Filed: Feb. 11, 2015
Latest Update: Mar. 02, 2020
Summary: , 5, We note that this is not a case in which the state court, judge vacated the state convictions with the primary purpose of, affecting the federal sentence, and this opinion does not address, that issue. As explained above, Cuevas's claim is, not a freestanding guidelines claim.F.3d at 1143.
United States Court of Appeals
For the First Circuit
No. 14-1296
ALEXANDER CUEVAS,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Barron, Circuit Judges.
Linda J. Thompson, with whom Thompson & Thompson, PC was
on brief, for appellant.
Michael A. Rotker, Attorney, United States Department of
Justice, Criminal Division, with whom Carmen Ortiz, United States
Attorney, Timothy E. Moran, Assistant United States Attorney,
Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh,
Deputy Assistant Attorney General, were on brief, for appellee.
February 11, 2015
LYNCH, Chief Judge. This appeal requires us to decide a
narrow question: Does a criminal defendant whose federal sentence
was increased based on state convictions that have since been
vacated for the reasons here and who seeks to obtain resentencing
on the federal charge have a claim that is cognizable under 28
U.S.C. § 2255? We hold that the claim is cognizable. We reverse
the district court's contrary determination and remand for prompt
further proceedings consistent with this opinion.
I.
On August 12, 2011, Alexander Cuevas was convicted by a
jury of one count of conspiracy to possess with intent to
distribute less than 100 grams of heroin and four counts of
distributing and possessing with intent to distribute heroin. The
Presentence Report calculated Cuevas's base offense level at 24 and
his criminal history category at IV, yielding a Guidelines
imprisonment range of 77 to 96 months. The district court adopted
the probation office's calculations -- which Cuevas agrees were
correct -- and sentenced Cuevas to 84 months imprisonment and a
six-year term of supervised release. Judgment was entered on
December 6, 2011. Cuevas appealed his conviction (but not his
sentence), and this court affirmed. United States v. Cuevas, No.
11-2473 (1st Cir. Apr. 5, 2013).
Before Cuevas's trial, the government had filed an
Information to Establish a Prior Conviction which alleged that
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Cuevas had two felony drug convictions in Massachusetts state
court: an October 3, 2007, conviction for possession of a Class A
substance in Lynn District Court (No. 0713-CR-1371) and a November
30, 2007, conviction for possession with intent to distribute a
Class A substance in Lynn District Court (No. 0613-CR-7061). These
convictions influenced Cuevas's sentence on the federal charges in
two ways relevant here. First, the conviction in No. 0613-CR-7061
added two criminal history points to Cuevas's criminal history
score, bringing it to 7, which translates to a criminal history
category of IV. Second, the fact of the convictions triggered a
mandatory minimum supervised release term of six years. See 21
U.S.C. § 841(b)(1)(C).
While the direct appeal in this case was pending, it came
to light that Annie Dookhan, a chemist at the Massachusetts
Department of Public Health's Hinton Drug Laboratory, had falsified
certificates of drug analysis and contaminated negative samples so
that they would test positive. It was difficult to ascertain which
samples under her supervision resulted in falsified reports and
which did not. Dookhan had participated in the drug analysis
leading to both of Cuevas's state drug convictions, so Cuevas filed
motions for a new trial in both cases. On December 5, 2012, the
state court vacated the drug count in No. 0713-CR-1371. The
court's order reads: "Ms. Dookhan was the confirmatory chemist;
this fact was not known to the jury. The interests of justice
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mandate a new trial under these circumstances."1 On April 11,
2013, the state court vacated the conviction in No. 0613-CR-7061,
noting that Dookhan was the chemist and that the government did not
object to Cuevas's motion for a new trial. The state filed a nolle
prosequi as to both of the vacated convictions.
