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Miller v. United States

United States District Court, District of Wyoming

December 15, 2016

UNITED STATES OF AMERICA, Respondent. Criminal No. 2:15-CR-018-SWS


          Scott W. Skavdahl United States District Judge.

         This matter comes before the Court on Petitioner/Defendant Paul Allen Miller's Motion to Vacate Sentence under 28 U.S.C. § 2255. The Court, having considered the briefs and materials submitted in support of the motion and the Government's response thereto, having reviewed the record and being otherwise fully advised, FINDS and ORDERS that the motion should be dismissed.


         On January 14, 2015, Defendant was charged by Indictment with possession of a firearm as a previously convicted felon and as an unlawful user of controlled substances, in violation of 18 U.S.C. §§ 922(g)(1), (g)(3) and 924(a)(2). (ECF No. I.)[1] Defendant subsequently entered into a binding plea agreement with the Government pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. (ECF No. 23.) The Plea Agreement provided that Defendant would enter a guilty plea to the charge of being a felon in possession of a firearm. Id. ¶ 2. In addition, the Plea Agreement specified that, in exchange for Defendant's plea of guilty, the parties agreed he should be sentenced to thirty (30) months imprisonment. Id. ¶ 9(c). The Defendant entered his guilty plea on March 19, 2015. (ECF No. 26.) The Court conditionally accepted Defendant's guilty plea and ordered the preparation of a presentence report ("PSR"). Id.

         The PSR determined the Defendant's advisory Sentencing Guidelines range. Defendant's base offense level was 20 under U.S.S.G. §2K2.1(a)(4), based on a previous conviction for a felony "crime of violence:" to wit, a 2009 conviction for robbery in violation of Wyo. Stat. § 6-2-401.[2] (PSR ¶ 13) (ECF No. 28). With three levels subtracted for his acceptance of responsibility, his total offense level was 17. Id. ¶¶ 20-22. Falling in criminal history category II, Defendant's advisory guideline range was 27 to 33 months. Id. ¶ 71. The parties' stipulated 30-month sentence was thus within the calculated guideline range. See Id. ¶ 72. Neither the Defendant nor the Government raised any objections to the PSR's calculations. (See PSR Addendum) (ECF No. 32).

         The Defendant appeared for sentencing on June 4, 2015. (ECF No. 34.) In accordance with the Plea Agreement, Defendant was sentenced to 30 months imprisonment. Judgment was entered the same day. (ECF No. 35.) Despite having pled guilty and having raised no objections to the PSR, Defendant filed a notice of appeal on June 16, 2015. (ECF No. 36.) On August 20, 2015, the Federal Public Defender for the District of Wyoming was appointed by the Tenth Circuit Court of Appeals to represent the Defendant, and his brief was initially due September 29, 2015. (ECF No. 52.) However, after receiving two extensions of time to file his opening brief, Defendant, through counsel, ultimately moved for voluntary dismissal of his appeal on November 5, 2015. (See Tenth Circuit Case No. 15-8040.) The Court of Appeals granted Defendant's motion to dismiss on November 6, 2015. (ECF No. 53.)

         Defendant filed his § 2255 Motion on May 26, 2016, asserting he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson"), a decision issued by the Supreme Court on June 26, 2015. Defendant argues his sentence violates Johnson because the Court increased his sentence based on the residual clause of §4B 1.2(a) of the Sentencing Guidelines. Defendant asserts that without applying his prior robbery conviction as a "crime of violence, " his base offense level would have been 14 and his Guidelines sentencing range would have been 12 to 18 months.


         The Armed Career Criminal Act ("ACCA") provides for an increased sentence when a defendant who violates § 922(g) has three prior convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e). Johnson held that a portion of the ACCA's definition of "violent felony" - the "residual clause, " which defines a "violent felony" to include a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" (18 U.S.C. § 924(e)(2)(B)(ii)) - was unconstitutionally vague and therefore violated the Due Process Clause of the Fifth Amendment. 135 S.Ct. at 2557. Johnson was made retroactive to cases on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016).

         The Sentencing Guidelines also have a provision qualifying a felon-in-possession of a firearm for an increased sentence when that defendant has one prior felony conviction of "either a crime of violence or a controlled substance offense." U.S.S.G. §2K2.1(a)(4)(A) (2015). The Guidelines likewise define "crime of violence" to include a felony offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. §4B1.2(a)(2) (2015).[3] The Tenth Circuit Court of Appeals has held that Johnson's vagueness holding applies equally to the "virtually identical" residual clause of the Guidelines. United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015).[4] Thus, as Defendant's argument goes, he is entitled to collateral relief because this Court supposedly sentenced him under the Guideline's residual clause defining "crime of violence." Before considering the Defendant's claims, however, the Court must address the rules and standards which govern consideration of a motion to vacate sentence under 28 U.S.C. § 2255.

