davis, -- U.S. --, 139 S. Ct. 2319 (2019), invalidated the residual clause of 

section 924(c). 

Before this Court, the parties agree that the Count 5 conviction can no 

longer stand after Davis and should be vacated. Absent an enhanced penalty 

if “death results,” violation of the federal arson statute, 18 U.S.C. § 844(i), is 

not a crime of violence. 1 Under 18 U.S.C. § 924(c)(A), a crime of violence 

requires the use of force against the person or property of another. Because 

§ 844(i) includes arson of one’s own property, it does not categorically require 

the use of physical force against the “property of another” and therefore does 

not qualify as a crime of violence under § 924(c) after Davis.

The parties also agree that the Court, after vacating the Count 5 

conviction, should conduct a full resentencing on the remaining counts. To that 

end, the parties request that the Court order Polchan to be brought before the 

Court for an in-court resentencing on the remaining counts and, further, that 

the Court order the preparation of a supplemental pre-sentence investigation 

1 The government also maintains that arson under § 844(f)(1), which applies to arson 

against federal property, is a crime of violence under § 924(c)(3)(A)

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report. In light of current events, the parties suggest that the Court set a 

resentencing date in the fall of 2020 or shortly thereafter.

Dated May 27, 2020, at Chicago, Illinois.

Respectfully submitted,

FEDERAL DEFENDER PROGRAM

John F. Murphy,

Executive Director

By: /s/ William H. Theis

William H. Theis

FEDERAL DEFENDER PROGRAM

55 E. Monroe Street, Suite 2800

Chicago, IL 60603

(312) 621-8300

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CERTIFICATE OF SERVICE

The undersigned, William H. Theis, an attorney with the Federal 

Defender Program, hereby certifies that in accordance with FED.R.CRIM. P. 

49, FED. R. CIV. P5, LR5.5, and the General Order on Electronic Case Filing 

(ECF), the following document(s):

AGREED STATEMENT

IN SUPPORT OF POLCHAN’S MOTION

FOR RELIEF UNDER 28 U.S.C. § 2255

was served pursuant to the district court's ECF system as to ECF filings, if 

any, and were sent by first-class mail/hand delivery on May 27, 2020, to 

counsel/parties that are non-ECF filers.

FEDERAL DEFENDER PROGRAM

John F. Murphy,

Executive Director

By: /s/ William H. Theis

William H. Theis 

FEDERAL DEFENDER PROGRAM

55 E. Monroe Street, Suite 2800

Chicago, IL 60603

(312) 621-8300

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