United States v. Thilo Brown

853(p) views, authorizes courts to the for evolving order ment’s own it is appar- now property only feiture substitute where ent that our existing precedent construing 853(a) property [Section ]” Section 853 cannot “described be maintained and that rendered “as a result of unavailable reconsideration of our minority rule is ap- act omission of the defendant.” U.S.C propriate. § 853(p). tense, past Framed in the text, By its plain 853(e) permits Section

provision means that forfeiture order government to obtain a pretrial re- covering property may substitute issue straining only over order those assets that conviction, only upon showing, after directly subject are proper- forfeiture as directly forfeitable assets have been ren ty traceable to a charged offense. Conse- Jarvis, dered unavailable. F.3d at quently, our precedents to the contrary (explaining “im 853(p) that Section are overruled and the district court’s order poses specific preconditions on govern relying on those authorities is VACATEÜ. ability ment’s to claim title the defen dant’s property, substitute preconditions

which can be once the defen satisfied convicted”).

dant has been sum,

In signaled Court has

that there is firma distinction between the

government’s authority to restrain tainted untainted assets in construing Section America, UNITED STATES provisions. and related restraint Con- Plaintiff-Appellee, important distinction, sistent with this Congress when to permit gov- intends v. ernment to restrain both tainted and un- BROWN, Thilo Defendant-Appellant. trial, clearly assets before it has tainted provided for authority. Lacking such such No. 16-7056 authorization, 853(e) express Section does United States Court of Appeals, terms permit pretrial its restraint Fourth Circuit. of substitute assets. Argued: May III. August Decided:

In reevaluating existing our precedent, we are mindful owed to deference colleagues

our predecessors, whose

carefully reasoned conclusions we are upon

called nearly scrutinize. decided,

three decades since Billman was

however, federal courts have continued

explore the statutory constitutional and government’s

limitations of authority

to restrain property those who stand violating

accused of law. federal With continuing

benefit developments, these

as well as pronouncements the most recent govern- and the Penn, OF-

ARGUED: Alicia Vachira THE FEDERAL PUBLIC DE- FICE OF FENDER, Charleston, Carolina, for South Lewis, OF- Appellant. William Camden AT- OF THE UNITED STATES FICE TORNEY, Columbia, Carolina, for South Drake, Beth United Appellee. ON BRIEF: Columbia, Attorney, South Car- States olina, Austin, Taylor Assistant Marshall Attorney, OF States OFFICE ATTORNEY, THE UNITED STATES Charleston, Carolina, for Appellee. South GREGORY, Judge, Chief Before DIAZ, Judges Circuit DUNCAN and DUNCAN, Judge: Circuit ap Thilo Petitioner-Appellant dismissing peals the district court’s order § 2255 motion. This court his 28 U.S.C. of appeala- a certificate granted Petitioner whether, bility the issue of U.S. -, Johnson v. United Carolina conviction assault South arrest, resisting police officer while 16-9-320(B) (“Resisting- §Ann. S.C. Code Conviction”), as a qualifies Arrest Assault (b)(l)(A)(iii) predicate Offense”), “crime of violence” for (“Drug career- car- rying offender status under during firearm the commission of a 4Bl.l(a), 4B1.2(a) drug §§ U.S.S.G. crime in violation of 18 U.S.C. (2002). follow, 924(c) (“Firearm Offense”). For the reasons that we J.A. At affirm the district court. sentencing, the district designated court Petitioner career offender if, alia, Petitioner can succeed inter 4Bl.l(a) (2002) § U.S.S.G. because he had a Supreme precedent has rendered prior felony qualified conviction that as a timely by his motion recognizing a new predicate offense,2 controlled-substance him entitling to relief. 28 U.S.C. his prior Resisting-Arrest and Assault 2255(f)(3). § acknowledges, As the dissent Conviction qualified predicate as a crime- Johnson, neither any nor nor oth- 90, 91; of-violence offense. J.A. U.S.S.G. er Supreme Court has recognized case 4B1.2(a) (2002). § Because district specific right on which Brown seeks to 14, on July sentenced Petitioner Johnson, rely.1 2555-56, See 135 S.Ct. at 2003, Booker, before United States v. 543 2560, 2563; Beckles, -, U.S. 220, 738, 886, 895, (2017); see (2005), Petitioner’s career-offender status J., also id. at n.4 (Sotomayor, concur- mandatory guideline resulted in a range of ring). respect view, With for its we are Drug 262-327 for the months Offense and constrained Ef- Antiterrorism and a minimum sixty consecutive sentence of (AEDPA) Penalty juris- fective Death Act months the Firearm Offense.3J.A. 89- prudence extrapolating beyond from 02. Petitioner received total sentence of Supreme holding apply Court’s what we guidelines’ months —the low end view its “reasoning principles” and range for both offenses and well within the different facts under a statute or different range permissible statutory sentences sentencing regime. compelled are thus We imposed. the district court could have to affirm the dismissal of Petitioner’s mo- J.A. 8-9. judg- The district court entered untimely tion as 28 U.S.C. against ment July Petitioner on 2003. 2255(f)(3). § 8-9. not appeal. J.A. Petitioner did I. B.

