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No Vacation for the Courts: Davis and Johnson Decisions Abound – Update for September 5, 2019

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THE DAVIS REPORT – AND A JOHNSON ‘CAREER OFFENDER’ DECISION


vacation190905Last week, typically the final slow week of summer, as vacationers return for a new school year and dreary office, was uncharacteristically busy for application of last June’s Supreme Court United States v. Davis decision.

In United States v. Barrett, the 2nd Circuit reluctantly held that a Hobbs Act conspiracy was not a crime of violence in light of Davis, despite the “murderous” nature of the particular conspiracy. For that reason, one of the defendant’s four § 924(c) convictions (for using a gun in a crime of violence) – the one related to the Hobbs Act conspiracy – was vacated. The Court sighed, “If there is anything Davis makes clear, it is the Supreme Court’s conviction that the substantially similar residual clause definitions for a violent crime in the Armed Career Criminal Act, in § 16(b), and in § 924(c)(3)(B) are unconstitutionally vague, and its aversion to new arguments that attempt to avoid that conclusion.”

In the 6th Circuit’s Knight v. United States decision, one of the defendant’s § 924(c) conviction was vacated because it was based on use of a gun during a kidnapping, but another based on assault and robbery of a postal employee under 18 USC § 2114 was held to require the use or threat of physical force. Thus, it is a crime of violence that supported the § 924(c) conviction.

Robber160229In United States v. Pervis, the 5th Circuit held that garden-variety bank robbery under 18 USC 2113(a) is a crime of violence under the § 924(c) “elements” test, and therefore supported the defendants’ multiple § 924(c) convictions.

The 5th Circuit also handed down a disappointing holding that an inmate found to be a career offender under the old mandatory Guidelines could not file a second-or-successive § 2255 motion to challenge the “career offender” status because of the Supreme Court’s 2015 Johnson v. United States holding. Bobbie London was convicted in 1996 of drug offenses and sentenced to 327 months as a Guidelines career offender. One of the prior convictions making him a career offender clearly no longer counts after Johnson.

vagueness160110Under Beckles v. United States, Bobbie would clearly not be entitled to relief if his sentence had been imposed under the advisory Guidelines. But he was sentenced nine years before United States v. Booker invalidated the mandatory Guidelines, so the judge had no choice but to hang the 327 months on him. Bobbie argued that a sentence determined by the vague language of the pre-Booker career offender residual clause violates due process.

The Circuit disagreed:

This asserted right, we think, is not dictated by Johnson; London’s assertion is more properly described as a “new right” to the extent that it is a right that has not yet been recognized by the Supreme Court. The Supreme Court has yet to decide whether a vagueness challenge can be raised under the pre-Booker Sentencing Guidelines. Instead, the Court’s decisions up until this point evince a distinction between statutes that fix sentences and Guidelines that attempt to constrain the discretion of sentencing judges…

In short, it is debatable whether the right recognized in Johnson applies to the pre-Booker Sentencing Guidelines—an administrative regime that governs a judge’s discretion to a range within the statutory minimum and maximum sentences. Consequently, London does not assert a right dictated by Johnson but instead asserts a right that would extend, as opposed to apply, Johnson to the pre-Booker Guidelines. His claim is therefore not entitled to the benefit of a new statute of limitations.”

United States v. Barrett, Case No. 14-2641-cr (2nd Cir. Aug. 30, 2019)

Knight v. United States, Case No. 17-6370 (6th Cir. Aug. 27, 2019)

United States v. Pervis, Case No. 17-20689 (5th Cir. Aug. 30, 2019)

London v. United States, Case No. 17-30675 (5th Cir. Aug. 29, 2019)

– Thomas L. Root

11th Circuit Travels Farther From Earth – Update for May 8, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

11TH CIRCUIT BAR FIGHT

Last week, the 11th Circuit denied en banc review of a case in which a pre-Booker Guidelines career offender sought collateral review of his sentence, based on the void-for-vagueness doctrine of Johnson v. United States. No surprise there. But a number of judges on that court, including the former acting chairman of the Sentencing Commission, Judge William Pryor, wrote 27 weird pages explaining the soundness of their denial.

earth190508Essentially, the majority said that the Guidelines were always advisory, even when they were mandatory, because the mandatory guidelines were never lawful. Therefore, a judge could have given the defendant the same high sentence even if he was not wrongly considered to be a career offender, despite the obvious fact that any judge who had done that would have been summarily reversed. If the sentence conceivably could not have changed, the majority wrote, then the ruling (in this case, Beckles) is obviously procedural, and the defendant cannot rely on it to change his sentence, because it is not retroactive.

Judge Rosenbaum and two other judges threw 36 pages back at the majority:

According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory. That is certainly interesting on a metaphysical level.

But it ignores reality. Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum. Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as 3553(b) required, to scores of criminal defendants — including many who still sit in prison because of them.

The inmate, Stoney Lester, was lucky enough to get released on a 2241 motion by the 4th Circuit – in which circuit he was imprisoned at the time – making the 11th Circuit denial academic. But the otherworldly logic of the majority, especially from a circuit fast becoming notorious for accepting any tissue-thin reason to deny a defendant constitutional or statutory justice (see here and here, for instance), is mind-numbing.

