GREGORY B. WORMUTH, Magistrate Judge.
This matter is before me on Petitioner's Emergency Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1).
On July 21, 1998, following a jury trial, Petitioner was convicted of Attempted Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) and (d), as charged in Count I of the two-count first superseding indictment.
As reflected in the PSR, the base offense level for Petitioner's crime of Attempted Armed Bank Robbery was 25 and Petitioner's criminal history category was V. PSR ¶ 63. Therefore, the applicable sentencing range under the guidelines would ordinarily have been 100-125 months. Id. However, Petitioner was classified as a career offender pursuant to U.S.S.G. § 4B1.1, which increased the applicable mandatory sentencing range. PSR ¶¶ 35, 64. Specifically, the PSR classified Petitioner as a career offender on the basis that both the instant offense of attempted armed bank robbery as well as three of Petitioner's prior convictions constituted "crimes of violence" under the definition found in U.S.S.G. § 4B1.2(a)(2),
U.S.S.G. § 4B1.2(a) (1997).
The three prior convictions listed in the PSR as "crimes of violence" underlying the application of the career offender enhancement included: (1) a 1988 conviction for Attempt to Commit Aggravated Assault with a Deadly Weapon; (2) a 1991 conviction for False Imprisonment; and (3) a 1992 conviction for False Imprisonment, Aggravated Assault, and Robbery. PSR ¶ 64. As the statutory maximum for the instant offense of attempted armed bank robbery was 25 years, Petitioner's base offense level was adjusted to 34 and his criminal history category adjusted to VI pursuant to the career offender provision. PSR ¶ 64; see also U.S.S.G. § 4B1.1(b). Accordingly, the mandatory applicable guideline sentencing range for his offense increased to 262-327 months. PSR ¶ 64.
Petitioner made several objections to the PSR, including that his 1988 conviction was a misdemeanor rather than a felony. See cr. doc. 100 at 3. This objection was found to have merit, and the PSR was accordingly revised to reflect that Petitioner had only two prior felony convictions constituting crimes of violence—namely, the 1991 and 1992 offenses discussed above. Doc. 9 at 3; see also cr. doc. 101 at 5, cr. doc. 142 at 10. However, this amendment to the PSR did not alter Petitioner's classification as a career offender under the guidelines, as the relevant provision requires only two prior "crime of violence" convictions to trigger its application. See U.S.S.G. § 4B1.1(a). The applicable mandatory guideline sentencing range of 262-327 months of imprisonment therefore remained the same notwithstanding the revision to the PSR. See cr. doc. 142 at 12-13.
During the sentencing phase of his case, Petitioner's counsel sought a downward departure from this sentencing range on a number of asserted grounds. However, the request for downward departure was denied and Petitioner was sentenced to 262 months of imprisonment followed by a three-year period of supervised release. See cr. docs. 102, 142 at 10, 13.
Petitioner's Motion argues that the offenses of false imprisonment and robbery under New Mexico law are no longer crimes of violence in light of United States v. Johnson, 135 S.Ct. 2551 (2015). Doc. 1 at 14-15, 23-24.
The parties agree that Petitioner was not convicted of at least two predicate offenses which would qualify as "crimes of violence" under either the "elements clause" or the "enumerated offenses" clause of U.S.S.G. § 4B1.2(a)(2). See generally doc. 9. In fact, any argument to the contrary is foreclosed by the procedural history of Petitioner's criminal case. Specifically, Petitioner appealed his sentence to the Tenth Circuit Court of Appeals on several grounds, including that his 1991 false imprisonment conviction did not qualify as a "crime of violence" and that the career offender enhancement was therefore improperly applied to his sentence. See United States v. Zamora, 222 F.3d 756, 763 (10th Cir. 2000). In rejecting Petitioner's argument, the Tenth Circuit held that the New Mexico crime of false imprisonment qualified as a crime of violence solely under the residual clause of U.S.S.G. § 4B.1.2(a).
222 F.3d at 764-65. Moreover, the court added in a footnote that a case from the Sixth Circuit which held that false imprisonment was not a crime of violence was not persuasive, as that court had applied the elements clause rather than the residual clause in its analysis. See id. at 765 n.3 (citing United States v. Roberts, 986 F.2d 1026, 1034 (6th Cir. 1993)). Thus, there can be no doubt that, absent the residual clause, Petitioner's 1991 offense of false imprisonment would not qualify as a crime of violence under the guidelines.