A. On June 2015—after Petitioner’s On March pleaded final purposes Petitioner conviction became guilty possession review, with intent to distrib- direct but before Petitioner filed grams ute 50 of crack any § more cocaine in 28 U.S.C. motion—the Su- 841(a)(1), §§ violation preme U.S.C. Court decided Johnson. cocaine, specifically 1. The recognizes trafficking dissent agreed crack open question government's filing Beckles leaves whether of an contest informa- tion, applies mandatory-guide- rendering subject under a mandatory him to a (240 months) regime quotes lines from years Justice Sotoma- minimum sentence of 20 yor’s concurring opinion Drug § in Beckles for his to that 851. Offense. U.S.C. effect. at 309. If a is ex- infra pressly open, right, by definition, left then the 3.The Firearm Offense carried a recognized. has not been penalty years impris- minimum of five to life onment, consecutively run other stipulated

2. plea agreement Petitioner imprisonment imposed. term of 924(c); 79-80, prior felony drug he had a conviction for J.A. 2255(f)(3), petitioner can file a the Court held Under 2555. In on, clause was void relying right newly ACCA’s 2255 motion Id. at 2563.4 recognized by Supreme provided alia, that, one-year he files within a inter Petitioner January filed On running motion to vacate his “the date which sen- window Relying on Petitioner ar- tence. initially recognized asserted was Resisting-Arrest As- gued, that his Court.” Id. longer no serve as sault Conviction could must, acknowledges, as he Petitioner violence under predicate crime of U.S.S.G. recent Court’s therefore, 4B1.2(a) (2002), his earli- forecloses a career designation as offender was er 19-23, 45-54., explicitly invalidated all residual unjustified. J.A. Petitioner’s premise on the argument wording rested with similar ACCA’s clauses holding invalidated , clause. Petitioner nev invalidated residual clause,'but also ACCA’s like-word- urges extrapolate this court to a ertheless Sentencing in the residual clauses ed Booker, Johnson, recognized right from 17, 2016, the' On June district Guidelines. together. read Petitioner and Petitioner’s motion with court dismissed maintain that we can his dissent find a prejudice and'declined issue certificate principles animating in the asserted ap- Petitioner appealability. of J.A. 37-44. them, though of these decisions even none ap- a of pealed for certificate and moved any precedent, nor other 5, August on 2016. On Decem- pealability a have 7, 2016, granted Petitioner a ber pr e-Booker Guide on the of appealability of issue certificate for lines as void and despite Resisting-Arrest prior Assault whether his expressly fact that the Beckles Court de predicate as a qualifies offense Conviction of the issue clined address whether light of career-offender status John- pr mandatory Sentencing e-Booker Guide son. void-for-vagueness are amenable

lines II. 895; challenges. See 137 S.Ct. J., (Sotomayor, at 903 n.4 see also id. appeal, On Petitioner relies 2255(f)(3) timely. concurring). motion to render his agree imposes statutorily 15- If we were inclined to with 4. ACCA mandated Johnson. year prison person who prior minimum term his convic- Petitioner’s (cid:127) 922(g) pre and has three violates U.S.C. qualify applicable did under the re- tion qualify vious either "ser convictions that as clause, 1.2(a)(2) (2002), sidual U.S.S.G. 4B drug felony.” ious offense” or a "violent normally we would have to decide whether 924(e)(1). Prior to a crime quali- his conviction would nevertheless qualified felony” as a "violent under ACCA's fy predicate as a career-offender conviction con clause if it "otherwise involve[d] applicable force U.S.S.G. presents potential duct that serious risk of However, 4B1.2(a)(1) (2002). before oral physical injury another.” Id. árgu- argument, government withdrew its 924(e)(2)(B)(ii). prior Resisting-Arrest ment Petitioner’s qualifies predicate as Assault Conviction Although arguments Petitioner raised other offense for career-offender status under the vacating before the district sentence Drake, applicable force Beth Letter to court, clause. only granted appeal- we a certificate of 8, 2017), Therefore, (May the Fourth Circuit prior Resisting-Arrest ability as whether appeal success of Petitioner’s rises and qualifies predicate Assault Conviction argument. offense for falls on his residual-clause career-offender status of present- the question Consequently, We review de novo to find Petitioner’s motion appeal. ed on See United Diaz- timely, v. we States must conclude it relies (4th Ibarra, 2008); Cir. right “recognized” in Johnson or another Thompson, v. United States more recent Court case. See 2005). below, explained 280-81 As Dodd, 357-59, 2478; 545 U.S. procedural posture of we are Mathur, see also 685 F.3d at 399-401. “As compelled to affirm. with statutory of interpreta tion, analysis begins our plain with the A. language Quar v. Jimenez statute.” Congress’s with accordance terman, 555 U.S. to limit the intent number collateral- (2009).