These developments had two potential effects on Cuevas's
Guidelines calculation. First, the vacatur and dismissal of the
conviction in No. 0613-CR-7061 eliminated two of his seven criminal
history points.2 This would have reduced his criminal history
category from IV to III and his Guidelines imprisonment range from
77-96 months to 63-78 months. Second, the combined effect of the
vacaturs and dismissals was to extinguish both convictions forming
the basis for the government's Information to Establish a Prior
Conviction, thereby reducing the mandatory minimum term of
supervised release from six years to three years. See 21 U.S.C.
§ 841(b)(1)(C).
Cuevas's current projected release date is December 10,
2015. His release on that date is contingent on successful
completion of a drug abuse program and transition to a halfway
house. Were he to be resentenced at the high end of his revised
1
Convictions on other counts in that case, including a
charge for carrying a firearm without a license, remained intact.
2
The vacatur of the drug count in No. 0713-CR-1371 did not
have any effect on Cuevas's criminal history score because the
conviction on a firearm charge in that case remained intact.
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Guidelines range (78 months), his projected release date would be
June 15, 2015.
On June 3, 2013, Cuevas, acting pro se, filed a motion to
vacate under 28 U.S.C. § 2255. He argued that, under Johnson v.
United States, 544 U.S. 295 (2005), United States v. Pettiford,
101
F.3d 199 (1st Cir. 1996), and like cases, he was entitled to reopen
his federal sentence in light of the vacatur of the underlying
state convictions. The government concedes that Cuevas's § 2255
motion was timely filed, and that his claim is not procedurally
defaulted.
The district court denied the motion to vacate in a March
13, 2014, memorandum and order. The court characterized Cuevas's
claim as one alleging "an erroneous application of the advisory
Sentencing Guidelines" and noted that "[m]ost circuit courts that
have considered the issue have agreed . . . that section 2255 does
not apply to errors in the application of the Sentencing Guidelines
unless such errors result in a manifest miscarriage of justice."
The district court agreed with this view and held that Cuevas's
claim was not cognizable, stating that this was not "a case in
which th[e] court discerns a manifest injustice counseling against
closing the books on Cuevas's sentence."
The district court granted Cuevas a Certificate of
Appealability on the issue of whether "nonconstitutional Guidelines
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errors are susceptible to attack only in instances of manifest
injustice." The COA was later expanded to include the issue of
whether, under Mateo v. United States, 398
F.3d 126 (1st Cir. 2005) and Johnson v. United
States, 544 U.S. 295, 303 (2005), Cuevas's
claim is cognizable under [28 U.S.C.] § 2255,
including whether he claims the right to be
released on the ground that the sentence "was
imposed in violation of the Constitution" or
"is otherwise subject to collateral attack."
28 U.S.C. § 2255(a).
II.
28 U.S.C. § 2255(a) provides that a federal prisoner "may
move the court which imposed the sentence to vacate, set aside or
correct the sentence" on one of the following four grounds:
[1] that the sentence was imposed in violation
of the Constitution or laws of the United
States, or [2] that the court was without
jurisdiction to impose such sentence, or [3]
that the sentence was in excess of the maximum
authorized by law, or [4] is otherwise subject
to collateral attack.
Cuevas's brief argues principally that the state
convictions upon which the federal sentencing calculations were
based were vacated because they were obtained unconstitutionally,
and suggests that accordingly his claim is cognizable under the
first prong of § 2255(a). Cuevas's premise is incorrect. The
state court did not vacate the convictions on constitutional
grounds.3 Rather, the court vacated the drug count in No.
3
We therefore need not address whether, if a state court
conviction is ruled unconstitutional, a federal sentence
enhancement on the basis of that conviction would be rendered
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0713-CR-1371 because "[t]he interests of justice mandate[d] a new
trial" in light of Dookhan's misconduct, and it vacated the
conviction in No. 0613-CR-7061 because Dookhan was the chemist and
the government did not object to Cuevas's motion for a new trial.
Under Massachusetts law, "a judge may grant a motion for a new
trial any time it appears that justice may not have been done."
Commonwealth v. Scott, 5 N.E.3d 530, 539 (Mass. 2014) (citing Mass.
