United States District Court, D. Oregon
J. Williams United States Attorney Scott E. Bradford
Assistant United States Attorney for United States of America
Stephen R. Sady Chief Deputy Federal Defender Attorney for
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
is currently serving a 235-month sentence imposed on April
14, 2003, under the pre-Booker mandatory Guidelines.
The court enhanced Defendant's sentence, based in part,
on his prior convictions for Oregon Burglary I, Robbery II,
and Robbery III each qualifying as a “crime of
violence” under U.S.S.G. §§ 4B1.1 and 4B1.2.
On June 23, 2016, Defendant filed his motion to vacate or
correct his sentence under 28 U.S.C. § 2255, arguing
that in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), the
residual clause of the mandatory Guidelines used to enhance
his sentence was unconstitutionally void for vagueness.
See Mot. to Vacate, Set Aside or Correct Sentence,
ECF 32 [hereinafter “Johnson
Motion”].The Government moves to dismiss
Defendant's Johnson Motion on the ground that it
is untimely filed under 28 U.S.C. § 2255(f)(3). Because
Defendant's motion does not satisfy § 2255(f)(3),
the Government's motion to dismiss is granted and
Defendant's Johnson Motion is denied.
February 2003, Defendant pled guilty to one count of federal
armed bank robbery in violation of 18 U.S.C. § 2113(a)
and (d). Def.'s Mem. in Support of Johnson
Motion, Ex. A, ECF 40. As part of that plea agreement,
Defendant agreed that he was subject to enhanced punishment
under U.S.S.G. §§ 4B1.1 and 4B1.2. Id. at
10. The Presentence Report recommended that Defendant's
sentence be enhanced because his conviction for federal armed
bank robbery, as well as his prior Oregon convictions for
Burglary I, Robbery II, and Robbery III each qualified as a
“crime of violence” under the residual clause of
the Guidelines. Def.'s Mem. in Support of
Johnson Motion 2-3. Defendant's offense level
under a criminal history category of VI was raised from level
24 to level 31. Id. As a result, his mandatory
Guidelines range was 188-235 months. Id. Pursuant to
the plea agreement, the parties recommended a 235-month
sentence at the high-end of the range and the court imposed
the recommended sentence. Id.
23, 2017, Defendant filed his Johnson Motion seeking
to vacate, set aside, or correct his sentence. In
Johnson, the Supreme Court determined that the
residual clause of the Armed Career Criminal Act
(“ACCA”) was void for vagueness. 135 S.Ct. at
2563. Defendant argues that the identically-worded residual
clause of the mandatory Guidelines is also void for vagueness
under Johnson. Accordingly, Defendant claims that
his prior Oregon convictions cannot support the application
of mandatory sentence enhancements under the Guidelines.
response, the Government moves to dismiss Defendant's
Johnson motion as time-barred. Under 28 U.S.C.
§ 2255(f), a motion to vacate or correct a sentence must
be filed within one year from the date on which the sentence
became final or from the date that the Supreme Court
initially recognizes the right asserted by the movant. The
Government argues that Defendant's Jonson Motion
is untimely because he was sentenced in 2003 and the right
recognized by the Supreme Court in Johnson is
distinct from the one asserted by Defendant. Specifically,
the Government contends that the narrow holding of
Johnson applied only to the ACCA and did not
encompass a new right applicable to the mandatory Guidelines.
28 U.S.C. § 2255(a), a prisoner may move to vacate, set
aside, or a correct a sentence if it “was imposed in
violation of the Constitution or laws of the United
States.” A one-year limitation period applies to
motions filed under this section. 28 U.S.C. § 2255(f).
The limitations period runs, in relevant part, from
“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[.]” 28 U.S.C.
question before the Court is whether the Supreme Court
recognized in Johnson a right to have a sentence
calculated without reference to the pre-Booker
residual clause of the mandatory Guidelines. Other courts in
this district have considered the same legal question in
cases with very similar factual backgrounds involving bank
robbery convictions. See United States v. Beraldo,
No. 3:03-cr-00511-AA, 2017 WL 2888565 (D. Or. July 5, 2017);
United States v. Colasanti, No. 6:96-cr-60132-MC,
2017 WL 4273300 (D. Or. Sept. 26, 2017); United States v.
Patrick, No. 6:98-cr-60099-MC-1, 2017 WL 4683929 (D. Or.
Oct. 18, 2017). Each of those decisions concluded that
Johnson did not recognize the right that the
defendants claimed, and each dismissed the defendants'
motions as time-barred.
example, in Colasanti, the defendant pled guilty to
three counts of federal unarmed bank robbery and he had two
prior convictions for California robbery, all of which
qualified as “crimes of violence” under the
mandatory Guidelines. 2017 WL 427330, at *1. The defendant in
that case also argued that Johnson applied to the
mandatory Guidelines. Id. Following a growing
consensus of cases, the Colasanti court adopted a
narrow approach for determining whether the Supreme Court had
recognized a new right. Id. at *4. Applying the
majority's narrow approach, the court concluded that
“Johnson d[id] not recognize the right to have
a sentence calculated without reference to the
pre-Booker residual clause of §
4B1.2(a)(2).” Id. (collecting cases).
both the defendant in Colasanti and the instant case
rely on Beckles v. United States, 137 S.Ct. 886
(2017), to support their claim that Johnson
recognized a new right applicable to the mandatory
Guidelines. In Beckles, the Supreme Court held that
the post-Booker advisory guidelines were not subject
to void-for-vagueness challenges under Johnson.
Id. at 892. The Beckles Court reasoned that
there was a constitutionally significant distinction between
“statutes fixing sentences” such as the ACCA and
the advisory Guidelines which do not fix the permissible
range of sentences. Id. at 892-93. The Supreme Court
concluded that the advisory guidelines “merely guide
the exercise of a court's discretion” and are thus
“not subject to a vagueness challenge under the Due
Process Clause.” Id. at 893. Justice Sotomayor
separately wrote that the majority opinion “leaves open
the question of whether defendants sentenced [prior to
Booker]-that is, during the period in which the
Guidelines did ‘fix the permissible range of ...