review cases before federal courts and to (1) “recognize” To something is “to convictions,

respect the finality the Anti- (2) acknowledge formally” or [it] “to ac and Effective Death Penalty terrorism Act 104-132, knowledge or take notice some Pub. L. [it] No. Stat. (codified way.” Recognize, definite as amended scattered sec Merriam-Web U.S.C.) 18, 22, 28, 40, Collegiate Dictionary ster tions Tenth (1996); (“AEDPA”), provides Tapia for a see also v. one-year stat 319, 327, 2382, § of 2255 U.S. 131 ute limitations 28 S.Ct. 180 motions. L.Ed.2d 2255(f). (2011). Thus, § Normally, for a to 357 Supreme motion a Court case 2255(f), timely petitioner “recognized” be under a has an right asserted within year meaning 2255(f)(3) must file for one relief within the if it has for judgment mally acknowledged date that of conviction be right in a definite 2255(f)(1); Clay 362, comes final. See id. v. way. Taylor, v. 529 Williams U.S. Cf. States, 522, 525, 412, 120 1495, (2000) United 537 U.S. 123 S.Ct. S.Ct. 146 L.Ed.2d 389 (2003). 1072, However, 155 un L.Ed.2d 88 (interpreting phrase “clearly the estab 2255(f)(3), pe law, der courts will consider a by lished as determined the Federal (1) if on timely titioner’s motion relies he Supreme provision Court” within another right recognized by Supreme the Court holdings, of AEDPA to meán “the as op final, (2) judgment after became he posed Supreme the prec dicta” Court year a motion files within one “the edent). if Correspondingly, the existence ini right date which the asserted was on. an right open question as a remains Court,” tially recognized by Supreme Supreme precedent, matter of Court then (3) 2255(f)(3), the' Su Supreme “recognized” not Court has preme Court or this has court made the Cain, Tyler that right. v. 533 U.S. Cf. right retroactively applicable. See Dodd v. 662-64, 121 S.Ct. States, 353, 358-59, United U.S. (2001) (interpreting the word “made” with (2005); L.Ed.2d 343 United provision another of AEDPA —“made Mathur, v. States F.3d 397-98 retroactive cases collateral review (4th 2012); Thomas, Cir. United States v. “held”). Supreme mean Court”—to 2010). Al 627 F.3d 536-37 though right court can render retro B. actively applicable, only Supreme right Petitioner recognize right Court can now turn new We 2255(f)(3). Dodd, 357-59, Supreme at claims the Court See U.S. 2478; Thomas, at 536- Johnson. Petitioner’s motion relies 37; Mathur, see also at due-process right 399-401. have his claimed points Petitioner Reply Finally, Br. at 18. without refer

guidelines’ range calculated carefully limit- vague Sentencing out that the Beckles Court allegedly ence to an ,despite advisory Sentencing fact provision ed its Guidelines’ view, Guidelines, imposed thus, leaving open his sentence in his district statutory question limits. Re permissible of whether defendants could within Petitioner, Supreme grettably imposed sentences right recognize’ such a mandatory Sentencing Court did not void 895; did announce Johnson 137 S.Ct. at Johnson. While right, J., v. retroactively applicable (Sotomayor, Welch see also id. at n.4 —, concurring). 136 S.Ct. John Yet Petitioner’s self-defeat- only with the residual son dealt clause open left ing. If the statute, ACCA—a enhancement federal Petitioner’s whether asserted 2555-56. at exists, right Supreme Court has not mandatory Sentencing did discuss “recognized” right. supra Part See clause at issue here Guidelines’ residual II.A. in other versions of the residual clauses id. at 2555-56. See issue here the residual While issue in mirrors the C. made clear the Beckles Court to- announced Johnson did urges this court to cobble Petitioner similarly all automatically apply gether combining reasoning with that of two other worded clauses. 890; eases, States v. S.Ct. at see also United Booker and Beckles. Petition- (4th 2017). Mack, Cir. extrapolation begins with 855 F.3d

er’s three-case specifically Booker Johnson unobjectionable premise the Beckles held advisory Sentencing failed to the recognized a constitutional distinction be- invalidate of “crime of mandatory Sentencing Guidelines’-former definition tween Guidelines 4B1.2(a)(2) violence,” Book- Sentencing U.S.S.G. advisory Guidelines. er, “identically was ACCA’s Moving which worded” at S.Ct. 738. Beckles, Booker, at 890. argues on from Petitioner residual clause. out, Beck- mandatory Sentencing points cabined As himself Guidelines Petitioner holding its sentencing judge’s carefully a man- les Court crafted discretion logic of deciding avoid whether the John that raises the same concerns animat- ner of applied son the context ACCA. ing the Court’s decision John- outside Supreme id.; Mack, at see also 585. fair notice to defendants and See denying son: Hence, Supreme confirms that the arbitrary by judges. enforcement Beckles inviting yet recognize a broad prove at To this Court has invalidating all clauses as void point, points to several related Petitioner courts, they vagueness simply exhibit cases the lower which he claims wording that “the similar ACCA’s serve as evidence look and act like the ACCA.” clause.6 Guidelines cases), (surveying but majority of 137 S.Ct. at 892 n.2

