Criminal Practice – No Resentencing Based on USSG Residual Clause

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U.S. v. Brown (Lawyers Weekly No. 001-177-17, 27 pp.) (Duncan, J.) No. 16-7056, Aug 21, 2017; USDC at Charleston, S.C. (Duffy, J.) 4th Cir.

Holding: A drug defendant sentenced as a career offender under the federal sentencing guidelines cannot show his motion for resentencing under Johnson v. U.S. is timely, as the Supreme Court has not recognized that Johnson and its progeny can be applied to career offender status under the sentencing guidelines; the 4th Circuit affirms dismissal of defendant’s 28 U.S.C. § 2255.

Sentencing Guidelines

This court granted petitioner a certificate of appealability on the issue of whether, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), his prior South Carolina conviction for assault on a police officer while resisting arrest, S.C. Code Ann. § 16-9-320(B), qualifies as a predicate “crime of violence” for career-offender status under the Sentencing Guidelines.

Petitioner can succeed only if a Supreme Court precedent has rendered his motion under 28 U.S.C. § 2255 timely by recognizing a new right entitling him to relief. As the dissent acknowledges, neither Johnson, nor Beckles v. U.S., 137 S. Ct. 886 (2017), nor any other Supreme Court case has recognized the specific right on which petitioner seeks to rely.

Because of jurisprudence under the Antiterrorism and Effective Death Penalty Act, we are constrained from extrapolating beyond the Supreme Court’s holding to apply what we view as its reasoning and principles to different facts under a different statute or sentencing regime. We are compelled to affirm dismissal of the § 2255 motion as untimely.

Sentenced in 2003, petitioner’s career-offender status resulted in a mandatory guideline range of 262-327 months for a drug offense and a minimum consecutive sentence of 60 months for a firearm offense, for a total sentence of 322 months. His conviction became final on June 26, 2015, for purpose of direct review, but before the Supreme Court in Johnson held that the residual clause of the Armed Career Criminal Act was void for vagueness.

Relying on Johnson, petitioner’s Jan. 28, 2016, § 2255 motion argues that his prior resisting-arrest conviction could no longer serve as a predicate crime of violence under USSG § 4B1.2(a) and therefore his earlier designation as a career offender was unjustified. He argued that Johnson‘s holding invalidated not only the ACCA residual clause, but also like-worded residual clauses in the sentencing guidelines.

Petitioner acknowledges, as he must, that the Supreme Court’s recent holding in Beckles forecloses his argument that Johnson explicitly invalidated all residual clauses with wording similar to ACCA’s invalidated residual clause. Petitioner and the dissent maintain that we can find his asserted right in the principles animating these decisions even though none of these nor any other Supreme Court precedent has recognized a right to challenge the pre-Booker mandatory sentencing guidelines as void for vagueness and despite the fact that the Beckles court expressly declined to address the issue of whether the pre-Booker mandatory sentencing guidelines are amenable to void-for-vagueness challenges.

Because of the procedural posture, we are compelled to affirm. If the Supreme Court left open the question of whether petitioner’s asserted right exists, the Supreme Court has not “recognized” that right.

Judgment affirmed.

Dissent

Gregory, C.J.: That the residual clause at issue here is contained in the mandatory sentencing guidelines, rather than the ACCA, is a distinction without a difference for purposes of this court’s timeliness inquiry. The clauses’ text is identical, and courts applied them using the same categorical approach and for the same ends – to fix a defendant’s sentence.

The right newly recognized in Johnson is therefore clearly applicable to this petitioner’s claim, because the mandatory guidelines’ residual clause presents the same problems of notice and arbitrary enforcement as the ACCA’s residual clause at issue in Johnson. The majority, by finding that a defendant sentenced under a nearly identical provision with nearly identical effects cannot assert the right newly recognized in Johnson, unnecessarily tethers that right to the ACCA itself, when the right clearly stems from the due process protections that prohibit such sentencing schemes more generally.

I would find that petitioner is asserting the right newly recognized in Johnson. I would find his petition timely and would find in his favor on the merits of his claim and remand for resentencing.