Lester v. United States, 2019 U.S. App. LEXIS 12859 (11th Cir. Apr. 29, 2019)

– Thomas L. Root

3rd Circuit Expands Second-and-Successive 2255 Rights – Update for September 12, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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ZAX’S PATIENCE REWARDED IN THE 3RD CIRCUIT

We reported several weeks ago that the 4th Circuit had joined the 6th in dodging the lingering question of whether Johnson v. United States applied to mandatory Guidelines sentences. Now, the 3rd Circuit has stepped into the breach.

violence151213The Armed Career Criminal Act provides that people with three prior convictions for serious drug offenses or crimes of violence face stiff mandatory minimum sentences. A crime of violence is defined as one of four specific offenses – burglary, extortion, arson or use of explosives – or any other crime that has as an element the actual or threatened use of physical force.

Up to two years ago, the ACCA’s definition has a third subcategory known as the residual clause. A crime of violence also included any crime that carried a substantial risk of physical harm to another. In Johnson, the Supreme Court ruled that this residual clause was so vague that the average person could not tell what offenses counted and what did not. Such a vague statute violates a defendant’s 5th Amendment due process rights. Because Johnson meant that a number of people serving ACCA sentences were in fact innocent of their offense, the Supreme Court held that it was retroactive, that is, that people already convicted could apply to courts with a 28 USC 2255 motion to obtain relief.

At the time, the ACCA definition of “crime of violence” appeared elsewhere in the criminal code as well as in the Guidelines, where it was used in several sections, especially in Chapter 4 to label someone a “career offender.” A “career offender” under the Guidelines faces dramatically increased sentencing ranges. Naturally, defendants serving long career offender sentences promptly filed for relief as well, despite the fact that Johnson only encompassed the ACCA, and not the Guidelines.

limitone170912Every federal criminal defendant is entitled to file one and only one 2255 motion after conviction, that filing being due within a year of the conviction becoming final. In order to file a second 2255, the defendant must request permission from the Court of Appeals first. Permission is granted only under limited circumstances, where there is newly discovered evidence that convincingly proves innocence, or where a new rule of constitutional law – like the Johnson holding – is made retroactive.

Soon after Johnson was decided in June 2015, Tom Hoffner asked the 3rd Circuit for permission to file a second 2255. He argued that Johnson was the new rule of constitutional law that should apply to his career offender sentence, which was handed down in 2000. Back then, judges were required by law to follow the Guidelines, which only changed in 2005 when the Supreme Court declared mandatory Guidelines unconstitutional in United States v. Booker.

zax170912Remember Dr. Seuss’s story of a North-Going Zax and a South-Going Zax, who run into each other? Both are trying to get to their desired locations, but neither will move out of the way to let the other one pass. While both stand facing each other, unmoving, the world continues on moving and time passes by.

Tom’s case was something like that. The statute directs courts of appeal to decide applications to file second 2255s within 30 days. Holding that the 30-day language in 28 USC 2244 is merely “advisory,” the 3rd Circuit required over two years to decide whether Tom should be allowed to file a second 2255.

While Tom patiently waited, toe to toe with the government like the two Zaxes, the world did not stand still. First, the Supreme Court decided in Welch v. United States that the Johnson holding should be retroactive. Then, the Supreme decided last March in Beckles v. United States that Johnson would not be extended to people who were career offenders under the advisory Guidelines, leaving open the question of whether Johnson could be extended to people like Tom who had become career offenders under the mandatory Guidelines.

After that, two cases that many thought would decide whether Johnson extended to mandatory Guidelines people the 6th Circuit in United States v. Raybon and the 4th Circuit in United States v. Brown – ended up turning on the decidedly procedural question of whether the 2255s had been filed on time.

rely170912Finally, Tom’s time came last Thursday. The 3rd Circuit handed down 25 pages of careful thought-out analysis on the issue, concluding that while Johnson did not necessarily address Tom’s precise issue, 2244(b) only looks at whether the movant’s claim “relies” on the new rule of constitutional law. Nothing mandates that it be precisely the same point that the movant wants to claim. Thus, if Johnson is a new rule of constitutional law applying to language in the ACCA, and Tom “relies” on that rule in his argument that the same vagueness infirmity afflicts a guideline used to sentence him, that reliance is enough to come within the statute.

The Circuit held that in analyzing 2244 motions, the court needed to lean toward grant.

The context of Section 2244(b)… supports interpreting “relies” permissibly and flexibly… As explained above, Congress has mandated that the “grant or denial of an authorization… shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This creates an asymmetry in the impact of our gatekeeping decision on a particular case… On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” The district court will have the opportunity to determine anew whether the petitioner has “shown that the claim satisfies the requirements of this section,” and whether the habeas petition has merit… In turn, we may review the district court’s decision.

It’s not a done deal that Tom will win the 2255 motion he now has permission to file (although you could be forgiven for reading it like the 3rd thinks he will). But the Circuit seems pretty convinced that there’s some merit in his claim.

The significance of this decision, which the 3rd Circuit issued as precedential, is its thoroughness in discussing the 2244 process. In a world where most decisions on second-and-successive 2255s are three-page affairs, and where the statutory limitations on certiorari mean that the Supreme Court will never be able to opine on the matter, this decision is as much guidance as any court has ever given on 2244 practice.

In re Hoffner, Case No. 15-2883 (3rd Circuit, Sept. 7, 2017)

– Thomas L. Root

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