Lead Opinion
Petitioner-Appellant Thilo Brown appeals the district court’s order dismissing his 28 U.S.C. § 2255 motion. This court granted Petitioner a certificate of appeala-bility on the issue of whether, in light of Johnson v. United States, — U.S. -,
Petitioner can succeed only if, inter alia, a Supreme Court precedent has rendered his motion timely by recognizing a new right entitling him to relief. 28 U.S.C. § 2255(f)(3). As the dissent acknowledges, neither Johnson, nor Beckles, nor any other Supreme Court case has recognized the specific right on which Brown seeks to rely.
I.
A.
On March 19, 2003, Petitioner pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(iii) (“Drug Offense”), and to carrying a firearm during the commission of a drug crime in violation of 18 U.S.C. § 924(c) (“Firearm Offense”). J.A. 83. At sentencing, the district court designated Petitioner a career offender under U.S.S.G. § 4Bl.l(a) (2002) because he had a prior felony conviction that qualified as a predicate controlled-substance offense,
B.
On June 26, 2015 — after Petitioner’s conviction became final for purposes of direct review, but before Petitioner filed any 28 U.S.C. § 2255 motion — the Supreme Court decided Johnson. 135 S.Ct. at
On January 28, 2016, Petitioner filed a 28 U.S.C. § 2255 motion to vacate his sentence. Relying on Johnson, Petitioner argued, that his prior Resisting-Arrest Assault Conviction could no longer serve as a predicate crime of violence under U.S.S.G. § 4B1.2(a) (2002), and therefore, his earlier designation as a career offender was unjustified. J.A. 19-23, 45-54., Petitioner’s argument rested on the premise that Johnson’s holding invalidated , not only ACCA’s residual clause,'but also like-worded residual clauses in the Sentencing Guidelines. On June 17, 2016, the' district court dismissed Petitioner’s motion with prejudice and'declined to issue a certificate of appealability. J.A. 37-44. Petitioner appealed and moved for a certificate of ap-pealability on August 5, 2016. On December 7, 2016, this court granted Petitioner a certificate of appealability on the issue of whether his prior Resisting-Arrest Assault Conviction qualifies as a predicate offense for career-offender status in light of Johnson.
II.
On appeal, Petitioner relies on 28 U.S.C. § 2255(f)(3) to render his motion timely. Under § 2255(f)(3), a petitioner can file a § 2255 motion relying on, a right newly recognized by the Supreme Court provided that, inter alia, he files within a one-year window running from “the date on which the right asserted was initially recognized by the Supreme Court.” Id. § 2255(f)(3).
Petitioner acknowledges, as he must, that the Supreme Court’s recent holding in Beckles, forecloses his argument that Johnson explicitly invalidated all residual clauses with wording similar to ACCA’s invalidated residual clause. Petitioner nevertheless urges this court to extrapolate a recognized right from Booker, Johnson, and Beckles, read together. Petitioner and the dissent maintain that we can find his asserted right in the principles animating these decisions even though none of them, nor any other Supreme Court precedent, have recognized a right to challenge the pr e-Booker mandatory Sentencing Guidelines as void for vagueness and despite the fact that the Beckles Court expressly declined to address the issue of whether the pr e-Booker mandatory Sentencing Guidelines are amenable to void-for-vagueness challenges. See Beckles,
A.
In accordance with Congress’s intent to limit the number of collateral-review cases before federal courts and to respect the finality of convictions, the Anti-terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.C.) (“AEDPA”), provides for a one-year statute of limitations for § 2255 motions. 28 U.S.C. § 2255(f). Normally, for a motion to be timely under § 2255(f), a petitioner must file for relief within one year of the date that his judgment of conviction becomes final. See id. § 2255(f)(1); Clay v. United States,
To “recognize” something is (1) “to acknowledge [it] formally” or (2) “to acknowledge or take notice of [it] in some definite way.” Recognize, Merriam-Webster Tenth Collegiate Dictionary 976 (1996); see also Tapia v. United States,
B.