6. Prior circuits contrary ultimately con- reached the held extended to like- Beckles that Johnson’s clusion, ("This held in John- at 890 Court clauses in of the id. worded residual versions identically Sentencing worded residual advisory son ... see short, sought by In Petitioner’s cited cases do not the Petitioner sharply contrasts recognize, point granted and the dissent does not with the relief this court to the to, Here, movant Hubbard. any right helpful only to him.7 unlike in Hub- bard, we consider recognized arguments Petitioner’s that ACCA’s residual clause authorizing appeal after through unconstitutionally vague, 135 S.Ct. at 2557; appealability certificate post- it upon did not touch the residual grant Beckles world. To Petitioner’s re- Likewise, clause at issue here. Beckles quested relief we must confront the timeli- advisory ness issue: rely whether he can on John- are not amenable to “recognized by son as a rule the Supreme challenges. In at 895. future Court.” 28 U.S.C. case, Supreme may agree with an similar to Petitioner’s that inquiry threshold certification because the challenged residual clause Hubbard concerned whether the movant ACCA, operates looks like ACCA and like prima could make a showing facie that his it is void for vagueness like ACCA. See id. application on “a relied new rule consti- (noting at n.2 circuit split). former But law, tutional made retroactive to cases on Beckles quacking demonstrates like by Court, collateral Supreme review unavailable,” enough bring ACCA is not previously that was purview right recognized within the 2255(h)(2); 2244(b)(3)(C); see also id. Accordingly, Johnson. at least for pur- Hubbard, 228; In re at In F.3d re review, poses of for Vassell, collateral must wait we F.3d 270-71 recognize 2014). circuit, making In this a prima such Dodd, urged by Petitioner. See 545 U.S. at showing requires facie the movant to meet bar, Hubbard, relatively S.Ct. 2478. We hold that Petition- low re 231; untimely er raises an motion in court and this does not need 2255(f)(3)’s plain language, reach “the narrow to the successive motion’s binding holding, gatekeeping nature of Johnson’s timeliness at Vassell, stage,” In re position Beckles’s indication that F.3d at 271. ad- open vanced Petitioner remains an required Consistent with what is of this question in Court. 2255(h)(2) stage, the 28 U.S.C. we did consider timeliness

D. underlying argument. movant’s merits In- assumed, note as our recent We well that decision Supreme stead we to the Hubbard, in In re F.3d Court’s resolution of that dis- 2016), contrary. agreement is not among to the The courts of relief federal right unconstitutionally clause constitute a or rule in other [ACCA] similar vague. [advisory] Petitioner that the Creighton, contends contexts. Anderson v. 483 U.S. Cf. Guidelines' residual clause is also void for 107 S.Ct. 97 L.Ed.2d 523 advisory we hold that the Because (1987) (noting, qualified-immunity pur subject Guidelines chal- are not to poses, requiring clearly established rule Clause, lenges under the Due Process we re- "depends substantially upon gen level of petitioner’s argument.”). ject 'legal erality which is the relevant rule’ to identified,” explaining right be to and that the untimely Petitioner’s be motion would also process pro is "due law” too abstract general principles to the extent it on the relies case); every vide a workable standard Chai due-process jurisprudence noted John 342, 347-48, 568 U.S. v. United dez son, principles recognized long before John (2013). provide which son too broad a standard to reasoning application principles to other include the and

