954 F.3d 465
2d Cir.2020Background
- Miguel Nunez pled guilty (1999) to Hobbs Act robbery and conspiracy; at sentencing the district court applied the pre-Booker mandatory Career Offender Guideline based on the Guideline’s residual clause and imposed a 360-month sentence after an upward departure.
- The Career Offender definition (U.S.S.G. §4B1.2(a)(2) pre-Booker) included a residual clause defining “crime of violence” by reference to conduct that "otherwise involves conduct that presents a serious potential risk of physical injury to another."
- In Johnson v. United States (2015), the Supreme Court held the ACCA’s identically worded residual clause void for vagueness and in Welch (2016) applied that rule retroactively to ACCA challenges.
- Nunez filed a 28 U.S.C. §2255 motion within one year of Johnson, arguing Johnson rendered the pre-Booker Career Offender residual clause unconstitutionally vague and therefore his sentence as a Career Offender was invalid.
- The district court denied the §2255 motion as untimely under §2255(f)(3), concluding Johnson did not recognize the specific right Nunez asserted with respect to the pre-Booker mandatory Guidelines.
- The Second Circuit affirmed, holding Johnson did not itself recognize a right not to be sentenced under the pre-Booker Career Offender Guideline’s residual clause; therefore Nunez’s petition was untimely. Judges Pooler and Raggi concurred separately (Pooler emphasizing the injustice; Raggi arguing no prejudice would result even if the enhancement were invalid).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson’s rule made a newly recognized right available under 28 U.S.C. §2255(f)(3) to challenge a pre-Booker Career Offender residual-clause enhancement | Johnson struck down an identically worded residual clause in ACCA; identical wording means the same due-process right exists for the Guideline | Johnson addressed ACCA only; Supreme Court has not held Johnson applies to pre-Booker mandatory Guidelines, so the specific right was not "recognized" by the Court | Johnson did not recognize the right Nunez asserts as to the pre-Booker Career Offender Guideline; §2255 motion untimely |
| Whether Nunez would be prejudiced or suffer an injustice if the Court declined to reach the merits | Vagueness of the residual clause could invalidate the Career Offender designation and reduce sentencing exposure | Record shows district court imposed a large upward departure based on extreme sexual violence; even without the enhancement the same sentence likely would have been imposed | Majority did not reach prejudice; concurrence (Raggi) concluded Nunez cannot show prejudice and that affirmance does not produce injustice |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (struck down ACCA residual clause as unconstitutionally vague)
- United States v. Booker, 543 U.S. 220 (2005) (held mandatory Guidelines unconstitutional and rendered them advisory)
- Beckles v. United States, 137 S. Ct. 886 (2017) (held post-Booker advisory Guidelines are not subject to vagueness challenges)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (applied Johnson reasoning to strike a similar residual clause in immigration statute)
- United States v. Davis, 139 S. Ct. 2319 (2019) (applied vagueness analysis to another residual clause in §924(c))
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson error was retroactive on collateral review for ACCA challenges)
- Dodd v. United States, 545 U.S. 353 (2005) (§2255(f)(3) one-year clock runs from date right is initially recognized)
- Cross v. United States, 892 F.3d 288 (7th Cir. 2018) (held a Johnson-based challenge to pre-Booker Career Offender Guidelines could be timely; court declined to follow)
- In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (addressed applicability of vagueness to Guidelines; held pre-Booker Guidelines did not yield same relief as ACCA)
- Bousley v. United States, 523 U.S. 614 (1998) (actual innocence exception standards for collateral challenges)