We now turn to the right Petitioner claims the Supreme Court recognized in Johnson. Petitioner’s motion relies on a claimed due-process right to have his
C.
Petitioner urges this court to cobble together a right by combining Johnson’s reasoning with that of two other Supreme Court eases, Booker and Beckles. Petitioner’s three-case extrapolation begins with the unobjectionable premise that Booker recognized a constitutional distinction between mandatory Sentencing Guidelines and advisory Sentencing Guidelines. Booker,
Yet Petitioner’s argument is self-defeating. If the Supreme Court left open the question of whether Petitioner’s asserted right exists, the Supreme Court has not “recognized” that right. See supra Part II.A.
While the residual clause at issue here mirrors the residual clause at issue in Johnson, the Beckles Court made clear that the right announced in Johnson did not automatically apply to all similarly worded residual clauses. See Beckles,
D.
We note as well that our recent decision in In re Hubbard,
The threshold certification inquiry in Hubbard concerned whether the movant could make a prima facie showing that his application relied on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C. § 2255(h)(2); see also id. § 2244(b)(3)(C); In re Hubbard,
Consistent with what is required of this court at the 28 U.S.C. § 2255(h)(2) stage, we did not consider the timeliness of the movant’s underlying merits argument. Instead we assumed, prior to the Supreme Court’s resolution of Beckles, that disagreement among the federal courts of
Today’s narrow holding, like the holding of Hubbard, is compelled by this case’s procedural posture. Had this case come before us on direct appeal, we might have had the inferential license necessary to credit Petitioner’s interpretations of the negative implications found in Booker, Johnson, and Bedeles. Unfortunately for Petitioner, we must consider his argument through the narrow lens that § 2255(f) affords this court on collateral review.
III.
We are constrained from reading between the lines of Booker, Johnson, and Beckles to create a right that the Supreme Court has yet to recognize. We are compelled to affirm because only the Supreme Court can recognize the right which would render Petitioner’s motion timely under § 2255(f)(3).
AFFIRMED
Notes
. The dissent specifically recognizes that Beckles leaves open the question of whether Johnson applies under a mandatory-guidelines regime and quotes from Justice Sotoma-yor’s concurring opinion in Beckles to that effect. See infra at 309. If a question is expressly left open, then the right, by definition, has not been recognized.
. Petitioner stipulated in his plea agreement that he had a prior felony drug conviction for trafficking crack cocaine, and agreed not to contest the government's filing of an information, rendering him subject to a mandatory minimum sentence of 20 years (240 months) for his Drug Offense. 21 U.S.C. § 851.
.The Firearm Offense carried a mandatory minimum penalty of five years to life imprisonment, to run consecutively to any other term of imprisonment imposed. 18 U.S.C. § 924(c); J.A. 79-80, 90.
. ACCA imposes a statutorily mandated 15-year minimum prison term for a person who • violates 18 U.S.C. § 922(g) and has three previous convictions that qualify as either a "serious drug offense” or a "violent felony.” 18 U.S.C. § 924(e)(1). Prior to Johnson, a crime qualified as a "violent felony” under ACCA's residual clause if it "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii).
. Although Petitioner raised other arguments for vacating his sentence before the district court, we only granted a certificate of appeal-ability as to whether his prior Resisting-Arrest Assault Conviction qualifies as a predicate offense for career-offender status in light of Johnson. If we were inclined to agree with Petitioner’s argument that his prior conviction did not qualify under the applicable residual clause, U.S.S.G. § 4B 1.2(a)(2) (2002), we would normally have to decide whether his prior conviction would nevertheless qualify as a predicate career-offender conviction under the applicable force clause, U.S.S.G. § 4B1.2(a)(1) (2002). However, before oral argument, the government withdrew its árgument that Petitioner’s prior Resisting-Arrest Assault Conviction qualifies as a predicate offense for career-offender status under the applicable force clause. Beth Drake, Letter to the Fourth Circuit (May 8, 2017), Therefore, the success of Petitioner’s appeal rises and falls on his residual-clause argument.
