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United States v. Miller

United States Court of Appeals, Tenth Circuit

August 25, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
RODNEY MILLER, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. Nos. 1:16-CV-00566-WJ-WPL and 1:97-CR-00731-WJ-1)

          Stephen P. McCue, Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Appellant.

          James 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.

          Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

          TYMKOVICH, CHIEF JUDGE.

         Rodney 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.

         The 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.

         Exercising 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.

         I. Background

         In 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.

         After 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.

         At the 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.

         The 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 court.

         While 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 ...


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