Blow v. United States
829 F.3d 170
| 2d Cir. | 2016Background
- Michael Blow pleaded guilty to conspiring to distribute cocaine base and was sentenced to 130 months, based in part on a Career-Offender enhancement under USSG § 4B1.1.
- The enhancement rested on two prior convictions qualifying as "crimes of violence" under USSG § 4B1.2(a), which includes a residual clause analogous to the ACCA residual clause.
- Blow seeks leave to file a successive 28 U.S.C. § 2255 motion arguing Johnson v. United States voided the Guidelines residual clause, so one prior Vermont aggravated domestic assault conviction no longer qualifies.
- The government contends Johnson is not retroactive to Guidelines-based sentence-range calculations on collateral review.
- The circuit courts are split on whether Johnson applies to USSG § 4B1.2(a)(2); the Supreme Court granted certiorari in Beckles to resolve that issue.
- This court found Blow made a prima facie showing under 28 U.S.C. § 2255(h)(2) and granted leave to file a successive § 2255; the district court was directed to stay the motion pending Beckles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson’s voiding of the ACCA residual clause renders the identical residual clause in USSG § 4B1.2(a)(2) unconstitutional and retroactive on collateral review | Johnson invalidates the Guidelines residual clause, so Blow’s Vermont aggravated domestic assault no longer qualifies as a crime of violence | Johnson and Welch do not apply retroactively to Guidelines sentencing-range provisions on collateral review | Court found Blow made a prima facie showing that Johnson/Welch could apply and granted leave to file a successive § 2255; transfer to district court and stay pending Beckles |
Key Cases Cited
- Bell v. United States, 296 F.3d 127 (2d Cir. 2002) (prima facie standard for successive § 2255 motions)
- Bennett v. United States, 119 F.3d 468 (7th Cir. 1997) (standard for warranting further district-court exploration)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson announced a new rule retroactive on collateral review)
- United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (Guidelines residual-clause challenge rejected)
- In re Hubbard, 825 F.3d 225 (4th Cir. 2016) (granted successive § 2255 based on Johnson’s effect on § 4B1.2(a)(2))
- United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) (rejected Eleventh Circuit’s categorical bar to Guidelines vagueness challenges)