United States District Court, W.D. Pennsylvania
STEWART CERCONE SENIOR UNITED STATES DISTRICT JUDGE
NOW, this 23rd day of September, 2019, upon due
consideration of defendant's Motion to Correct Sentence
under 28 U.S.C. § 2255 and the development of the record
in conjunction therewith, IT IS ORDERED that the  the
motion be, and the same hereby is, denied.
history of this case as it relates to defendant's motion
accurately is recounted in defendant's motions to stay
and the most recent notice concerning United States v.
Green, 898 F.3d 315 (3d Cir. 2018). Defendant was
sentenced as a career offender under the United States
Sentencing Guidelines at a time when the Guidelines were
binding and had the force of law. His designation as a career
offender assertedly was based in part on the residual clause
in U.S.S.G. § 4B1.2's definition of a "crime of
violence." On May 21, 2004, defendant was sentenced to
188 months on one count of bank robbery in violation of 18
U.S.C. § 2113(a).
§ 2255 motion was filed on June 15, 2016. He seeks
relief on the ground that the residual clause of § 4B1.2
is unconstitutionally vague under Johnson v. United
States, 135 S.Ct. 2551 (2015), and therefore his
sentence can no longer be valid. The Supreme Court
subsequently held that Johnson announced a new
substantive rule which is to be given retroactive effect in
cases on collateral review. Welch v. United States,
136 S.Ct. 1257 (2016). As a result, cases filed within one
year of Johnson were deemed to be timely filed in
accordance with 28 U.S.C. § 2255(f)(3).
the Supreme Court's holdings in Johnson and
Welsh, defendant is not entitled to relief and his
sentence remains valid. Johnson held that an
identical residual clause defining a "violent
felony" under the Armed Career Criminal Act
("ACCA") was void for vagueness and violated the
Due Process Clause. Defendant's constitutional challenge
arises under the mandatory Guidelines.
United States Sentencing Guidelines were mandatory and
treated as binding until the Supreme Court held in United
States v. Booker, 543 U.S. 220 (2005), that such an
approach could not stand consistent with the Sixth Amendment
to the United States Constitution. As a remedy the Court held
that the Guidelines were to be treated as advisory.
challenge to the residual clause in the Guidelines made its
way to the Supreme Court in Beckles v. United
States, 137 S.Ct. 886 (2017). There, the defendant had
been sentenced as career offender under the advisory
Guidelines. Id. at 890. The Court directly held that
"[b]ecause they merely guide the district courts'
discretion, the Guidelines are not amenable to a vagueness
challenge." Id. at 894. Consequently, "the
advisory Sentencing Guidelines are not subject to a vagueness
challenge under the Due Process Clause and  §
4B1.2(a)'s residual clause is not void for
vagueness." Id. at 895. The Court limited its
holding to the advisory Guidelines and by implication left
open and did not decide whether the right recognized in
Johnson applies to the sentences handed down under
the mandatory Guidelines. Id. at 890, 903 n.4
(Thomas, J.; Sotomayor, J. concurring).
United States v. Green, the United States Court of
Appeals for the Third Circuit considered whether a §
2255 motion filed within one year of the Court's decision
in Johnson presented a timely filed motion pursuant
to 28 U.S.C. § 2255(f)(3). 898 F.3d 315 (3d Cir. 2018).
There, the defendant had been sentenced as a career offender
under the then-mandatory Guidelines. His status as a career
offender was based in part on the residual clause in §
4B1.2's definition of a crime of violence. Id.
at 316-17. He contended that because the residual clauses in
the ACCA and the mandatory Guidelines were identical,
applying Johnson's holding to the mandatory
Guidelines was nothing more than a natural extension of the
principles leading to the invalidation of the clause under
the ACCA. Id. at 320. And from his perspective the
Supreme Court already had recognized the application of those
principles to the mandatory Guidelines by limiting its
holding in Beckles to the advisory Guidelines.
Id. at 320-21.
Green, the government countered "that if [the]
question has been expressly left open by the Supreme Court
[in Beckles], by definition it has not been
'recognized by the Supreme Court.'" Id.
at 321. And because the right has not been recognized, the
government maintained that the one-year limitations period
for a § 2255 motion seeking to challenge the residual
clause used during the mandatory Guidelines regime had not
been restarted by Johnson. Id.
considering the import of both Johnson and
Beckles, the court in Green opined:
Johnson's holding as to the residual clause in
the ACCA created a right only as to the ACCA, and not a
broader right that applied to all similarly worded residual
clauses, such as that found in the advisory Sentencing
Guidelines. The Supreme Court in Johnson recognized
a right to not be sentenced under a statute that
"fixed-in an impermissibly vague way-a higher range of
sentences for certain defendants." Beckles, 137
S.Ct. at 892. It [said] nothing about a parallel right to not
be sentenced under Sentencing Guidelines, whether advisory or
Green, 898 F.3d at 831. And because the Supreme
Court has not recognized the right to challenge the residual
clause in the Guideline's definition of a crime of
violence for vagueness, Green could not rely on 28 U.S.C.
§ 2255(f)(3) to restart his applicable statute of
limitations period. In other words, "Green's motion
[was] untimely in light of the plain language of 28 U.S.C.
§ 2255(f)(3) and the Supreme Court’s indication in
Beckles that it remains an open question whether the
mandatory Sentencing Guidelines can be subject to vagueness
challenges." Id. at 322-23.
holding in Green is binding on this
court. As a result, defendant/movant's
pending § 2255 motion must be denied as untimely filed.
Defendant was sentenced on May 21, 2004. The one-year
limitations period to file a § 2255 motion expired long
ago. Johnson did not restart that limitations
period. Consequently, ...