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United States v. Patrick

United States District Court, D. Oregon

October 18, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
SCOTT MICHAEL PATRICK, Defendant/Petitioner.


          Michael J. McShane, United States District Judge.

         Petitioner, Scott Michael Patrick, is currently serving a 210-month sentence imposed pursuant to § 4B1.2(a) of the United States Sentencing Guidelines (“Guidelines”).[1] On June 23, 2016, he filed a motion to vacate or correct his sentence under 28 U.S.C. § 2255, arguing that the principles set forth in Johnson v. United States, 135 S.Ct. 2551 (2015), render the language found in the mandatory Guidelines provision governing his sentence constitutionally deficient. The Government has since moved to dismiss his motion. Because the court in Johnson did not recognize a new right that would apply to the language of the mandatory Guidelines, Petitioner's motion is DENIED as untimely. The Government's motion is GRANTED.


         In 2000, Petitioner was convicted of federal unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Findings of Fact Order 1. The Presentence Report determined that, under the then-mandatory Guidelines, his instant and prior federal bank robbery offenses, as well one prior conviction for Oregon Robbery II, qualified as “crimes of violence” pursuant to § 4B1.2(a) and that he was a Career Offender under § 4B1.1. Presentence Report ¶ 32, 49. The district court applied the Career Offender enhancement and sentenced Petitioner to 210 months' imprisonment-the lower end of his mandatory 210 to 262-month Guidelines range. Findings of Fact Order 6. Without the career offender finding, Petitioner argues that his range would have been 92 to 110 months. Resp. to Pl.'s Mot. to Dismiss 3. Petitioner is currently serving consecutive sentences in federal prison and has a projected release date of May 29, 2023. Id.

         Petitioner now moves the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Def.'s Mot. to Vacate, Set Aside, or Correct Sentence 1. He contends that when the Supreme Court struck down the residual clause of the Armed Career Criminals Act (“ACCA”) as void for vagueness in Johnson, it recognized a new right retroactively applicable to sentences imposed under the identically-worded residual clause of the mandatory Guidelines. Id. at 3-5. Applying this right to the Guidelines, he argues that the residual clause is now deemed unconstitutionally vague and, as such, his Career Offender designation violates his due process rights. Id. Without the residual clause, he maintains, his convictions for federal bank robbery and Oregon Robbery II no longer qualify as crimes of violence under § 4B1.2(a) and the protections of § 2255 entitle him to relief from his classification as a Career Offender. Id. at 5.

         The Government opposes Petitioner's motion and seeks its dismissal on three grounds.[2]First, it contends that his motion is untimely. Gov't Mot. to Dismiss 2. Under § 2255(f), a petitioner must file a motion to correct or vacate her sentence within one year of either the date on which the sentence becomes final or the date on which the Supreme Court recognizes a right asserted in her motion. The Government argues that, since Petitioner was sentenced in 2000 and the right recognized in Johnson is limited to sentences imposed under the ACCA, his motion is time barred.[3] Gov't Supp. Mem. 2. Second, the Government argues that, even if Petitioner's motion were timely, the Guidelines' residual clause remains facially valid under the principles and reasoning of Johnson, as well as applied to Petitioner's convictions for robbery. Id. at 2-3. Finally, the Government contends that Petitioner's federal bank robbery and Oregon Robbery II convictions would still qualify as crimes of violence absent the residual clause. Id. at 4.


         Under 28 U.S.C. § 2255, a prisoner may move to have his sentence vacated or corrected if it “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). A motion pursuant to § 2255 must be filed within one year from the date on which a petitioner's conviction becomes final, unless an exception applies. Id. § 2255(f)(1). Petitioner relies on the exception at § 2255(f)(3) to render his motion timely. Def.'s Mot. to Vacate or Correct Sentence 5. Under § 2255(f)(3), a petitioner's motion is timely if (1) it “assert[s] . . . [a] right . . . newly recognized by the Supreme Court, ” id. § 2255(f)(3), (2) it is filed within one year from “the date on which the right asserted was initially recognized by the Supreme Court, ” id. § 2255(f)(3), and (3) the Supreme Court or controlling Court of Appeals has declared the right retroactively applicable on collateral review, Dodd v. United States, 545 U.S. 353, 358-59 (2005). As both the text of § 2255(f)(3) and Supreme Court precedent make clear, only the Supreme Court may “recognize” a new right under § 2255(f)(3). Dodd, 545 U.S. at 357-59.