R. Crim. P. 30(b)). Such motions are not limited to constitutional
errors. Thus, the record does not reflect that the state
convictions were vacated on constitutional grounds.
The government, like the district court, has
characterized Cuevas's claim as one alleging a "misapplication[] of
the federal Sentencing Guidelines." The government argues that
such errors are not cognizable under any of the four prongs of
§ 2255. But this characterization of the claim is not accurate
either. A "Guidelines-misapplication claim" would be a claim that
the district court legally erred in its application of the
Guidelines to undisputed underlying facts -- for example, by
designating a defendant as a "career offender" based on a
conviction for an offense that the court erroneously held was a
crime of violence. Spencer v. United States, 773 F.3d 1132 (11th
Cir. 2014) (en banc), provides a useful example. There, the
petitioner had been convicted and sentenced as a career offender
unconstitutional.
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based on a prior conviction for felony child abuse. Id. at 1135.
His conviction and sentence were affirmed on direct appeal.
Id. at
1136. After the appeal was decided, the Supreme Court issued Begay
v. United States,
553 U.S. 137 (2008), which clarified the
standards for classifying individuals as career offenders.
The defendant then filed a § 2255 petition seeking to
vacate his sentence. He argued that Begay "ma[de] clear that the
district court and [the Eleventh Circuit] erroneously classified
him as a 'career offender' [because the] prior conviction for
felony child abuse . . . [was] not a 'crime of violence.'"
Spencer, 773 F.3d at 1135.
In a 5-4 en banc decision, the Eleventh Circuit held that
Spencer could not "collaterally attack his sentence based on a
misapplication of the advisory guidelines." Id. The court noted
that "Spencer's sentence f[ell] below the statutory maximum, and
his prior conviction for felony child abuse ha[d] not been
vacated,"
id., specifically distinguishing Spencer's claim of legal
error in application of the Guidelines from a claim like Cuevas's,
where the underlying conviction was vacated, see
id. at 1143
("Spencer's prior conviction has not been vacated, and that
distinction matters.").4
4
The cases that the government cites for its argument that
"misapplications of the federal Sentencing Guidelines" are not
cognizable in § 2255 proceedings are all of this ilk. See, e.g.,
Hawkins v. United States, 706 F.3d 820, 822 (7th Cir. 2013)
(petitioner claimed that district court had sentenced him as a
-8-
Here, Cuevas acknowledges that the district court's
calculations were legally correct at the time of sentencing. His
claim of error is of a different stripe: he argues that he is
entitled to resentencing because the convictions upon which those
calculations were based are no longer valid. This error is not
jurisdictional. The narrow question before us is whether Cuevas's
claim is cognizable under the "otherwise subject to collateral
attack" prong of § 2255(a).5
We hold that it is, under Supreme Court and First Circuit
precedent. The fourth prong of § 2255(a) encompasses "assignments
of error that reveal 'fundamental defect[s]' which, if uncorrected,
career offender based on an erroneous determination that a prior
conviction was a crime of violence), op. supplemented on den. of
reh'g, 724 F.3d 915 (7th Cir. 2013); Sun Bear v. United States,
644
F.3d 700, 702 (8th Cir. 2011) (en banc) (same); United States v.
Pregent,
190 F.3d 279, 281, 283-84 (4th Cir. 1999) (petitioner
claimed that the district court had erred in his Guidelines
calculation by assigning criminal history points to convictions
that "encompassed activity that was already included as part of the
relevant offense conduct"); Auman v. United States,
67 F.3d 157,
159-61 (8th Cir. 1995) (petitioner claimed that district court had
sentenced him as a career offender based on an erroneous
determination that a prior conviction was a crime of violence);
Knight v. United States,
37 F.3d 769, 771-74 (1st Cir. 1994)
(petitioner claimed that the district court had erroneously added
points to his criminal history score for convictions that were part
of the offense of conviction and that the court had erroneously
imposed a fine beyond the petitioner's ability to pay); Scott v.
