Filed: May 24, 2018
Latest Update: May 24, 2018
Summary: MEMORANDUM OPINION LEWIS A. KAPLAN , District Judge . The matter is before the Court on Miguel Nunez's motion to vacate his sentence under 28 U.S.C. 2255. 1 Background Movant pleaded guilty to Hobbs Act robbery and conspiracy to commit Hobbs Act robbery and was sentenced on February 7, 2000 to 360 months as a career offender under the then-mandatory U.S.S.G. 4B1.1 (November 1, 1998). 2 At sentencing, the Court concluded that the application of the career offender guideline was prop
Summary: MEMORANDUM OPINION LEWIS A. KAPLAN , District Judge . The matter is before the Court on Miguel Nunez's motion to vacate his sentence under 28 U.S.C. 2255. 1 Background Movant pleaded guilty to Hobbs Act robbery and conspiracy to commit Hobbs Act robbery and was sentenced on February 7, 2000 to 360 months as a career offender under the then-mandatory U.S.S.G. 4B1.1 (November 1, 1998). 2 At sentencing, the Court concluded that the application of the career offender guideline was prope..
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MEMORANDUM OPINION
LEWIS A. KAPLAN, District Judge.
The matter is before the Court on Miguel Nunez's motion to vacate his sentence under 28 U.S.C. § 2255.1
Background
Movant pleaded guilty to Hobbs Act robbery and conspiracy to commit Hobbs Act robbery and was sentenced on February 7, 2000 to 360 months as a career offender under the then-mandatory U.S.S.G. § 4B1.1 (November 1, 1998).2 At sentencing, the Court concluded that the application of the career offender guideline was proper because the instant offense of conviction and movant's two prior predicate felonies (both for New York robbery in the first degree3) each were considered "crimes of violence" under the residual clause in U.S.S.G. § 4B1.2.4
Recent Supreme Court jurisprudence — namely, Johnson v. United States,5 which declared an identically worded residual clause in the Armed Career Criminal Act ("ACCA") unconstitutionally vague, Welch v. United States,6 which gave Johnson retroactive effect, and most recently, Sessions v. Dimaya,7 which applied Johnson to conclude that a nearly identically worded residual clause in the Immigration and National Act was unconstitutionally vague — has cast some doubt on the constitutionality of the residual clause in the then-mandatory career offender guideline.8
Movant asserts that had the career offender designation not applied to his sentence, the pre-departure guideline range in his case would have been 121 to 151 months, rather than 151 to 188 months. He argues, based on the recent Supreme Court holdings, that he should not have been sentenced as a career offender and that any such error was not harmless. He asks the Court to vacate his sentence and resentence him without the career offender designation.
Discussion
The motion on the merits presents at least one interesting question — that is, whether the residual clause in the career offender guideline, insofar as the guideline was mandatory on courts, was unconstitutionally vague and, if so, whether the career offender guideline nonetheless properly was applied. The latter question in turn could depend on whether Hobbs Act robbery and New York robbery in the first degree qualify as "crimes of violence" under U.S.S.G. § 4B1.2(a)(1) — in other words, whether these crimes have "as an element the use, attempted use, or threatened use of physical force against the person of another." But the government argues that the Court should not reach the merits because the motion is untimely.
The statute of limitations on a motion pursuant to 28 U.S.C. § 2255 is one year. This one-year limitations period runs from the latest of:
"(1) the date on which the judgment of conviction becomes final;
"(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
"(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
"(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."9
This motion was filed on June 21, 2016. Because movant's judgment of conviction became final in 2000 and neither of subsections (2) or (4) applies, his motion would be timely only if it had been filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."10
The government argues that the motion is untimely because the Supreme Court's decision in Johnson held only that the residual clause of the ACCA was unconstitutional. Although the wording of the unconstitutional ACCA clause is identical to that of the career offender guideline at issue, the Supreme Court has not itself extended its holding in Johnson to the pre-Booker guidelines. Accordingly, 28 U.S.C. § 2255(f)(3) does not apply.
The Fourth11 and Sixth Circuits12 each have held that the Supreme Court has not recognized a new right that applies retroactively because it has not itself held that the residual clause of the pre-Booker career offender guideline was unconstitutionally vague. The Second Circuit has not yet reached this question, but I am persuaded by the reasoning in our sister circuits. Accordingly, I conclude that the motion is untimely and must be denied.
Conclusion
The motion [DI 1] is denied, but I grant a certificate of appealability on the issue of whether his motion is timely pursuant to 28 U.S.C. § 2255(f)(3).13 Should the Supreme Court eventually determine that Johnson does apply retroactively to the pre-Booker residual clause of the career offender guideline, movant might be in a position at that point to make another motion under 28 U.S.C. § 2255.
SO ORDERED.
