FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO (D.C. Nos. 1:16-CV-00566-WJ-WPL and
Stephen P. McCue, Federal Public Defender, Office of the
Federal Public Defender, Albuquerque, New Mexico, for
R.W. Braun, Assistant United States Attorney (Damon P.
Martinez, United States Attorney, and James D. Tierney,
Acting United States Attorney, with him on the briefs),
Office of the United States Attorney, Albuquerque, New
Mexico, for Appellee.
TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
TYMKOVICH, CHIEF JUDGE.
Miller was sentenced as a career offender under the 1998
version of the Sentencing Guidelines, based in part on his
prior conviction for a crime of violence. After the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), Miller filed a petition under 28
U.S.C. § 2255 to vacate his career-offender sentence,
arguing his sentence violates due process. Specifically,
Miller contended the residual clause in the Guidelines is
void for vagueness-a rule he argued applies retroactively in
collateral proceedings. Miller further argued none of his
prior convictions qualify as a "crime of violence"
under the surviving clauses of the career-offender guideline.
district court dismissed Miller's motion with prejudice.
The court agreed the residual clause in the mandatory
Guidelines did not survive Johnson, but it concluded
that the rule is not substantive and therefore does not have
retroactive effect on collateral review. Instead, the court
reasoned, a rule invalidating the residual clause in the
Guidelines alters only the methods used to determine whether
a defendant should be sentenced as a career offender and
therefore has a procedural function.
jurisdiction under 28 U.S.C. §§ 1291 and 2253(c),
we affirm the dismissal of Miller's motion, though for
different reasons. As an initial matter, we decline to
exercise our discretion to dismiss Miller's petition as
untimely. The government forfeited this argument and offers
no persuasive reasons why we should consider it anyway.
Nevertheless, Miller cannot prevail on the merits. Even
assuming Johnson extends to the mandatory
Guidelines, and that the rule has substantive, retroactive
effect, the residual clause was not unconstitutionally vague
as applied to Miller's conduct. When Miller was
sentenced, the commentary to the career-offender guideline
designated robbery-Miller's prior offense of
conviction-as a crime of violence. Because Miller's
conduct was clearly proscribed, his vagueness challenge must
fail on the merits.
1998, Rodney Miller pleaded guilty to one count of possession
with intent to distribute cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Miller was
designated a career offender under § 4B1.1 of the 1998
version of the Sentencing Guidelines, because he had been
convicted of a controlled substance offense and had at least
two prior convictions for crimes of violence or
drug-trafficking offenses as defined in § 4B1.2(a). In
addition to a prior drug-trafficking conviction, Miller had
prior convictions for New Mexico robbery, armed robbery, and
false imprisonment. The career-offender designation raised
Miller's guidelines sentencing range from 151-181
months' imprisonment to 262-327 months' imprisonment.
The court sentenced Miller to 262 months' imprisonment,
at the low end of the guidelines range.
the Supreme Court held in Johnson that the residual
clause in the Armed Career Criminal Act (ACCA) is void for
vagueness, Miller filed a petition under 28 U.S.C. §
2255 to vacate his sentence, arguing his sentence under the
residual clause of § 4B1.2(a) of the Guidelines violates
due process. Because Miller previously filed an unsuccessful
§ 2255 petition in 2001, he sought and obtained this
court's authorization to file a second petition. Miller
contended the rule from Johnson, as applied to the
residual clause in the mandatory Guidelines, is substantive
and therefore applies retroactively in collateral
proceedings, because it narrows the class of individuals
subject to increased punishment. Miller further argued he was
no longer a career offender, because his convictions for
robbery and false imprisonment do not qualify as predicate
offenses under the surviving clauses of § 4B1.2(a): the
elements and enumerated offenses clauses.
time Miller filed his second § 2255 motion, the
government did not dispute the unconstitutionality of the
residual clause, because our circuit had declared the
career-offender residual clause in § 4B1.2(a) of the
Guidelines unconstitutionally vague in light of
Johnson. See United States v. Madrid, 805
F.3d 1204, 1210 (10th Cir. 2015), abrogated in part by
Beckles v. United States, 137 S.Ct. 886 (2017). Instead,
the government argued that a rule invalidating the residual
clause of § 4B1.2(a) is a procedural rule under
Teague v. Lane, 489 U.S. 288 (1989), that does not
apply retroactively to collateral proceedings.
magistrate judge agreed with the government's
retroactivity argument, concluding that the application of
Johnson to the Guidelines is a procedural rule that
alters only the methods used to determine whether a defendant
should be sentenced as a career criminal. Accordingly, the
magistrate judge recommended dismissal of Miller's §
2255 motion. Miller objected to this proposed finding. The
district court overruled his objections, adopted the
magistrate judge's proposed findings, and dismissed with
prejudice Miller's motion to vacate his sentence. The
district court granted a certificate of appealability to this
Miller's appeal was pending, the Supreme Court decided
Beckles. There the Court held that unlike the ACCA,
the advisory Sentencing Guidelines are not subject to
void-for-vagueness challenges, since they "do not fix
the permissible range of sentences, " but rather
"guide the exercise of a court's discretion in
choosing an appropriate sentence within the statutory
range." 137 S.Ct. at 892. Whereas the ACCA provides
notice of potential punishment by fixing the statutory range
of prison terms, the Court reasoned, the advisory Guidelines
guide judges' discretion within a given statutory range
and therefore are not amenable to a vagueness ...