United States,
997 F.2d 340, 340-42 (7th Cir. 1993) (petitioner
claimed that district court had erroneously increased his criminal
history category under U.S. Sentencing Guidelines Manual § 5K2.6).
5
We note that this is not a case in which the state court
judge vacated the state convictions with the primary purpose of
affecting the federal sentence, and this opinion does not address
that issue. There is no suggestion that occurred here.
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will 'result[] in a complete miscarriage of justice,' or
irregularities that are 'inconsistent with the rudimentary demands
of fair procedure.'" David v. United States, 134 F.3d 470, 474
(1st Cir. 1998) (alterations in original) (quoting Hill v. United
States,
368 U.S. 424, 428 (1962)). "In other words, . . . a
cognizable section 2255 claim must reveal 'exceptional
circumstances' that make the need for redress evident."
Id.
Applying this test, we find that the facts in Cuevas's case --
namely, the vacatur of his state convictions in light of Annie
Dookhan's involvement in those cases -- are sufficiently
exceptional such that his claim is cognizable under § 2255. Our
holding is narrow. We need not and do not address the
cognizability of a claim, like the one at issue in Spencer, that
the sentencing court legally erred in applying the Guidelines.
In Johnson v. United States, 544 U.S. 295 (2005), the
Supreme Court addressed the issue of "when the 1-year statute of
limitations in [§ 2255] begins to run in a case of a prisoner's
collateral attack on his federal sentence on the ground that a
state conviction used to enhance that sentence has since been
vacated."
Id. at 298. The petitioner, Johnson, had been sentenced
in federal court in 1994 as a career offender under U.S. Sentencing
Guidelines Manual § 4B1.1 on the basis of two 1989 drug convictions
in Georgia.
Id. In 1998, one of those convictions was vacated,
and Johnson then filed a § 2255 motion in federal district court
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seeking to vacate the enhanced federal sentence on the basis of the
vacatur of the state conviction. Id. at 300-01. The district
court denied the motion as untimely under the Antiterrorism and
Effective Death Penalty Act's 1-year statute of limitations, and
the Eleventh Circuit affirmed.
Id. at 301-02.
The Supreme Court held that the vacatur of the state
conviction was a "fact" triggering a new 1-year limitations period
under 28 U.S.C. § 2255(f)(4), but that a petitioner may only take
advantage of that provision if he has "sought [the vacatur of the
predicate conviction] with due diligence in state court, after
entry of judgment in the federal case with the enhanced sentence."
Id. at 298. Because Johnson had unreasonably delayed in attacking
his state court conviction, the Court affirmed the dismissal of his
§ 2255 motion.
Id. at 311.
In the course of its opinion, the Court noted the
parties' agreement that, "if [Johnson] filed his § 2255 motion in
time, he [would be] entitled to federal resentencing now that the
State has vacated one of the judgments supporting his enhanced
sentence." Id. at 302-03. The Court explained that this
proposition had been a "premise" of its prior cases.
Id. at 303
(citing Custis v. United States,
511 U.S. 485 (1994); Daniels v.
United States,
532 U.S. 374 (2001)).
Johnson strongly suggests that a defendant like Cuevas –
whose predicate state convictions were vacated in the interests of
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justice because of Dookhan's misconduct -- may reopen his sentence
in a § 2255 proceeding. In Johnson, the defendant's state court
conviction had been vacated because he had not affirmatively waived
his right to counsel in the state court proceeding. Id. at 301.
Similarly, the circumstances here support Cuevas's § 2255 claim.
To be sure, the relevant language from Johnson was dicta, but
"federal appellate courts are bound by the Supreme Court's
considered dicta almost as firmly as by the Court's outright
holdings, particularly when, as here, a dictum is of recent vintage
and not enfeebled by any subsequent statement." McCoy v. Mass.
Inst. of Tech.,
950 F.2d 13, 19 (1st Cir. 1991); see also Igartúa
v. United States,
626 F.3d 592, 605 n.15 (1st Cir. 2010)
("Carefully considered Supreme Court dicta, though not binding,
'must be accorded great weight and should be treated as
authoritative.' Although the Supreme Court may ignore its own
dicta, we are a lower court bound by the Supreme Court." (citations
omitted)).
