United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
matter is before the court on defendant's motion pursuant
to 28 U.S.C. § 2255 to vacate his sentence. (Dkt. 138).
The motion asserts that defendant's sentence was
unconstitutionally enhanced using prior convictions that no
longer qualify as “crimes of violence” after the
Supreme Court's ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015). For the reasons that
follow, the court concludes the motion is untimely and must
Craig Williams pled guilty on May 5, 2000, to three counts,
including possession with intent to distribute 94 grams of
cocaine base, possession with intent to distribute 557 grams
of a mixture containing cocaine, and possession with intent
to distribute 598 grams of a mixture containing marijuana,
all in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. (Dkts. 17-19). The first of these counts carried a
statutory penalty of at least ten years imprisonment and a
maximum possible sentence of life imprisonment.
U.S. Probation Office prepared a Presentence Report (PSR)
that found defendant's offense level to be 34, based in
part on a guideline enhancement for being a career offender
under USSG § 4B1.1. At the time of sentencing, the U.S.
Sentencing Guidelines were considered
mandatory. They included an enhancement if certain
defendants had two prior convictions for either a
“crime of violence” or a controlled substance
offense. USSG § 4B1.1 (2000 Guidelines Manual). A crime
of violence included (among other things) a felony that had
as an element the use, attempted use, or threatened use of
physical force against the person of another, and a felony
“that presents a serious potential risk of physical
injury to another.” USSG §
asserted that defendant had one prior felony conviction for a
crime of violence and one for a controlled substance offense.
The crime of violence was identified as Assault with a
Firearm in Los Angeles County Superior Court, Case No.
VA011282 (PSR ¶38). The record does not disclose whether
the assault conviction was considered a crime of violence
because it constituted an “aggravated assault” or
because by its nature it presented a serious risk of physical
injury to another. The § 4B1.1 career offender
enhancement increased both defendant's offense level and
his Criminal History Category. Based upon a motion, the court
sentenced defendant to a controlling term of 216 months
imprisonment, which was below the applicable guideline range
of 262 to 327 months. (PSR ¶72; Dkt. 64). Judgment was
entered on February 21, 2001. No direct appeal was
Johnson, the Supreme Court found the “residual
clause” of the Armed Career Criminal Act (ACCA)-18
U.S.C. § 924(e)(2)(B)- to be unconstitutionally vague.
The clause resulted in enhancement of the statutory penalty
for an offense based on a prior “violent felony”
that “involves conduct that presents a serious
potential risk of physical injury to another.” The
Supreme Court found that the clause was impermissibly vague
and that due process prohibited its use to increase the
statutory penalty. The Supreme Court later held that
Johnson applied retroactively to cases on collateral
review. See Welch v. United States, 136 S.Ct. 1257
in Beckles v. United States, 137 S.Ct. 886 (2017),
the Supreme Court found Johnson did not apply to the
nearly-identical residual clause in the now-advisory
sentencing guidelines, because the guidelines “merely
guide the exercise of a court's discretion in choosing an
appropriate sentence within the statutory range.”
Id. at 892. The Court left open the question of
whether defendants sentenced under the mandatory guidelines
could mount a vagueness challenge. Id. at 903, n.4
(Sotomayor, J. concurring in the judgment).
20, 2016, defendant filed his motion under 28 U.S.C. §
2255. The motion argues defendant's right to due process
was violated through use of an enhancement for a crime of
violence under the residual clause of USSG 4B1.1. Defendant
argues his prior assault conviction does not qualify as a
crime of violence under the rule of Johnson, and he
seeks to be resentenced without the enhancement. He contends
his motion is timely because it was filed within one year of
the date on which the Supreme Court recognized this due
process right in Johnson. (Dkt. 138 at 8).
Government argues, among other things, that defendant's
motion is untimely, because it was not brought within one
year of when the judgment became final and because the
Supreme Court “has yet to hold that Johnson is
a new right that applies retroactively to the
pre-Booker scheme under the Guidelines.” (Dkt.
146 at 9).
recent ruling of the Tenth Circuit, United States v.
Greer, F.3d, 2018 WL 721675 (10th Cir. Feb. 6, 2018),
confirms the Government's argument that defendant's
motion is untimely.
to the Antiterrorism and Effective Death Penalty Act (AEDPA),
a § 2255 motion ordinarily must be brought within one
year of the later of “the date on which the judgment of
conviction becomes final” or “the right asserted
[by petitioner] 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.” 28 U.S.C. § 2255(f)(1), (3).
Greer, 2018 WL 721675 at *2.
involved a § 2255 petitioner who claimed his enhanced
sentenced under the residual clause of the mandatory
guidelines was unconstitutional under the rule of
Johnson. The Tenth Circuit said such an
argument-which is the same one asserted by Mr. Williams-would
“require this court to address the constitutionality of
the residual clause of the mandatory Guidelines in the first
instance on collateral review.” Id. at *3.
Greer held that “such a task exceeds the
authority of this court under AEDPA.” The Tenth Circuit
said the defendant was not asserting a right recognized by
the Supreme Court but was arguing for extension of
Johnson's reasoning to the mandatory guidelines.
But the Supreme Court “has ...