. Prior to Beckles, the majority of circuits held that Johnson’s holding extended to like-worded residual clauses in versions of the advisory Sentencing Guidelines, see Beckles,
. Petitioner’s motion would also be untimely to the extent it relies on the general principles of due-process jurisprudence noted in Johnson, principles recognized long before Johnson which provide too broad a standard to constitute a right or rule in other similar contexts. Cf. Anderson v. Creighton,
Dissenting Opinion
dissenting:
To take advantage of 28 U.S.C. § 2255(f)(3), a petitioner must first assert a right newly recognized by the Supreme Court, The majority reads this to mean that a petitioner must assert the right as expressed in the Supreme Court’s narrow holding newly recognizing that right, and wheré the four corners of that holding do. not encompass the precise facts underlying a petitioner’s claim, § 2255(f)(3) is not satisfied. But § 2255(f)(3) contains no such requirement, and in my view, a newly recognized right is more sensibly read to include the reasoning and principles that explain.it. And where a petitioner,asserts that right, with all its. contours and complexities, I would find that he or she satisfies § 2255(f)(3).
In Johnson, the Supreme Court recognized a defendant’s right not to have his or her sentence fixed by the application of the categorical approach to an imprecise and indeterminate sentencing provision, and it struck down the ACCA’s residual clause as inconsistent with ' that newly recognized right. Because Brown asserts that same right, I would find his petition timely under § 2255(f)(3), even though his challenge is to the residual clause under the mandatory Sentencing Guidelines, rather than the ACCA. I would further find that Johnson compels the conclusion that the residual clause under the mandatory Guidelines is unconstitutionally vague, and I would grant Brown’s petition and remand for resentencing. Accordingly, I must respectfully dissent.
I.
On March 19, 2003, Brown pleaded guilty to possession with intent to distribute fifty grams or more of cocaine báse, in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(iii), and to carrying a firearm during the commission of a drug crime, in violation of 18 U.S.C. § 924(c). J.A. 11. The presentence investigation report (“PSR”) indicated that Brown was eligible for the career-offender enhancement under the mandatory Sentencing Guidelines, based on his prior' felony convictions for drug trafficking and assault on a police officer while resisting arrest. .J.A. 90. The PSR assigned Brown an offense level of 34, J.A. 90, and a criminal history category of VI, J.A 96. According to the PSR, Brown’s mandatory Guidelines range was therefore 262-327 months in prison for the drug
The district court adopted the PSR’s factual findings and Guideline applications, and on July 14, 2003, sentenced Brown to 322 months in prison. Brown’s sentence consisted of 262 months for the drug charge and 60 months for the firearm charge. J.A. 8-9. Brown did not appeal his sentence.
On January 28, 2016 — more than twelve years later — Brown filed a 28 U.S.C. § 2265 motion to vacate his sentence. J.A. 19-23. He argued that the Supreme Court’s June 26, 2016 decision in Johnson v. United States, — U.S. -,
The district court did not address whether Brown’s argument regarding the assault claim was timely in light of Johnson, but instead went directly to the merits of the claim. J.A. 38. The court concluded thát because Brown’s assault conviction qualified as a crime of violence under the Guidelines’ force clause, it did not need to reach the question of whether the conviction was a crime of violence under the Guidelines’ residual clause — or whether the residual clause was still valid in light of Johnson. J.A. 40. And, the court found, Brown’s argument that his drug trafficking conviction was not a controlled substance offense was “not based at all oh Johnson,” but rather was “simply an unrelated claim that this Court erred when it sentenced Brown in 2003.” J.Á. 42. The court stated that Brown could not “use Johnson 'to revive an untimely, unrelated claim,” and it rejected his drug trafficking claim without discussing the merits. J.A. 42. The court dismissed Brown’s § 2255 motion with prejudice and declined to grant a certificate of appealability (“COA”). J.A. 43. Brown timely appealed and moved for a COA.