We are particularly inclined to treat the Johnson dicta
as authoritative since, were it not accurate, the Johnson opinion
would have been a largely theoretical exercise. The statute of
limitations issue would have been irrelevant if Johnson's claim
were not cognizable in a § 2255 proceeding in the first place. See
Spencer, 773 F.3d at 1168 & n.2 (Rosenbaum, J., dissenting). And
this court has in fact approvingly cited Johnson for the precise
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proposition in question. See Rossetti v. United States, 773 F.3d
322, 331 (1st Cir. 2014).
Our decision in Pettiford lends further support to our
conclusion. There, we confronted a § 2255 petition brought by a
defendant who had been sentenced in 1991 to a mandatory fifteen-
year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(1), based on nine prior state convictions for violent
felonies. Pettiford, 101 F.3d at 200. In 1994, eight of the nine
state convictions were vacated, and shortly thereafter a federal
district court granted relief under § 2255 and reduced the
defendant's sentence.
Id. This court rejected the government's
contention that the claim was not cognizable under § 2255.
Id. at
201. We relied in part on the Supreme Court's decision in Custis
v. United States,
511 U.S. 485 (1994), in which the Supreme Court
stated in dicta that a petitioner who "is successful in attacking
. . . state sentences . . . may then apply for reopening of any
federal sentence enhanced by the state sentences."
Pettiford, 101
F.3d at 200 (quoting
Custis, 511 U.S. at 497). We note that
Johnson also relied on Custis. See
Johnson, 544 U.S. at 303.
The government argues that Pettiford is distinguishable
because it involved the ACCA rather than the Sentencing Guidelines.
This distinction matters, says the government, because
misapplications of the ACCA "necessarily produce[] a sentence 'in
excess of the maximum authorized by law,' within the meaning of the
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[third] clause of Section 2255(a)." But Pettiford's rationale was
not so limited. Pettiford did not rely on the third clause of the
statute. See 101 F.3d at 201 ("[W]hether on constitutional or
grounds otherwise subject to collateral attack, we concur with the
district court's recognition of federal habeas jurisdiction."
(emphasis added)). We read Pettiford (and Custis) as also
applicable to cases involving vacaturs of state convictions which
affect federal Guidelines sentences. Many courts have agreed,
finding that there is no principled difference between enhancements
under the ACCA and increases under the Sentencing Guidelines. See
United States v. Caldwell, No. 97-5252, 210 F.3d 373, at *9 (6th
Cir. Mar. 23, 2000) (unpublished table opinion) (collecting cases);
see also, e.g., Mateo v. United States,
398 F.3d 126, 134 (1st Cir.
2005) (noting that the "underlying principle" of Pettiford applies
to Guidelines errors as well as to the ACCA); United States v. Doe,
239 F.3d 473, 475 (2d Cir. 2001); United States v. LaValle,
175
F.3d 1106, 1108 (9th Cir. 1999). Johnson itself supports this
proposition.
See 544 U.S. at 303 (equating enhancements under the
ACCA with enhancements under the Sentencing Guidelines).
The government's attempts to distinguish Mateo, which
also supports our holding, are similarly unavailing. In that case,
the defendant's federal sentence was enhanced because of a state
drug conviction that was later vacated on constitutional grounds.
Mateo, 398 F.3d at 127-28, 134. Relying on Pettiford, we held that
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§ 2255 relief was appropriate, and we rejected the government's
contention that the claim was not cognizable on collateral review.
Id. at 133-36. Here, the government argues that Mateo is
distinguishable because Cuevas's state convictions, unlike Mateo's,
were not vacated on constitutional grounds, but we are not
persuaded. Mateo did not rely solely on the first prong of
§ 2255(a) in order to hold the claim cognizable. Instead, Mateo
noted that non-constitutional claims are cognizable if they meet
the "miscarriage of justice" standard of the fourth prong -- that
is, the fourth prong is not limited to constitutional errors.