appeals “likely enough explain.it. petitioner,asserts residual clauses was ... And where petitioner] has right, made ‘a that with all its. com- [the contours and establish showing of I possible plexities, merit that he or she satis- sufficient to war- would find 2255(f)(3). exploration by the district fies rant a fuller ... [this confirmed own court’s] court/ Johnson, recog- Supreme ‘glance’ government’s argu- merits at the right nized a not to his defendant’s have Hubbard, at 232 In re ments.” application her sentence fixed omitted). (internal citation imprecise approach to an and Today’s holding, like the narrow sentencing provision, indeterminate and it Hubbard, compelled by is this case’s struck the ACCA’s residual clause as down ' procedural posture. this case come Had newly recognized inconsistent with that might appeal, before us on direct we have right. Because Brown same asserts necessary had the inferential license right, I petition timely un- would find interpretations of the credit Petitioner’s § 2255(f)(3), though der even negative Booker, implications found is to the the manda- under Unfortunately Bedeles. and Guidelines, tory Sentencing rather than Petitioner, must we consider his ACCA. I further find that John- would 2255(f) through the lens that narrow compels son the conclusion that residu- this court collateral review. affords al under unconstitutionally vague, I and would III. grant petition and remand reading are be- We constrained I resentencing. Accordingly, respect- must Booker, tween lines fully dissent. right Supreme Beckles create yet com- recognize. Court has We are I. pelled to affirm right recognize can would which pleaded On March timely Petitioner’s motion render guilty possession intent to with distrib báse, fifty grams ute or more of cocaine 841(a)(1) AFFIRMED of 21 violation U.S.C. (b)(l)(A)(iii), carrying a firearm GREGORY, dissenting: Judge, Chief crime, during drug of a the commission 924(c). To U.S.C. violation of 18 J.A. 11. The advantage take (“PSR”) 2255(f)(3), petitioner presentence investigation report assert must first newly recognized by eligible indicated that for the Brown was Court, to mean enhancement majority reads this career-offender mandatory Sentencing petitioner that a assert the must based prior' felony drug on his for expressed in the Court’s narrow convictions holding right, trafficking police and on a officer newly recognizing that and assault resisting of 90. the four corners do. while The wheré arrest. .J.A. PSR that underlying encompass precise assigned not an offense level of J.A. facts Brown VI, claim, 2255(f)(3) petitioner’s history category not of sat- and criminal PSR, 2255(f)(3) According J.A 96. Brown’s no such isfied. But contains requirement, view, newly mandatory range rec- my was therefore and Guidelines ognized right sensibly prison drug to 262-327 for the is more read months mandatory for the fire charge, and 60 months life Guidelines. 20-22.1 J.A. He fur any charge, consecutively arm run argued ther that felony his conviction for imprisonment. other term of J.A. 102. drug trafficking not. was a controlled sub offense. argued stance J.A. 22. Brown that adopted The district court the PSR’s errors, in light of these he should not have findings applications, factual and Guideline designated been' a career offender under July and on Brown to sentenced Sentencing in prison. months Brown’s Guidelines and sentence drug resentencing. months for was entitled consisted of 262 charge 60 months for firearm and The court not district did address charge. J.A. not appeal 8-9. did his Brown argument whether Brown’s regarding the sentence. light assault claim was timely in of John On January 2016—more than twelve son, directly but instead went to the merits years later —Brown filed a 28 U.S.C. of the claim. J.A. 38. The court concluded § 2265 motion to vacate his sentence. J.A. thát because Brown’s assault conviction argued 19-23. He qualified as a of crime violence under the 26, 2016 decision in Johnson Court’s June clause, force Guidelines’ it not did need to v. United U.S. -, reach the of whether the convic his rendered tion a crime of was violence under timely asserting motion because he was Guidelines’ clause—or whether newly —made the residual clause was still of valid retroactively applicable ap on collateral And, Johnson. found, J.A. 40. year peal recog of the one Court’s —within drug traffick right. nition ing conviction not was a controlled sub the Court held stance offense “not oh was based at all that the ACCA’s residual un clause was Johnson,” “simply but rather an unre constitutionally vague. argued Brown lated claim that this Court erred it when identically provision worded sentenced J.Á. Brown 2003.” 42. The 4B1.2(a)(2) mandatory Sentencing court stated that Brown could not “use Guidelines was therefore for also void untimely, 'to revive an unrelated And, contended, J.A. he claim,” drug it rejected trafficking con because his assault conviction did not discussing claim without merits. J.A. stitute a crime violence under 42. The court dismissed Brown’s Guidelines’ force and was an prejudice motion with and declined enumerated offense—the other ave grant appealability certificate categorizing nues offense as a (“COA”). timely appealed crime of J.A. 43. violence—his conviction did qualify as a crime violence a COA. moved mandatory Sentencing presents 1. Under the Guide- otherwise conduct involves lines, 1.2(a) § 4B potential reads in physical injury full: serious risk of term "crime violence” another. means law, punisha- offense or Sentencing state federal Manual by imprisonment exceeding ble 1.2(a) (U.S. term 20002) § 4B Comm’n year, one that— added). 1.2(a)(1) (emphasis is the Section 4B (1) use, attempted has as element the an 1.2(a)(2) force 4B consists of the use, physical or force threatened use of clauses, with enumerated-offense and residual another, against person of above in italics. denoted arson, (2) dwelling, burglary is of a or extortion, explosives, involves use of or 306 right retroactively applica have subsequently granted

This Court Brown made the (internal “on the on a COA issue of whether assault ble to on collateral cases review” resisting police omitted)). officer while arrest under quotation argues marks Brown qualifies predicate as a South Carolina law § petition timely that is for status offense career offender year Supreme it within one he filed the Order, v. Unit of Johnson United States.” the Court’s decision which (4th Brown, v. No. ed States Thilo 16-7056 retroactively ap subsequently Court held 7, 2016), No. 14.2 Cir. Dec. ECF plicable to on cases collateral review States, U.S. -, v. United Welch

II. 1257, (2016). I 194 L.Ed.2d 387 recognizes, a majority As the threshold agree, majority, the I would and unlike for this whether Brown’s issue Court is timely. find petition Brown’s timely. § Under petition is 28 U.S.C. It is this that the well-settled Circuit 2255(f)(1), year § has one petitioner recognized constitu- Johnson Court a new judgment of con the date that his her rule, tional Welch made corre viction becomes final to attack the retroactively applicable that cases rule judg sponding sentence. Because Brown’s Hubbard, on collateral review. re ment of conviction has been final for more (“Johnson (4th 2016) 225, F.3d Cir. decade, § bring 2255 petition, than rule of law announced a new constitutional 2255(f)’s § satisfy one other he must Supreme Court retroac- that the made restarting pe the conditions limitations ”).3 tive .... And it is undisputed Here, 2255(f)(3), § he relies which riod. § 2255 motion one filed his within §a permits 2255 petition “assert[s] ques- year only of Johnson Welch. The newly recognized right ... a that has been inquiry, tion for this Court’s timeliness by Court and retroac made then, asserting whether Brown is is re tively applicable to cases collateral Or, particular right petition. in his of the year view” within one question way, said another is whether recognition right. Court’s recognized newly right 2255(f)(3); see also Dodd v. United attack, collaterally permit Brown would 357-58, States, 545 U.S. 125 S.Ct. through 2255(f)(3), constitutionality (2005) (describing sentence, “(1) was 2255(f)(3) which enhanced under right as requiring that Sen- applicant initially rec asserted Court; (2) logical starting A tencing point ognized newly this this Guidelines. (3) recognized analysis must is therefore the contours right; and Lane, Teague granted we a COA Because v. argument regarding con- his assault discusses which viction, rule, of whether his South newly gov- what constitutes a drug trafficking conviction consti- Carolina retroactively ap- erns a new is whether offense tutes a controlled substance 2255(f)(3)). plicable courts have And Court. Guidelines not before this recognizing a new described Johnson as See, "right” e.g., purposes 3, Although the Court describes John- Welch (7th Holt v. United "rule,” newly recognizing a rather son as ' 2016) Welch, (stating Cir. the Court that in one, courts, including “right,” use than "newly recognized be [in Johnson] See, interchangeably. e.g., terms Therefore, added)). I (emphasis retroactive” 2012) Powell, v. States "right” interchangeably. use "rule” and (calling analysis it "well settled” newly- way of the no fered] reliable choose ... what recognized in Johnson. ‘ordinary* [an] in [non-enumerated crime] more, Court,