II.
As the majority recognizes, a threshold issue for this Court is whether Brown’s § 2255 petition is timely. Under 28 U.S.C. § 2255(f)(1), a petitioner has one year from the date that his or her judgment of conviction becomes final to attack the corresponding sentence. Because Brown’s judgment of conviction has been final for more than a decade, to bring a § 2255 petition, he must satisfy one of § 2255(f)’s other conditions for restarting the limitations period. Here, he relies on § 2255(f)(3), which permits a § 2255 petition that “assert[s] ... a right that has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review” within one year of the Supreme Court’s recognition of the right. 28 U.S.C. § 2255(f)(3); see also Dodd v. United States,
It is well-settled in this Circuit that the Johnson Court recognized a new constitutional rule, and that the Welch Court made that rule retroactively applicable to cases on collateral review. In re Hubbard,
A.
In Johnson, the Supreme Court held that the ACCA’s residual clause was unconstitutionally vague in violation' of the Fifth Amendment’s Due Process Clause. Johnson,
The ACCA’s residual clause defined, a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). To determine whether a particular crime qualified as a violent felony under the ACCA’s residual clause, courts had to use the “categorical approach” to “picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presented] a serious potential risk of physical injury.” Johnson,
In Welch, the Court held that Johnson is a substantive decision that is retroactively applicable to cases on collateral review.
Subsequently, in Beckles v. United States, — U.S. -,
The Beckles Court thus excluded from the scope of Johnson’s, rule those sentencing provisions that advise, but do not bind, a sentencing court. But in so doing, the Court did not disturb Johnson’s holding that where a vague sentencing provision operates to fix a defendant’s sentence under the categorical approach, it is susceptible to attack under the Due Process Clause. Indeed, Justice Sotomayor, concurring in the judgment, noted that the majority opinion “at least leaves open the question whether defendants sentenced ... during the period in which the Guidelines did fix the permissible range of sentences ... may mount vagueness attacks on their sentences.” Id. at 903 n.4 (Sotoma-yor, J., concurring in the judgment) (internal citations and quotation marks omitted).
With the scope of Johnson’s right in mind, I next consider whether Brown can rely on that right to render his § 2255 motion timely.
Brown contends that because the mandatory Sentencing Guidelines’ residual clause is identical in text to the AGCA’s residual clause, enhancements under both clauses were applied using the categorical approach, and the clauses were similarly used to fix, rather than advise, applicable sentencing ranges, he can rely on the right newly set forth in Johnson to challenge his career-offender status under the mandatory Guidelines. I consider his arguments in turn.
First, it is undisputed that the text of the residual clause under the mandatory Guidelines is identical to the text of the ACCA’s residual clause. Both definitions include felonies that “involve! ] conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. § 924(e)(2)(B)(ii). Section 4B1.2(a)(2)’s text therefore supports Brown’s argument that Johnson’s newly recognized right is applicable to a challenge to § 4B1.2(a)(2)’s residual clause.
