Summaries of Selected Opinions, 0419 COBJ, Vol. 48, No. 4 Pg. 82
| Position | Vol. 48, 4 [Page 82] |
U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 17-3194. United States v. Pullen. 1/29/2019. D.Kan. Judge McHugh. Second or Successive Motions Under 28 U.S.C. § 2255—Vagueness Challenge to Guideline § 4B1.1.
Defendant was sentenced as a career offender under USSG § 4B1.1 at a time when the Guidelines were mandatory. His career-offender sentence relied in part on a determination that his prior conviction for escape constituted a "crime of violence" under the residual clause in Guideline §4B1.2.
The Supreme Court subsequently decided Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the residual clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2)(B)(ii), as unconstitutionally vague. This residual clause enhances the statutory mandatory minimum for certain defendants who have three of more previous convictions for a violent felony or serious drug offense. The clause is identical to the residual clause in Guideline § 4B1.2, which defines "crime of violence" for purposes of the career offender guideline. The Supreme Court later made Johnson retroactively applicable. A Johnson claim therefore meets the requirements for a second or successive § 2255 motion under 28 U.S.C. § 2255(h)(2).
Because the residual clause in Guideline § 4B1.2 contains the same language found unconstitutional in Johnson, defendant sought authorization to file a second or successive § 2255 motion to challenge his sentence. The Tenth Circuit found he had made a sufficient prima facie showing and granted authorization. But the district court dismissed his motion, ultimately determining that Johnson did not create a new rule applicable to the mandatory Guidelines that would permit a second or successive § 2255 motion. The district court granted defendant a certificate of appealability.
On appeal, defendant argued that the district court procedurally erred when it relied on § 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when it determined that Johnson did not create a new rule applicable to the Guidelines. Notwithstanding the Tenth Circuit's prior authorization, before reaching the merits the district court was required to determine whether the motion in fact could proceed as a second or successive motion under the requirements of 28 U.S.C. § 2255(h). The Supreme Court has not yet ruled on whether Johnson applies to the mandatory Guidelines. Thus defendant's motion depended on a rule not yet established by the Supreme Court or made retroactively applicable on collateral review, as required by § 2255(h)(2). Because Johnson did not create a new rule of constitutional law applicable to the mandatory Guidelines, the district court correctly concluded that defendant failed to satisfy the precondition for filing a second or successive § 2255 motion.
The dismissal was affirmed.
No. 17-1269. United States v. Iley. 2/4/2019. D.Colo. Judge Holmes. Guidelines Sentencing—Enhancement for Violation of Prior...
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