De'Angelo Cross v. United States
892 F.3d 288
7th Cir.2018Background
- De’Angelo Cross and Carl Davis were sentenced as career offenders under the pre-Booker mandatory U.S. Sentencing Guidelines, based on the guidelines’ residual clause defining “crime of violence.”
- The residual clause covered offenses that “otherwise involve conduct that presents a serious potential risk of physical injury to another.” Both men’s prior convictions were treated as qualifying under that clause.
- After their sentences, the Supreme Court in Booker made the Guidelines advisory (2005), and later in Johnson (2015) struck down the materially identical residual clause in the Armed Career Criminal Act (ACCA) as unconstitutionally vague.
- Cross and Davis filed 28 U.S.C. § 2255 motions within one year of Johnson seeking resentencing; district courts denied relief on timeliness, waiver, procedural-default, and alternative-ground (elements-clause) bases.
- The Seventh Circuit consolidated the appeals and held that Johnson recognized a right applicable to their claims for purposes of § 2255(f)(3), that procedural defaults were excused, that Cross’s plea waiver did not bar his claim, and that the mandatory Guidelines’ residual clause is void for vagueness in light of Johnson.
- The court ordered resentencing, concluding Johnson’s substantive rule applies retroactively to pre-Booker mandatory-Guidelines career-offender classifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2255(f)(3) timeliness is satisfied by filing within one year of Johnson | Cross/Davis: Johnson recognized the right not to be sentenced under a vague residual clause; motions timely | Gov’t: Johnson addressed only ACCA residual clause; §2255(f)(3) doesn’t start unless Supreme Court extends Johnson to mandatory Guidelines | Held: §2255(f)(3) is satisfied — petitioners asserted the right recognized in Johnson and filed within one year |
| Whether procedural default/forfeiture bars collateral attack | Cross/Davis: Change in law (Johnson) constitutes cause; prejudice shown by longer sentences | Gov’t: Failure to object at trial/direct appeal forfeits claim | Held: Procedural default excused under Reed/Bousley because Johnson was an unforeseeable, abrupt change; prejudice established |
| Whether Cross’s plea-waiver bars his §2255 challenge | Cross: Waiver carved out challenges based on any “constitutionally impermissible factor” in sentencing | Gov’t: Carve-out limited to narrow constitutional baseline (e.g., race) | Held: Waiver ambiguous; carve-out reasonably covers reliance on an unconstitutional residual clause; Cross’s motion allowed |
| Whether Johnson’s vagueness holding applies to pre-Booker mandatory Guidelines and is retroactive | Cross/Davis: Guidelines’ residual clause is materially identical to ACCA; mandatory Guidelines fix sentence ranges, so vagueness doctrine applies; Johnson is substantive and retroactive | Gov’t: Beckles forecloses vagueness challenge to Guidelines; any reach of Johnson is limited to ACCA | Held: Beckles applies only to advisory Guidelines; mandatory Guidelines implicated vagueness concerns like ACCA; Johnson’s substantive rule applies retroactively -> resentencing required |
Key Cases Cited
- Booker v. United States, 543 U.S. 220 (2005) (held Guidelines advisory, explaining difference between mandatory and advisory regimes)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause unconstitutionally vague)
- Beckles v. United States, 137 S. Ct. 886 (2017) (held advisory Guidelines not subject to vagueness challenges under Due Process)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson is retroactive on collateral review)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (applied Johnson reasoning to similar INA residual clause; reinforced vagueness analysis)
- Curtis Johnson v. United States, 559 U.S. 133 (2010) (interpreted "physical force" for elements clause; relevant to elements-clause analysis)
- Peugh v. United States, 569 U.S. 530 (2013) (held ex post facto protections apply to advisory Guidelines when they create significant risk of higher sentence)