         The present case turns most immediately on whether the right recognized by the Supreme Court in Johnson is the same one asserted by Petitioner. If the Supreme Court has yet to recognize the asserted right, then Petitioner's motion is time barred by § 2255(f)(1). If, however, Johnson did recognize the asserted right, then Petitioner's claim is timely under § 2255(f)(3) and he must be resentenced unless the Guidelines' residual clause, as applied in this case, can survive constitutional scrutiny under Johnson or, in the alternative, his Career Offender designation finds support in another provision of § 4B1.2. Although the Court finds that Petitioner's motion is time barred under § 2255(f)(1), it further concludes that, even if Johnson did recognize an applicable right within the meaning of § 2255(f)(3), that right, as applied in this case, would not render his Guidelines sentence unconstitutional.

         I. Petitioner's Motion is Time Barred.

         A. The Right Recognized by Johnson is Not the Right Asserted by Petitioner.

         The determinative issue in this case is whether Johnson recognized the specific right “asserted” by Petitioner. 28 U.S.C. § 2255(f)(3). It is clear, and the parties agree, that the Supreme Court's recent opinion in Beckles v. United States, 137 S.Ct. 886 (2017), does not directly control this question. In Beckles, the Supreme Court clarified that the pre-Booker advisory Guidelines, including the residual clause of § 4B1.2(a)(2), “are not subject to vagueness challenges under the Due Process Clause.” 137 S.Ct. at 890. In so doing, the Court repeatedly and explicitly emphasized that its holding was limited to the advisory sentencing regime. See Id. at 890, 892, 894, 895, 896, 897; see also Id. at 903 n.4 (Sotomayor, J., concurring in judgment) (noting that the majority opinion “leaves open” the question of whether the mandatory Guidelines are subject to void-for-vagueness challenges). Whereas the ACCA “fix[es] the permissible range of sentences, ” it reasoned, the advisory Guidelines “merely guide the exercise of the court's discretion.” Id. at 892. The pre-Booker sentencing Guidelines, the Court thus concluded, “do not implicate the twin concerns underlying the vagueness doctrine-providing notice and preventing arbitrary enforcement.” Id. at 894-95.

         Nevertheless, a finding that Beckles does not, by its terms, foreclose this Court from reading Johnson as recognizing the right asserted by Petitioner does not resolve whether Johnson did, in fact, recognize such a right. See United States v. Castaneda, 91-00582-AK, 2017 WL 3448192, at *2 (C.D. Cal. June 19, 2017) (Kozinski, J., sitting by designation) (explaining that, although “Beckles does not preclude [petitioners] from arguing that the mandatory Guidelines are subject to . . . Johnson, ” it also does not end the analysis). That inquiry depends on how one defines what qualifies as a newly recognized right. See United States v. Autrey, No. 1:99-cr- 467, 2017 WL 2646287, at *3 (E.D. Va. June 19, 2017) (“[E]mbedded in the parties' dispute on timeliness is a question about the meaning of the term ‘right' as used in § 2255(f)(3).”); Mitchell v. United States, No. 3:00-CR-00014, 2017 WL 2275092, at *3 (W.D. Va. May 24, 2017) (framing the parties' dispute as turning on “the meaning of ‘right' under § 2255(f)(3) and its application to Johnson”). While the Supreme Court has yet to provide clear guidance on what qualifies as a newly recognized right, lower courts have adopted two contrasting approaches.

         First, a newly recognized right could be limited to the “narrow rule announced in a Supreme Court case.” Autrey, 2017 WL 2646287, at *3. Under this view, the right recognized by Johnson is limited to its specific holding: that the ACCA's residual clause is unconstitutionally vague. See, e.g., Davis v. United States, No. 16-C-747, 2017 WL 3129791, at *5 (E.D. Wis. July 21, 2017) (“The only right recognized in Johnson was established in its holding.”). By asking lower courts to invalidate the mandatory Guidelines' residual clause, petitioners are impermissibly requesting that these courts recognize a right not established by the narrow holding in Johnson. See, e.g., Raybon v. United States, No. 16-2522, 2017 WL 3470389, at *3 (6th Cir. Aug. 14, 2017) (“[Petitioner's] untimely motion cannot be saved under § 2255(f)(3) because he is asking for the recognition of a new right by this court.”) (internal quotation marks and citation ...

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