United States District Court, District of Wyoming
ORDER DISMISSING MOTION TO VACATE SENTENCE
W. Skavdahl United States District Judge.
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.
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.) 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.
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. (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).
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.)
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.
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
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). 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). 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.
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.
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
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.)
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. 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).
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 §4B 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