Second, courts applied the categorical approach to both residual clauses. Like courts applying the ACCA, “[i]n determining whether a prior conviction triggers a sentence enhancement under the Sentencing Guidelines, ‘[courts] approach the issue categorically, looking “only to the fact of conviction and the statutory definition of the prior offense.”’” United States v. Montes-Flores,
Finally, like the residual clause at issue in Johnson, the mandatory Guidelines’ residual clause imposed fixed, rather than advisory, sentencing ranges. When Brown was sentenced, the Supreme Court had not yet decided United States v. Booker,
Ultimately, that the residual clause at issue here is contained in the mandatory Sentencing Guidelines, rather than the ACCA, is a distinction without a difference for purposes of this Court’s timeliness inquiry. The clauses’ text is identical, and courts applied them using the same categorical approach and for the same ends— to fix a defendant’s sentence. The right newly recognized in Johnson is therefore clearly applicable to Brown’s claim, because the mandatory Guidelines’ residual clause presents the same problems of notice and arbitrary enforcement as the ACCA’s residual clause at issue in Johnson. The majority, by finding that a defendant sentenced under a nearly identical provision with nearly identical effects cannot assert the right newly recognized in Johnson, unnecessarily tethers that right to the ACCA itself, when the right clearly stems from the due process protections that prohibit such sentencing schemes more generally. This narrow view divests Johnson’s holding from the very principles on which it rests and thus unduly cabins Johnson’s newly recognized right.
I would find that Brown is asserting the right newly recognized in Johnson. And because this Court found that “the rule in Johnson is substantive with respect to its application to the [mandatory] Sentencing Guidelines and therefore applies retroactively,” Hubbard,
Lastly, I would find in favor of Brown on the merits of his claim. As previously discussed, first, the text of § 4B1.2(a)(2)’s residual clause is identical to the text of the ACCA’s residual clause, which the Supreme Court held unconstitutionally vague in Johnson. Second, courts enhanced sentences under § 4B1.2(a)(2)’s residual clause using the categorical approach, just as they did when enhancing sentences under the ACCA’s residual clause. And third, like the ACCA, the mandatory Guidelines fixed minimum and maximum sentences and bound courts to sentence within particular ranges. This case diverges from Johnson only because Brown’s sentence was enhanced under the mandatory Guidelines, rather than the ACCA, but I can discern no principled reason that such a distinction should dictate an outcome different than in Johnson, particularly where the concerns outlined in Beckles are not implicated.
As the Court recognized in Johnson, defendants have a due process right not to have their sentences enhanced by the application of the categorical approach to an imprecise and indeterminate sentencing provision.
For all of these reasons, I would grant Brown’s § 2255 motion and remand for resentencing.
. Under the mandatory Sentencing Guidelines, § 4B 1.2(a) reads in full:
The term "crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S. Sentencing Guidelines Manual § 4B 1.2(a) (U.S. Sentencing Comm’n 20002) (emphasis added). Section 4B 1.2(a)(1) is the force clause, and § 4B 1.2(a)(2) consists of the enumerated-offense and residual clauses, with the residual clause denoted above in italics.
. Because we granted a COA only as to Brown’s argument regarding his assault conviction, the question of whether his South Carolina drug trafficking conviction constitutes a controlled substance offense under the Guidelines is not before this Court.
, Although the Welch Court describes Johnson as newly recognizing a "rule,” rather ' than a “right,” courts, including this one, use the terms interchangeably. See, e.g., United States v. Powell,
. Beckles's § 2255 motion was timely because he brought it within one year of the date on which his conviction became final. See 28 U.S.C. § 2255(f)(1); see also Beckles,
. The majority reads Justice Sotomayor’s . statement to mean that the question of whether the Johnson Court newly recognized a right applicable to a challenge to the mandatory Guidelines is still open, See Maj. Op. at 299 n.l, 300, 302. But Justice Sotomayor, in her concurrence, suggested only that the merits of such a challenge have not yet been decided. And she noted that the majority's decision in Beckles did not foreclose such a challenge. But she said nothing of timeliness under § 2255(f)(3), or whether the Court's Beckles decision would in any way undermine a petitioner's ability to bring a § 2255(f)(3) petition challenging the mandatory Guidelines in light of the right newly recognized in Johnson.
. Similarly, when district courts fix sentences under the ACCA, they are prohibited from sentencing a defendant below the statutory mandatory minimum, save for the relatively rare cases where the government has filed a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or where the defendant qualifiés for a safety-valve reduction under 18 U.S.C. § 3553(f).