The question that arises, then, is twofold: (1) whether the holding in Johnson applies to the mandatory guidelines so as to render the residual clause of U.S.S.G. § 4B1.1(a)(2) unconstitutional, and (2) if so, whether such a rule may be retroactively applied to vacate Petitioner's sentence. However, before the Court may address this substantive question, it must resolve the jurisdictional issue raised by the United States in its supplemental brief—namely, that Petitioner's motion is untimely as it was not filed within the one-year statutory limitation period under 28 U.S.C. § 2255(f). See doc. 12 at 4-6.
Under 28 U.S.C. § 2255, a prisoner in federal custody may collaterally attack his sentence as unconstitutional or illegal by bringing a motion in the court which imposed the sentence. 28 U.S.C. § 2255(a). However, the statute requires that such a motion be brought within one year of the later of:
Id. § 2255(f).
In Johnson, the Supreme Court held that the residual clause of the definition of "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B) — "or otherwise involves conduct that presents a serious potential risk of physical injury to another"—is unconstitutionally vague. 135 S. Ct. at 2563. Therefore, individuals could not be subject to the ACCA if their underlying prior convictions qualified as "violent felonies" only under the vague residual clause. Id. The Supreme Court announced that Johnson would apply retroactively on collateral review in Welch v. United States, reasoning that Johnson announced a substantive new rule. 136 S.Ct. 1257, 1264-65 (2016).
However, Petitioner was not sentenced pursuant to the ACCA. Instead, as described above, he received an increase to his sentencing guideline range pursuant to the career offender guideline due to his "two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The enhancement was based on two prior convictions for "crimes of violence," as defined in § 4B1.2(a). See cr. docs. 102, 142 at 10. These two prior convictions included the 1991 false imprisonment offense and the 1992 false imprisonment, aggravated assault, and robbery offenses. See PSR ¶ 64; cr. doc. 142 at 10. Petitioner asserts that Johnson nevertheless applies to his sentence because the definition of "crime of violence," as used in the career offender guideline, contains a residual clause identical to the residual clause in the ACCA. See U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. § 924(e)(2)(B)(ii). Moreover, as explained above, Petitioner's sentence would not have been subject to the career offender enhancement under the guidelines absent that residual clause. Thus, Petitioner contends that Johnson established the right he now asserts, qualifying his petition as timely under § 2255(f)(3).
The Supreme Court recently addressed the applicability of the Johnson decision to the United States Sentencing Guidelines in Beckles v. United States, 137 S.Ct. 886 (2017). In that opinion, the Supreme Court held that the guidelines are not subject to a void-for-vagueness challenge. 137 S. Ct. at 894. However, Beckles dealt with a vagueness challenge to the advisory sentencing guidelines, and the Court's holding relied extensively on the distinction between the advisory guidelines and mandatory sentence enhancements such as those compelled by statutes like the ACCA. See id. at 892-95. In contrast, Petitioner was sentenced in 1998, prior to the sentencing guidelines being declared "effectively advisory." See cr. doc. 102; see also United States v. Booker, 543 U.S. 220, 245, 258-65 (2005). Consequently, Beckles does not necessarily bar Petitioner's void-for-vagueness attack against his sentence imposed pursuant to the pre-Booker mandatory guidelines. Indeed, the underlying rationale of Beckles may support the opposite conclusion. Specifically, in deciding that Johnson does not apply to the advisory guidelines, the Beckles majority relied heavily on the distinction between mandatory enhancements to a defendant's sentence—such as the fifteen-year minimum sentence of imprisonment compelled by the ACCA—and the optional enhancements provided in the post-Booker advisory sentencing guidelines. See 137 S. Ct. at 892 ("Unlike the ACCA . . . the advisory Guidelines do not fix the permissible range of sentences. . . . Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause"). The question in a future case will be whether the ability for sentencing judge to depart under U.S.S.G. §§ 5K2.0 et seq. prior to Booker was sufficient for the pre-Booker guidelines to escape vagueness challenges.
