United States v. Thilo Brown
868 F.3d 297
| 4th Cir. | 2017Background
- Brown pleaded guilty in 2003 to possession with intent to distribute crack and to a § 924(c) firearms offense; at sentencing the district court labeled him a career offender under the (then-mandatory) Sentencing Guidelines, producing a 322-month total sentence.
- The career-offender designation rested on (1) a prior felony drug conviction and (2) a South Carolina conviction for assault on a police officer while resisting arrest, which the court treated as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2) (the Guidelines’ residual clause).
- Brown did not appeal his 2003 sentence. In 2016 he filed a § 2255 motion relying on Johnson v. United States (2015), arguing Johnson’s holding that ACCA’s residual clause is void for vagueness also invalidates the (pre-Booker) mandatory Guidelines’ residual clause and thus his career-offender enhancement.
- The district court dismissed the § 2255 motion; Brown obtained a certificate of appealability limited to whether his prior resisting-arrest assault conviction qualifies as a predicate crime of violence in light of Johnson.
- The Fourth Circuit majority held Brown’s § 2255 motion untimely under 28 U.S.C. § 2255(f)(3) because Johnson did not "recognize" the specific right Brown asserts (i.e., invalidating the mandatory Guidelines’ residual clause), and Beckles v. United States (2017) confirms Johnson’s holding does not automatically extend to similarly worded residual clauses outside ACCA.
- The dissent would read § 2255(f)(3) to permit reliance on Johnson’s underlying reasoning (not just its narrow holding), conclude Johnson’s right applies to pre-Booker mandatory Guidelines, and would grant relief and remand for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown’s § 2255 motion is timely under 28 U.S.C. § 2255(f)(3) | Johnson recognized a new due-process right (invalidating vague residual clauses used to fix sentences) that Brown invoked within one year | Johnson did not "recognize" a right applicable to the mandatory Guidelines’ residual clause; Beckles shows Johnson’s holding does not automatically extend beyond ACCA | Motion untimely: Supreme Court has not "recognized" the specific right Brown asserts; § 2255(f)(3) not satisfied |
| Whether Johnson’s reasoning extends to invalidate the mandatory Guidelines’ residual clause | Johnson’s principles (fair notice, preventing arbitrary enforcement) apply equally to a textually identical residual clause in mandatory Guidelines used with the categorical approach pre-Booker | Beckles limits Johnson’s reach and the Supreme Court has declined to extend Johnson beyond ACCA/residual clause as to advisory Guidelines; only Supreme Court can make such extension retroactive under § 2255(f)(3) | Majority: Cannot extrapolate Johnson to mandatory Guidelines on collateral review; left to Supreme Court |
| Whether Beckles forecloses Brown’s claim | Beckles left open the question for mandatory (pre-Booker) Guidelines and thus does not resolve Brown’s claim on the merits | Government argues Beckles forecloses extending Johnson to Guidelines contexts | Majority: Beckles demonstrates that similarly worded clauses aren’t automatically covered; question remains open and thus Brown cannot rely on Johnson under § 2255(f)(3) |
| Whether the Fourth Circuit’s prior gatekeeping (In re Hubbard) supports relief | Brown cites Hubbard’s permissive COA standard to allow full merits review | Majority notes Hubbard’s lower-bar COA stage differs from the timeliness inquiry under § 2255(f)(3) | Hubbard not controlling; procedural posture distinguishes the cases |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness; announced a new rule later held retroactive)
- Beckles v. United States, 137 S. Ct. 886 (2017) (advisory Sentencing Guidelines not subject to vagueness challenges under Due Process Clause; limited Johnson’s application)
- United States v. Booker, 543 U.S. 220 (2005) (held Guidelines advisory post-Booker; distinguished mandatory vs. advisory regimes)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson’s rule retroactively applicable on collateral review)
- In re Hubbard, 825 F.3d 225 (4th Cir. 2016) (discussed COA gatekeeping standard for successive § 2255 claims relying on Johnson)