volves.” said Even “the A. uncertainty residual clause about how le[ft] much risk it a qualify takes for crime to as Johnson, In Court held a violent felony” by requiring courts “to that the ACCA’s residual clause was un- apply an ‘serious imprecise potential risk’ constitutionally vague violation' of the judge-imagined standard ... to a abstrac Fifth Amendment’s Due Process Clause. this, tion.” at Id. 2558. In of Johnson, 135 at It S.Ct. 2555-57. based its Court held that indeterminacy “the principle on that “the Govern- wide-ranging inquiry required by the re process] by ment violates taking away [due sidual clause both fair denies notice to life, liberty, property someone’s or a arbitrary defendants and invites enforce vague give criminal so that it law fails to by thus, ment judges,” “[i]ncreasing a ordinary of people fair the conduct notice defendant’s sentence under the clause de punishes, it or it so standardless that in- process nies due at law.” Id. enforcement,” arbitrary vites id. at finding principle applies that this to “stat- Welch, In held that just fixing applies utes as it sentences” ais substantive decision is retroac crimes,” defining “statutes elements id. tively applicable to cases collateral re at 2557. Discussing view. 136 S.Ct. at 1265. John defined, clause holding, ACCA’s residual son’s explained the Welch Court felony “any punishable crime by violent as “[t]he of-the residual clause imprisonment exceeding for a term part operation one on its large rests year” that involves categorical'approach, “otherwise conduct that ... ap presents potential physi serious plying poten [the risk serious residual clause’s injury cal tial to another.” the categorical risk] standard under 924(e)(2)(B). approach To determine required whether a courts assess the particular as a qualified hypothetical crime violent felo risk posed ge an abstract ny under ACCA’s residual neric Id. version of the offense.” at 1262. “categorical ap courts had to use the And because Johnson struck down the proach” “picture void for vague kind ACCA’s residual conduct ness, ordinary longer crime involves ‘the “can no mandate or case,’ sentence,” judge and to explained whether that abstrac authorize presented] potential tion a serious risk of Welch Court. Id. 1265. “Johnson estab lishes, words, physical injury.” in other S.Ct. ‘even the use of (quoting factfinding James v. 550 impeccable procedures could legitimate’ U.S. S.Ct. sentence based on that a- (quoting overruled 135 clause.” Id. United States v. U.S. 2551). According Currency, the Johnson Coin & Court, grave (1971)). sum, this inquiry uncertain “le[ft] ty about how to posed by estimate risk Johnson and that a de Welch established judicial crime” process rights fendant’s “tie[d] assess due are violated court, judicially imagined using ment risk when ap ‘ordi crime, nary proach, case’ of real-world fixes that defendant’s sentence statutory provide facts elements.” Id. “The re based statute fails to clause,” concluded, proper sidual the Court “of notice of constitutes what criminal 308 Court thus excluded im The Beckles apply to requires courts conduct Johnson’s, rule sentenc- scope standards. the those indeterminate

