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United States v. Kenney

United States District Court, M.D. Pennsylvania

August 22, 2017

UNITED STATES OF AMERICA,
v.
JOHN CHARLES KENNEY, Defendant

          MEMORANDUM

          William W. Caldwell United States District Judge.

         I. Introduction

         Before 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 appealability.

         II. Background

         On 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).

         In 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).

         On June 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.

         III. Discussion

         In 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).

         Because 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.”[1] (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).

         Unsure 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).

         In our 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 exists.” Id.

         In 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 ...

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