         First, a § 2255 motion may not test the legality of matters which should have been raised on direct appeal. United States v. Frady, 456 U.S. 152 (1982); United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). "A defendant's failure to present an issue on direct appeal bars him from raising the issue in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed." Warner, 23 F.3d at 291. Where the government raises the procedural bar issue in response to a defendant's § 2255 motion, the court is required to address that issue and, if appropriate, dispose of the case on that basis. United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994).

         Second, new constitutional rules of criminal procedure are generally not applied retroactively on collateral review. Daniels v. U.S., 254 F.3d 1180, 1192 (10th Cir. 2001) (citing league v. Lane, 489 U.S. 288 (1989)). In order to grant collateral relief in a Guidelines case based on Johnson, this Court would have to determine Johnson sets forth a new substantive rule of constitutional law not only in the ACCA context but also in the Guidelines context. As mentioned above, the Tenth Circuit has held Johnson's holding applicable to the residual clause in §4B 1.2(a)(2) in both post-Johnson Guidelines sentencing proceedings and in cases pending on direct review as of the date Johnson was decided. See Madrid, supra. However, the Court of Appeals has not directly decided that Johnson applies retroactively to Guidelines cases on collateral review. Welch only held that "Johnson changed the substantive reach of the [ACCA], " and therefore announced a retroactive rule in that statutory context. Welch, 136 S.Ct. at 1265. See also United States v. Homrich, No. 1:93-CR-16, 2016 WL 4035323, at *2 (W.D. Mich. July 28, 2016). Johnson's effect on §4B 1.2(a)(2) of the Guidelines is an issue presently pending before the Supreme Court. See Beckles v. United States, 136 S.Ct. 2510 (2016).

         A. Procedural Default

         The Government contends Defendant cannot establish good cause for why he failed to raise his Johnson claim either before this Court at sentencing or on direct appeal. In reply, Defendant argues he can show cause for failing to raise a Johnson claim at the time of sentencing because such a claim was foreclosed by Supreme Court precedent. At the time of Defendant's sentencing, James v. U.S., 550 U.S. 192 (2007), and Sykes v. U.S., 564 U.S. 1, 15-16 (2011), had "rejected" the notion "that the residual clause violates the Constitution's prohibition of vague criminal laws." Johnson, 135 S.Ct. at 2556. Defendant further argues he can show cause for failing to raise a Johnson claim on direct appeal in that his appellate counsel was ineffective. In support of his ineffective assistance of counsel claim, Defendant contends the law was clear at the time of his direct appeal that the Court "had to have" relied on the residual clause when it found that his robbery conviction was a crime of violence. (Def.'s Reply Br. at 3.)

         At the time of sentencing, the Court did not explicitly state how Defendant's robbery conviction counted as a crime of violence for purposes of §2K2.1 (a)(4)'s enhanced base offense level.[5] Based entirely on two Tenth Circuit decisions which were years old at the time of his sentencing, Defendant now argues his 2009 Wyoming robbery conviction was not a countable crime of violence under the "elements" or "force" clause of §4B1.2(a)'s "crime of violence" definition - any felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another" (§4B 1.2(a)(1)). See United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008); United States v. Perez-Vargas, 414 F.3d 1282 (10th Or. 2005). Such an argument certainly could have been posed to this Court prior to his sentencing. Defendant suggests, however, it would have been futile to raise that argument at sentencing because his robbery conviction would have counted under the Guidelines' "residual" clause, which was only subsequently deemed unconstitutional. Defendant's argument also presupposes that this Court must have sentenced him under the Guidelines' "residual" clause because his prior robbery conviction did not qualify as a crime of violence under any other provision of §4B1.2(a).

         Even accepting at face value Defendant's contention that he could not have raised a. Johnson claim of error at the time of his sentencing, Defendant has failed to show cause excusing his procedural default for failure to present the issue on direct appeal. Because Johnson was decided well before Defendant's appellate brief was due, he could have raised the argument on appeal that his prior robbery conviction could not be counted as a crime of violence under either the elements clause or the residual clause of ยง4B 1.2(a). The Court finds, however, that Defendant's appellate counsel was not ineffective in failing to raise this argument on appeal because the Court properly counted his prior robbery conviction under the ...

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