precise and advise, bind, at 2557. not id; 135 but ing provisions see also S.Ct. do doing, in so the sentencing court. But a United in Beckles v. Subsequently, did disturb Court U.S. -, 197 S.Ct. sentencing provision vague a that where the L.Ed.2d a sentence un- operates to defendant’s fix recog newly focus on this the sharpened it is categorical approach, suscepti- the der There, filed a right. the defendant nized the Due Process to attack under ble ,2255 sentence on § his motion vacate Indeed, Sotomayor, concur- Justice Clause. Johnson, the resid that after grounds noted the ma- ring judgment, in the advisory defi in the Guidelines’ ual clause open the opinion “at least leaves jority of violence void nition of crime question whether defendants sentenced Court, relying The Id. at 891.4 in Guide- during period ... which the ad between the distinction heavily range of fix sen- permissible did lines mandatory held visory and vagueness attacks may ... mount tences subject are not advisory “the Guidelines (Sotoma- n.4 Id. at 903 on their sentences.” Pro challenges under the-Due vagueness (inter- J., concurring judgment) in yor, This is because Id. at 890. cess Clause.” marks omit- quotation nal citations and guide the “merely advisory Guidelines ted).5 Thus, while discretion,” ex the decision the Court district court’s “[ujnlike ACCA, sentencing provi- shrinking ... the universe plained, and permis not fix the advisory do susceptible to attack Guidelines sions at 892. range of sentences.” Id. sible a has grounds, defendant reinforced “Rather, sentencing advise the Guidelines newly recog- right process the due —as their discretion exercise courts how to have sentence Johnson —not his nized by Con the bounds established within of the application fixed Accordingly, the Court gress.” Id. at 895. imprecise to an approach indetermi- observed, concerns process due “‘[t]he sentencing provision. nate in a world of man require notice .... right scope of Johnson’s With apply.” Id. at longer’ no datory Guidelines mind, I consider whether Brown can next (alterations original) (quoting Iri rely right on that render States, 553 zarry v. (2008)). timely. motion newly recognized timely be 2255 motion was er the 4. Beckles's brought year challenge mandatory it within one of the cause he applicable to a his conviction became final. date on which Maj. Op. open, See is still at Guidelines 2255(f)(1); see also See 28 U.S.C. n.l, 300, Sotomayor, in her 302. But Justice 891; Beckles, 565 United States v. concurrence, suggested only that the merits denied, 2009), F.3d 832 cert. yet decided. have not been such 130 S.Ct. 175 L.Ed.2d U.S. (2009). majority's noted that the decision And she Therefore, need to he demon did challenge. not foreclose such Beckles did ,the did Court need to strate —nor nothing of timeliness under But she said newly recognized consider —whether Johnson 2255(f)(3), whether Court's Beckles allow Beckles to collateral that would way peti- decision would in undermine advisory ly Guidelines sentence attack 2255(f)(3) petition bring ability to tioner's pursuant to 28 challenging Sotomayor’s majority reads Justice right newly in Johnson. question of . mean that the wheth- statement ” enforcement, B. “arbitrary same enhancing courts Brown contends that because the man- sentence under the ACCA’s residual datory Sentencing Guidelines’ residual clause. This too supports argu clause is in text identical AGCA’s ment is to applicable Johnson his residual under enhancements both challenge here. using categorical the applied clauses were approach, similarly and the clauses were Finally, like the clause at residual issue fix, advise, to rather applicable used than in mandatory the Guidelines’ re sentencing ranges, rely he can on the fixed, sidual imposed rather than newly set forth in to advisory, sentencing ranges. Brown When career-offender under the mandato- status sentenced, the Court had not ry arguments I consider Guidelines. yet Booker, decided United States v. 543 turn. 738, 160 S.Ct. First, undisputed it is that the text of (2005) (establishing Sentencing Guide mandatory the residual clause under the as “effectively advisory”), lines and the Guidelines is identical to the text the mandatory, Guidelines were operating still ACCA’s Both residual clause. definitions like to fix sentences. Before statutes Book include felonies that conduct ] “involve! er, the “the Guidelines had force and effect presents potential a risk of serious laws,” 234, 125 738, id. at S.Ct. and were physical injury another.” U.S.S.G. indistinguishable considered from state 4B1.2(a)(2); 924(e)(2)(B)(ii). 18 U.S.C. laws, 233, (“[T]here id. at S.Ct. is 4B1.2(a)(2)’s sup- Section text therefore no significance distinction of constitutional ports Brown’s that Johnson’s between the. Federal Sentencing Guide newly recognized right applicable to lines Washington procedures and the 4B1.2(a)(2)’s challenge to residual clause. Washington, issue in [Blakely v. 542 U.S. Second, courts the applied L.Ed.2d 403 (2004)].”). approach judges theoretically to both residual clauses. Like had While ACCA, the applying ability depart courts determin from the “[i]n Guidelines’ ing triggers prescribed “departures prior range, whether a conviction [were] not case, every sentence under the available in and in fact enhancement Sentenc [were] Guidelines, ing approach ‘[courts] issue unavailable in Id. most.” cases, “only Instead, categorically, looking the fact 738.6 most the Guidelines took nearly conviction definition of into all statutory and relevant fac account tors United determining offense.”’” States v. an individual’s sen (4th Montes-Flores, tence, departure legal Cir. such “no [was] 2013) ly permissible” (quoting States v. judge Cabrera- and “the bound [wa]s Umanzor, to impose sentence within.the 2013)). range.” courts Accordingly, catego Id. the ACCA’s when Like residual clause, then, prior felony mandatory rized convictions crimes of Guidelines’ re mandatory impose sidual under the clause bound courts sen violence Guidelines’ clause, they engage range. prescribed had tences within the Similarly, pursuant when courts fix district sentences substantial motion assistance ACCA, 5K1.1, prohibited 3553(e) under are from they U.S.S.G. sentencing statutory below the defendant qualifiés safety- where the defendant for a minimum, mandatory relatively for the save 3553(f). valve reduction under rare cases has government where the filed Thus, Bedeles, mandatory Guidelines. while under Court’s decision view, challenges contrary majority’s vOid-for-vagueness foreclosing advisory right by clause under together to the residual com need “cobble Guidelines, sentencing [cases],” shows bining Maj. Op. at 302 these sentencing the ACCA’s residual clause right he asserts stems Johnson. mandatory Guidelines’ merely reinforce Bedeles and Booker Indeed, the Court’s was the same. right newly Johnson is Bedeles on the distinc rested decision applicable to claim. indeed advisory mandatory between tion clause at Ultimately, that the residual advisory with the nature in the issue here is contained result dictating -Booker Guidelines post Guidelines, rather than The Bedeles than Johnson. different ACCA, is a a difference distinction without ACCA, that, unlike explained purposes of this Court’s timeliness in- im advisory ... not Guidelines do “[t]he identical, The is quiry. clauses’ text and underlying plicate the twin concerns applied using the same cate- courts them and providing notice doctrine — gorical approach for the same ends— arbitrary preventing enforcement.” Beck fix a to defendant’s sentence. les, This is because “even recognized is newly in Johnson therefore so as an person if a behaves to avoid claim, clearly applicable Brown’s be- the career-of to enhanced sentence guideline, sentencing mandatory court re cause the residual fender Guidelines’ impose presents problems to the enhanced no- tains discretion clause the same sentence,” id., advisory and the Guidelines as arbitrary tice and enforcement sentencing to ex only courts how “advise residual at issue John- ACCA’s clause ercise their discretion within bounds majority, finding that a son. The defen- “ Congress” ‘es and do established nearly identical dant sentenced under penalties minimum and maximum ] provision nearly tablish with identical effects can- ” crime,’ [any] (quoting id. Mis at 895 right newly recognized not assert tretta v. United Johnson, unnecessarily tethers (1989)). 647, 102 L.Ed.2d 714 itself, right clearly the ACCA when entirely is from the manda This different protections process from the stems due judges and tory which “b[ou]nd sentencing such prohibit schemes exercise of their uncontested courts generally. more view divests This narrow pass sentence in criminal responsibility very principles Johnson’s from the Mistretta, cases,” 488 U.S. at unduly it on which rests thus cabins effect “ha[d] force and newly right. Johnson’s laws, prescribing criminal the sentences asserting I is would find Brown receive,” are id. at defendants right newly recognized in Johnson. And (Scalia, J., con dissenting). The S.Ct. 647 “the rule in Court found that underlining Court’s deci siderations respect to is Johnson substantive with its are simply implicated sion Bedeles application [mandatory] Sentencing to the here, operated clause the residual where applies retroac- Guidelines and just Brown’s sentence. therefore like a statute fix Hubbard, then, tively,” I anything, If Bedeles would clarifies John animating principles find satisfies all son’s and affirms 2255(f)(3)’s I newly recognized right ap requirements. would thus does challenges petition clause ply timely. find his residual

