United States v. Thyberg
684 F. App'x 733
| 10th Cir. | 2017Background
- Defendant Gabriel Johnathon Thyberg pled guilty in 2010 to possession with intent to distribute methamphetamine and had two prior New Mexico convictions for residential burglary (N.M. Stat. Ann. § 30-16-3(A)).
- The district court applied the career-offender enhancement under USSG §§ 4B1.1, 4B1.2(a), treating the burglaries as "crimes of violence," producing an advisory range and a sentence of 151 months. Thyberg did not appeal.
- After Johnson v. United States, the Tenth Circuit held the Guidelines’ residual clause void for vagueness in United States v. Madrid; the Supreme Court later made Johnson retroactive (Welch). Thyberg obtained permission to file a successive § 2255 based on Johnson.
- Thyberg’s second § 2255 argued his burglaries could not qualify as crimes of violence because the Guidelines’ residual clause was void and the New Mexico statute did not match generic "burglary of a dwelling."
- The district court denied relief, concluding the convictions qualified under the Guidelines’ enumerated-offense clause; Thyberg sought a certificate of appealability (COA) which the Tenth Circuit denied.
- Between Thyberg’s COA filing and decision, the Supreme Court in Beckles held Johnson’s vagueness holding does not apply to the advisory Sentencing Guidelines, foreclosing Thyberg’s residual-clause argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thyberg’s § 2255 warrants relief because the Guidelines’ residual clause is void for vagueness | Thyberg: His prior NM residential-burglary convictions cannot be career-offender predicates because the residual clause is unconstitutionally vague (per Johnson) | Government: Even if residual clause invalid, convictions qualify under the enumerated-offense clause; or Beckles forecloses vagueness challenge to Guidelines | Denied COA and appeal dismissed: Beckles bars Johnson-style vagueness challenge to the advisory Guidelines’ residual clause; court need not decide the enumerated-clause fit but notes Thyberg failed to make a substantial showing of a constitutional violation |
| Whether Thyberg’s burglary statute matches generic burglary of a dwelling such that it is an enumerated crime of violence | Thyberg: § 30-16-3(A) does not substantially correspond to generic burglary of a dwelling | Government/District Court: § 30-16-3(A) qualifies as burglary of a dwelling for the enumerated clause | Court did not resolve this question because Beckles removed the need; also concluded Thyberg failed to make a debatable constitutional showing |
| Whether a COA should issue for appellate review | Thyberg: Reasonable jurists could debate denial because Johnson-based error affected his sentence | Government: No substantial showing; Beckles controls | COA denied: Thyberg did not show reasonable jurists would debate the district court’s resolution |
| Timeliness and scope of relief available in successive § 2255 based on Johnson | Thyberg: Authorized to file based on Johnson; claims timely under § 2255(f)(2) | Government: With Beckles, Johnson no longer provides a path; alternative challenges would be untimely | Court notes authorization was based on Johnson, but Beckles undermines the claim; alternative attacks on other guideline clauses would be untimely or meritless |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause unconstitutionally vague)
- United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) (applied Johnson to invalidate the Guidelines’ residual clause)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson is retroactive on collateral review)
- Beckles v. United States, 137 S. Ct. 886 (2017) (held advisory Sentencing Guidelines are not subject to Johnson vagueness challenge)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for issuing a certificate of appealability)
- Slack v. McDaniel, 529 U.S. 473 (2000) (COA requires showing that reasonable jurists could debate the district court’s resolution)
- United States v. Ramirez, 708 F.3d 295 (1st Cir. 2013) (example holding certain burglary statutes qualify under Guidelines’ residual clause)
- United States v. Park, 649 F.3d 1175 (9th Cir. 2011) (example holding California first-degree burglary is a crime of violence under the residual clause)