Id.
at 136. And Mateo's holding appeared to rest at least in part on
the fourth prong. See
id. ("[T]he state order vacating Mateo's
guilty plea and ordering a new trial rested upon the violation of
Mateo's right to have entered a voluntary and knowing plea. We
have described such a violation as one of constitutional dimension
and, in any event, as a claim cognizable under § 2255 on the basis
of which a district court may properly reopen a federal
sentence."). Here, Cuevas's state convictions were vacated in the
"interests of justice" on the basis of a determination that the
conviction could no longer stand given what the Supreme Judicial
Court of Massachusetts later determined was "egregious"
governmental misconduct in the lab that certified the test results
on which Cuevas's state convictions rested.
Scott, 5 N.E.3d at
535. There is no reason that a fourth-prong challenge to a
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sentence in these circumstances should fare less well than the
claim we found cognizable in Mateo.
The majority of our sister circuits have held or
expressly assumed that a defendant whose sentence is increased
based on convictions that are subsequently vacated can reopen his
or her sentence via a § 2255 proceeding. See Purvis v. United
States, 662 F.3d 939, 942 (7th Cir. 2011); Stewart v. United
States,
646 F.3d 856, 864 (11th Cir. 2011); United States v.
Pettiford,
612 F.3d 270, 276 (4th Cir. 2010);
Doe, 239 F.3d at 475;
LaValle, 175 F.3d at 1108; United States v. Cox,
83 F.3d 336, 339
(10th Cir. 1996); United States v. Nichols,
30 F.3d 35, 36 (5th
Cir. 1994); see also 3 Wright & Miller, Federal Practice and
Procedure § 626 (4th ed. 2014) ("[A] defendant who has successfully
attacked a state conviction may use § 2255 to seek review of any
federal sentence that was enhanced because of the prior state
conviction."). We are aware of no Court of Appeals case taking a
contrary position. Accordingly, we join our sister circuits and
hold that claims such as Cuevas's are cognizable under the fourth
prong of § 2255(a).
The government makes several arguments in favor of its
contention that Cuevas's claim is not cognizable, but we do not
find them persuasive.
First, the government argues that "Cuevas' assertion that
his claim is cognizable under Mateo does not constitute the kind of
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'effort at developed argumentation' that is required to avoid a
finding of waiver." Whatever the clarity of Cuevas's appellate
brief, it quoted the language from Johnson that supports his
position and cited Pettiford and Mateo for the proposition that
"[w]here a state conviction used to enhance a federal sentence is
subsequently vacated, a § 2255 motion is the appropriate vehicle
for correcting a sentence when the enhancement is no longer
applicable." This is sufficient to avoid a finding of waiver.6
See United States v. Dunbar, 553 F.3d 48, 63 n.4 (1st Cir. 2009)
(declining to find waiver where defendant's brief did "not state
his claim artfully" but identified relevant facts and cited
pertinent case law). We also note that Cuevas squarely raised the
Johnson claim in his pro se filing before the district court.
Second, the government argues that Cuevas cannot seek
relief in a § 2255 proceeding because, upon resentencing, the
district court would "ha[ve] the legal authority, objectively
speaking, to reimpose the same sentence after considering the
6
The government criticizes Cuevas for not citing Damon v.
United States, 732 F.3d 1 (1st Cir. 2013), Cofske v. United States,
290 F.3d 437, 441 (1st Cir. 2002), Knight v. United States,
37 F.3d
769 (1st Cir. 1994), or other cases "support[ing] the
non-cognizability of freestanding guidelines claims." The
government is off the mark. As explained above, Cuevas's claim is
not a "freestanding guidelines claim." Ironically, neither Damon
nor Cofske nor Knight even resolved the issue of whether a claim of
mere error in application of the Guidelines is cognizable. Knight
and Damon explicitly left it open, see
Damon, 732 F.3d at 3-4;
Knight, 37 F.3d at 773-74, and Cofske dealt with a constitutional
claim of ineffective assistance of counsel, not a freestanding
Guidelines claim,
see 290 F.3d at 441.