III. reasons, For all I these grant would 2255 motion and remand for Lastly, I would find favor of Brown resentencing. on the merits of his As previously claim.

discussed, first, 4B1.2(a)(2)’s the text of identical the text of

the ACCA’s residual which the Su-

preme Court unconstitutionally vague held Second,

in Johnson. courts enhanced sen- 4B1.2(a)(2)’s

tences using approach, just ROMAIN; Stacey Gibson; Lisa Joanika they enhancing did when sentences un- Davis; Robertson; Schevelli Jericho third, der the ACCA’s residual clause. And Macklin; Williams; Dameion Brian ACCA, like the Trinchard, Plaintiffs-Appellants fixed minimum and maximum sentences v. courts to par- and bound sentence within ticular ranges. diverges This case WALTERS, Marketa Garner in her offi- because Brown’s sentence capacity Secretary, cial Department as was enhanced the mandatory Guide- Family Services, Children & Defen- lines, ACCA, rather than the I can but dant-Appellee no principled discern reason that such a No. 16-30929 distinction should an dictate outcome dif- ferent than particularly where of Appeals, States Court the concerns outlined in Beckles are not Fifth Circuit. implicated. Date Filed: 07/26/2017

As the process right

defendants have a due

have their sentences enhanced ap- plication of categorical approach to an III, Eskridge, Charles Robert Esq., Jon- imprecise sentencing and indeterminate Sink, Houston, TX, athan for Plaintiffs- provision. at 2558. And the Appellants. Court made clear in when such Williams-Alexander, Celia Marie Esq., sentencing provisions fixed, set a rather Counsel, Deputy Department General advisory, than categor- sentence under Family & Children Services for State approach, they ical are void for Louisiana, LA, Baton Rouge, for Defen- Here, S.Ct. at dant-Appellee. district court applied ap- Michael T. Kirkpatrick, Public Citizen 4B1.2(a)(2)’s proach DC, Litigation Group, Washington, Amicus which fixed sentencing range— Brown’s CITIZEN, Curiae for PUBLIC INCOR- precisely what the Johnson Court said PORATED, FUND, IMPACT LEGAL afoul of runs the Due Process Clause. AID SOCIETY EMPLOYMENT LAW These cases compel therefore the conclu- CENTER, RIGHTS CALI- DISABILITY sion that under the FORNIA. 4B1.2(a)(2)’s is unconsti- tutionally vague Jackson, and cannot be the basis Thomas Gregory Ann Marie enhancing Arcadi, Chapa, Morgan, sentence. Justin Roel Lewis

Case Details

Case Name: United States v. Thilo Brown

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 21, 2017

Citation: 868 F.3d 297

Docket Number: 16-7056

Court Abbreviation: 4th Cir.