However, while the rationale of Beckles may support the argument against the validity of the residual clause of the guidelines "crime of violence" definition prior to Booker, it significantly undermines Petitioner's argument that Johnson actually recognized the right he is currently asserting. First, rather than conducting a particular analysis of Johnson, the Beckles court focused on the antecedent question of whether the guidelines are subject to vagueness challenges generally. See 137 S. Ct. at 892-97, 898-905. The Beckles court, of course, held that, at least for defendants sentenced under an advisory sentencing guideline regime, they are not. Id. at 895. Notably, the Beckles court affirmed the judgment of the Eleventh Circuit, which, as quoted uncritically by the Supreme Court, had held that, "Johnson says and decided nothing about career-offender enhancements under the Sentencing Guidelines[.]" Id. at 891 (quoting Beckles v. United States, 616 F. App'x 415, 416 (11th Cir. 2015) (per curiam)). Given the Court's apparent agreement with this assessment of Johnson, it is difficult to conclude that Johnson recognized the Petitioner's right not to have the career offender enhancement applied to him pursuant to the residual clause of the crime of violence definition.
Second, while the majority opinion arguably only implied that the question of whether mandatory sentencing guidelines are subject to vagueness challenges remained open, Justice Sotomayor's concurrence says so explicitly. As she explained:
Id. at 903 n.4 (Sotomayor, J., concurring) (internal citations to majority opinion and amici brief omitted). Consequently, the majority and concurring opinions in Beckles lead powerfully to the conclusion that Johnson did not in fact recognize any right or rule applicable to the calculation of sentencing guideline ranges. As another magistrate judge in this district recently concluded:
Torres v. United States, Magistrate Judge's Proposed Findings and Recommended Disposition, doc. 25 in 16-cv-645 LH/WPL (D.N.M. June 20, 2017); see also Ellis v. United States, No. 2:16-CV-484-DAK, 2017 WL 2345562, at *2-*3 (D. Utah May 30, 2017) ("Because the court concludes that Johnson does not apply to [the petitioner's] case and that [] the Supreme Court . . . has [not] directly recognized a right to modify a sentence increased under the residual clause of U.S.S.G. § 4B1.2 before Booker, the court concludes that . . . [the] petition is untimely [under § 2255(f)(3)].").
Finally, the conclusion that the Supreme Court has not yet recognized a right to a vagueness challenge of sentencing guideline provisions (in Johnson or otherwise) is further bolstered by considering the import of a hypothetical future Supreme Court decision. Assume in the future that the Supreme Court rules that pre-Booker sentencing guidelines are subject to vagueness challenges. Would such a case recognize a new rule or right? "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989).
Chaidez, 568 U.S. at 1107 (quotations omitted) (emphasis in original). The Supreme Court accordingly held that "garden-variety applications of [a] test . . . do not produce new rules." Id. Again, I cannot conclude that, should the Supreme Court decide that the pre-Booker residual clause of U.S.S.G. § 4B1.2 is constitutionally void for vagueness, such a result would be a garden-variety application of Johnson. Instead, it would be finally addressing the question left open in Beckles. See, e.g., United States v. Johnson, 457 U.S. 537, 551 (1982) (explaining that a prior precedent of Payton v. New York, 445 U.S. 573 (1980) "did not simply apply settled precedent to a new set of facts" because the Payton Court "acknowledged that the `important constitutional question presented' there had been `expressly left open in a number of [their] prior opinions.'"). In short, the hypothetical future case would itself be recognizing a new right. Given that conclusion, it cannot be said that Johnson has already recognized the right.
For Petitioner's motion to be timely such that this Court has jurisdiction to grant it, he must establish that Johnson recognized the right he asserts and that such right was made retroactive. 28 U.S.C. § 2255(f)(3). The right asserted by Petitioner is that procedural due process prohibits enhancing his sentencing guideline range pursuant to the residual clause of the "crime of violence" definition in § 4B1.2(a)(2) of the guidelines because that clause is void for vagueness. However, an essential component of such a right is that sentencing guidelines are subject to a void-for-vagueness challenge generally. Johnson simply does not recognize that premise. As such, it cannot recognize the right asserted. As the Eleventh Circuit reasoned, "Johnson says and decided nothing about career-offender enhancements under the Sentencing Guidelines . . . ." Beckles, 616 F. App'x at 416.
Because the right asserted by Petitioner has not been recognized in Johnson or otherwise, and because it does not qualify as timely under any other subsection of § 2255(f), I recommend that the Court DENY Petitioner's § 2255 Motion as untimely and DISMISS for lack of jurisdiction.
