Jerome Raybon v. United States
867 F.3d 625
6th Cir.2017Background
- In 2004 Raybon pleaded guilty to distributing >50 grams cocaine base and, under a plea agreement, was treated as a career offender based on a prior drug conviction and a Michigan conviction for "assault with intent to do great bodily harm less than murder," producing a Guidelines range of 262–327 months; the district court sentenced him to 295 months.
- Raybon appealed in 2005 (appeal waiver). His conviction became final in February 2006; he filed a § 2255 motion on June 14, 2016, challenging his career-offender classification under the Guidelines.
- Raybon relied on Johnson v. United States (2015) (invalidating the ACCA residual clause) to argue the identical residual clause in U.S.S.G. § 4B1.2(a)(2) no longer covers his Michigan assault conviction.
- The district court denied the § 2255 motion as untimely, reasoning Raybon’s claim relied on other clauses (elements clause) and should have been raised earlier; it also held on the merits that the Michigan offense qualifies under the elements clause.
- The Sixth Circuit affirmed: (1) Raybon’s § 2255 was untimely under 28 U.S.C. § 2255(f)(3) because Johnson (2015) did not clearly announce a new right applicable to the mandatory pre-Booker Guidelines, and (2) on the merits, the Michigan assault offense qualifies as a crime of violence under the elements clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 28 U.S.C. § 2255(f)(3) | Raybon: Motion filed within one year of Johnson (2015); Johnson invalidates residual clause in U.S.S.G. § 4B1.2(a)(2) so his claim is timely | Government: Johnson (2015) addressed ACCA residual clause; it did not newly recognize a right applicable to the mandatory pre-Booker Guidelines, so § 2255(f)(3) does not save the petition | Court: § 2255(f)(3) inapplicable — Johnson (2015) did not clearly recognize a new right made retroactive to mandatory Guidelines; motion untimely |
| Applicability of Johnson (2015) to mandatory Guidelines | Raybon: Johnson’s vagueness holding should extend to identical residual clause in mandatory Guidelines used at his 2004 sentence | Government: Supreme Court in Beckles limited Johnson to ACCA/advisory contexts; applicability to mandatory Guidelines is open, not established | Court: Open question; cannot treat Johnson (2015) as newly recognizing a right for § 2255(f)(3) purposes |
| Whether Michigan assault statute is a "crime of violence" under elements clause | Raybon: Mich. Comp. Laws § 750.84(a) does not require actual physical force or injury, so it may not meet the elements clause’s "physical force" requirement | Government: Michigan offense requires an assault (attempt or threat with force/violence) plus intent to cause great bodily harm; that involves "violent force" as defined in Johnson (2010) | Court: On the merits, the Michigan offense qualifies under the elements clause (use/attempted use/threatened use of violent force) |
| Need to decide alternative enumerated-residual arguments | Raybon: Primary focus on residual/element clauses; did not prevail on timeliness | Government: Also contended conviction could be an enumerated or violent offense under other Guidelines provisions | Court: No need to reach alternative enumerated-offense argument because elements-clause holding sufficed |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (holding the Sentencing Guidelines advisory) (context for pre/post-Booker analysis)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause unconstitutionally vague)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force for elements clause)
- Welch v. United States, 136 S. Ct. 1257 (Johnson (2015) announced a new substantive rule with retroactive effect for collateral review under ACCA)
- Beckles v. United States, 137 S. Ct. 886 (advisory Guidelines not subject to Johnson (2015) vagueness holding)
- United States v. Harris, 853 F.3d 318 (6th Cir. 2017) (categorical-approach framework and analysis of Michigan assault offenses)