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properly-calculated advisory range." We reject this argument.
"Speculation that the district court today might impose the same
sentence is not enough to overcome the fact that, at the time of
his initial sentencing, [Cuevas] was sentenced based upon the
equivalent of a nonexistent offense." Narvaez v. United States,
674 F.3d 621, 629 (7th Cir. 2011). We will not deny relief on the
basis of the "frail conjecture" that the district court would have
sentenced Cuevas to 84 months in prison and six years supervised
release even absent these two state convictions. See
id. (quoting
Hicks v. Oklahoma,
447 U.S. 343, 346 (1980)).
Third, the government contends that Johnson is
distinguishable because Johnson was sentenced before United States
v. Booker, 543 U.S. 220 (2005), when the Guidelines were mandatory.
We disagree. The Guidelines, even though now only advisory, remain
the "lodestone of sentencing." Peugh v. United States,
133 S. Ct.
2072, 2084 (2013). "Even after Booker . . . , district courts have
in the vast majority of cases imposed either within-Guidelines
sentences or sentences that depart downward from the Guidelines on
the Government's motion."
Id. Thus, the cognizability of Cuevas's
claim should not turn on whether the Guidelines were mandatory or
advisory at the time of his sentencing. Peugh, which held that,
under the Ex Post Facto Clause, a defendant may not be sentenced
under Guidelines promulgated after he committed the offense if the
new version provides a higher sentencing range,
id. at 2078, favors
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our conclusion. Peugh rejected the argument that the advisory
nature of the Guidelines obviated any constitutional problem,
reasoning that the Guidelines still tend to "steer district courts
to more within-Guidelines sentences." Id. at 2084.7
Finally, the government makes several policy arguments in
support of its broad contention that "Guidelines errors are not
cognizable." It contends, for example, that a contrary holding
"would threaten to destabilize the finality of countless other
final judgments and sentences affected by a change in the relevant
factual or legal landscape." These arguments misconstrue the
question that we are tasked with deciding. We do not hold that
defendants may reopen their sentences based on purported legal
error in application of the Guidelines; we hold merely that
defendants whose predicate state convictions have been vacated may
reopen a federal sentence that was influenced by those convictions,
so long as the vacatur of the underlying state convictions
demonstrates exceptional circumstances as required by the fourth
prong of § 2255(a). "[T]hat distinction matters." Spencer, 773
F.3d at 1143. This has been the law in many circuits for years,
7
The government's proposed distinction of Johnson has not
been adopted by any Court of Appeals. Indeed, several courts have
held or suggested that the Johnson dicta should apply to defendants
sentenced under the advisory Guidelines. See, e.g., Rossetti, 773
F.3d at 326, 331;
Spencer, 773 F.3d at 1143 (citing
Stewart, 646
F.3d at 858);
Purvis, 662 F.3d at 941-42.
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and the government's "finality-busting concerns" have not
materialized.
Moreover, Johnson holds that a petitioner may reopen a
federal sentence based on the vacatur of a predicate state
conviction only if he "sought [the vacatur] with due diligence in
state court, after entry of judgment in the federal case with the
enhanced sentence." 544 U.S. at 298. This limitation
significantly ameliorates any finality concerns that the Johnson
rule might otherwise raise.
To be clear, on remand, the district court must hear
Cuevas's arguments and decide an appropriate sentence. But we do
not suggest in any way what that sentence should be. See Custis,
511 U.S. at 497;
LaValle, 175 F.3d at 1108.
III.
We hold that Cuevas's claim is cognizable under § 2255,
and reverse and remand for further proceedings consistent with this
opinion. We express no view on an appropriate sentence for Cuevas
once his sentence is reopened. If the district court decides to
reduce Cuevas's sentence, the court should act promptly to ensure
that Cuevas receives the benefit of the reduction.
Reversed.
-20-
