United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge.
the court is Defendant John Charles Kenney's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. (Doc. 58). For the reasons that follow, we will
dismiss the motion, but will issue a certificate of
August 17, 1992, Defendant was convicted by a jury of bank
robbery, 18 U.S.C. § 2113(a). (Doc. 39). On October 27,
1992, a Presentence Investigation Report (PSR) was prepared,
which calculated Defendant's Base Offense Level as 20
under the United States Sentencing Guidelines (U.S.S.G. or
Guidelines), U.S.S.G. § 2B3.1. (PSR ¶ 9). A
four-level enhancement was applied due to the crime involving
the property of a financial institution and an expressed
threat of death, U.S.S.G. § 2B3.1(b)(1), (2)(D).
(Id. ¶ 10). An additional eight-level
enhancement was added because Defendant was designated as a
career offender pursuant to U.S.S.G. § 4B1.2(a), as he
had committed two prior crimes of violence before the instant
offense. (Id. ¶¶ 14, 16). The PSR did not
identify which of Defendant's prior convictions qualified
as crimes of violence, but included convictions for robbery
in 1986 and armed bank robbery in 1992. (Id.
¶¶ 19, 22). Defendant's Total Offense Level was
32 and his criminal history was category VI, yielding a
Guidelines range of 210 to 262 months' imprisonment,
which was capped at a statutory maximum of 240 months'
imprisonment pursuant to 18 U.S.C. § 2113(a).
(Id. ¶¶ 14, 26, 33). The PSR explained
that because of an undischarged term of imprisonment imposed
in the Western District of Pennsylvania, and pursuant to
U.S.S.G. § 5G1.3, “the court will need to impose a
consecutive sentence of at least fifty months.”
(Id. ¶ 35).
November 1992, the court sentenced Defendant to fifty
months' imprisonment and five years of supervised
released, which would run consecutive to an undischarged
sentence of 262 months' imprisonment that had already
been imposed in the Western District of Pennsylvania.
(Id. ¶¶ 34-36; Doc. 46). On July 19, 1993,
the Third Circuit affirmed Defendant's conviction and
sentence. (Doc. 55).
17, 2016, Defendant filed the instant motion to vacate his
sentence under 28 U.S.C. § 2255, arguing that, in light
of the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), he
no longer qualifies as a career offender and his sentence
under U.S.S.G. § 4B1.2(a) violates due process of law.
(Doc. 58 at 3). The instant motion is Defendant's first
§ 2255 motion.
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (ACCA) was
unconstitutionally void for vagueness. 135 S.Ct. at 2563. One
year later, in Welch v. United States, the Supreme
Court held that Johnson created a new substantive
rule of constitutional law that was retroactive to
ACCA-residual-clause cases on collateral review. 136 S.Ct.
1257, 1268 (2016).
the career offender guideline contained an identically worded
residual clause, see U.S.S.G. § 4B1.2(a)(2)
(1992), Defendant argues in his motion that he was sentenced
under that guideline's residual clause and that
“[a]lthough Johnson addressed the residual
clause in the ACCA, the decision also applies to the
definition of [a] crime of violence set forth in the
sentencing guidelines.” (Doc. 58 at 4). As such,
Defendant argues that Johnson and Welch
entitle him to relief because they established a new right
made retroactive to cases, like his, on collateral review.
(Doc. 58 at 3-6).
of whether the Supreme Court would extend its holding in
Johnson regarding the constitutionality of the
ACCA's residual clause to the identically worded residual
clause of the career offender guideline, we held
Defendant's motion in abeyance until the Supreme Court
issued a decision in Beckles v. United States, 137
S.Ct. 886 (Mar. 7, 2017). See United States v.
Kenney, No. 1:92-CR-22, 2016 WL 7117919, at *4 (M.D. Pa.
Dec. 7, 2016).
prior decision holding the motion in abeyance, we noted that
Defendant's motion was subject to a one-year statute of
limitations and that the “most likely avenue” for
the motion to be timely was under 28 U.S.C. §
2255(f)(3), “which allows a defendant to file a motion
seeking to collaterally attack his sentence within one year
from ‘the date on which the right asserted was
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review.'” Id. at *2 (quoting 28 U.S.C.
§ 2255(f)(3)). In that decision, we clarified that the
Supreme Court's opinions in Johnson and
Welch only applied to void-for-vagueness challenges
to the ACCA's residual clause, and elaborated that
neither case “sweeps so broadly so as to create a newly
recognized ‘right' that encompasses collateral
challenges to the vagueness of the career offender
guideline's residual clause.” Id. at *3.
We reasoned that Defendant's instant motion sought to
assert the creation of a second new right-or rule-that would
apply Johnson and the constitutional vagueness
doctrine to the career offender guideline's residual
clause. Id. at *4. We held Defendant's motion it
in abeyance because, in Beckles, “the Supreme
Court [was] poised to decide whether such a new right
Beckles, the Supreme Court explained that its
decision in Johnson, holding the ACCA's residual
clause unconstitutional, did not extend to the residual
clause of the advisory career offender guideline. 137 S.Ct.
at 890. The Court held that U.S.S.G. § 4B1.2(a)(2) of
“the advisory Guidelines [is] not subject to vagueness
challenges under the Due Process Clause.” Id.
Distinguishing its holding in Johnson, the Court in
Beckles relied on the distinction between the effect
at sentencing of the discretionary nature of the advisory
Guidelines and mandatory statutes like the ACCA:
Unlike the ACCA, however, the advisory Guidelines do not fix
the permissible range of sentences. To the contrary, they
merely guide the exercise of a court's discretion in
choosing an appropriate sentence within the statutory range.
Accordingly, the Guidelines are not subject to a vagueness
challenge under the Due Process ...