United States v. London

937 F.3d 502

UNITED STATES of America, Plaintiff - Appellee

v.Bobbie LONDON, Jr., Defendant - Appellant

No. 17-30675

United States Court of Appeals, Fifth Circuit.

FILED August 29, 2019

REVISED September 6, 2019

Jeffrey Ryan McLaren, Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff - Appellee.

Celia Clary Rhoads, Esq., Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant - Appellant.

Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Bobbie London, Jr. is a career offender, serving 327 months for various drug offenses. He appeals the district court’s order denying as untimely his 28 U.S.C. § 2255 motion to correct his 1996 sentence. London contends that the residual clause of the pre- Booker¹ Sentencing Guideline’s career offender provision,² under which he was sentenced, is unconstitutionally vague because its language is the same as the residual clause of the Armed Career Criminal Act (ACCA) declared unconstitutional in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The precise question before us is whether London’s § 2255 motion is timely. To answer that question, however, we must determine whether London asserts the right newly recognized in Johnson , making his motion timely, or whether his § 2255 motion asserts a right not yet recognized by the Supreme Court, rendering his motion untimely. We hold that the right he claims and asserts is not the right recognized in Johnson . We therefore affirm the district court’s dismissal of his § 2255 motion as not entitled to a new statute of limitations and thus time barred.

I.

A.

In July 1996, Bobbie London pled guilty to five violations of the Federal Controlled Substances Act, 21 U.S.C. §§ 841(a)(1) & 846. The court sentenced London as a "career offender," which applies when, inter alia , "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.1 (U.S. Sentencing Comm’n 1995). At the time, i.e. , pre- Booker , the Sentencing Guidelines defined a crime of violence in three clauses: an elements clause, an enumerated offenses clause, and a residual clause.³ Id. § 4B1.2(1). Our concern today is with the provision’s residual clause, which defined a "crime of violence" as "any offense under federal or state law punishable by imprisonment for a term exceeding one year that ... otherwise involves conduct that presents a serious potential risk of physical injury to another."⁴ Id. § 4B1.2(1)(ii).

London had previously been convicted in Louisiana state court for illegal use of a weapon and distribution of cocaine. At his sentencing for his federal crimes, the district judge applied the career offender enhancement and calculated London’s guideline range for imprisonment to be 262 to 327 months. He was thus sentenced, in 1996, to 327 months on each count, to be served concurrently, a sentence he is presently serving.

B.

After London’s sentence became final, the Supreme Court decided two cases that lay the foundation for this appeal. First, in United States v. Booker , the Supreme Court held that the Sentencing Guidelines—under which London was sentenced—if considered "mandatory and binding on all judges," violated the Sixth Amendment by confecting sentences based on facts not established by a plea of guilty or jury verdict. 543 U.S. at 233, 244, 125 S.Ct. 738 (majority opinion of Stevens, J.). To remedy this constitutional violation, the Supreme Court severed "the provision of the federal sentencing statute that makes the Guidelines mandatory ... mak[ing] the Guidelines effectively advisory." Id. at 245, 125 S.Ct. 738 (majority opinion of Breyer, J.).

Second, in Johnson , the Supreme Court recognized a new rule of constitutional law, holding that the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. 135 S.Ct. at 2557–58, 2563. The residual clause in the ACCA defined "violent felony" as "any crime punishable by imprisonment for a term exceeding one year ... that ... otherwise involves conduct that presents a serious potential risk of physical injury to another." ⁵

18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court determined that the residual clause was unconstitutionally vague, denying due process of law in violation of the Fifth Amendment, because it "both denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson , 135 S.Ct. at 2557. The Court identified "[t]wo features of the residual clause [that] conspire to make it unconstitutionally vague." Id. It "leaves grave uncertainty about how to estimate the risk posed by a crime" while, at the same time, "leav[ing] uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id. at 2257–58. Johnson was made retroactive in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).

The Supreme Court’s decision in Beckles v. United States also merits our attention. ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). In Beckles , the Supreme Court considered a vagueness challenge to the residual clause of U.S.S.G. § 4B1.2 in the post- Booker Guidelines. Id. at 890. The Court determined that, because the post- Booker Guidelines "merely guide the district courts’ discretion, the Guidelines are not amenable to a vagueness challenge." Id. at 894. Prior to the creation of the Sentencing Guidelines regime, the Court explained, judges had virtually unfettered discretion at sentencing. Since that purely discretionary system was not unconstitutionally vague, it necessarily followed that neither was the Guidelines scheme of "guided discretion" unconstitutionally vague. Id.

Furthermore, according to the Court, the post- Booker Guidelines "do not implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement." Id. "As to notice, even perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range" because "the sentencing court retains discretion to impose [an] enhanced sentence." Id. And, as to preventing arbitrary enforcement, the post- Booker Guidelines do not leave judges "free to decide, without any legally fixed standards ... the sentences or sentencing range available." Id. at 894–95 (quoting Giaccio v. Pennsylvania , 382 U.S. 399, 402–03, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966) ). Instead, "court[s] rel[y] on the career-offender Guideline merely for advice in exercising its discretion to choose a sentence within [the] statutory limits." Id. at 895.

C.

In June 2016, within the one-year statute of limitations from the date of the Johnson decision, London filed a 28 U.S.C. § 2255 motion seeking to correct his 1996 sentence. He argued that this new limitation period included his claim; that is to say, Johnson ’s invalidation of the residual clause of the ACCA applied to negate the identically worded residual clause in the pre- Booker career offender Guideline provision under which he was sentenced. It followed, according to London, that his § 2255 motion was timely and his 1996 sentence must be vacated.

The district court did not agree and denied London’s motion as untimely. The court held that London did not assert a right newly recognized in Johnson ; instead, he sought to extend Johnson to the residual clause in the pre- Booker Sentencing Guidelines and, consequently, the limitation period had not been reset. Because the district court denied London’s motion on timeliness grounds, it did not expressly address the merits of London’s 28 U.S.C. § 2255 motion. London has timely appealed.⁶

II.

On appeal, London argues again that the right he "asserted" is a right "initially recognized" in Johnson and thus his motion is timely because it was filed within one-year after Johnson was decided. London characterizes the right recognized in Johnson as the "due process right not to have his sentence fixed by the unconstitutionally vague language of the residual clause." The government argues that the right recognized in Johnson is significantly narrower: it is only the right not to be sentenced under the residual clause in the ACCA.⁷

III.

We review "the district court’s factual findings relating to a § 2255 motion for clear error and its conclusions of law de novo ." United States v. Morgan , 845 F.3d 664, 666 (5th Cir. 2017) (quoting United States v. Olvera , 775 F.3d 726, 728–29 (5th Cir. 2015) ). London challenges the district court’s legal conclusion, that is, that London’s motion to correct his sentence is untimely, and consequently our review is de novo.

IV.

A.

It is undisputed that the Supreme Court, in Johnson , recognized a new rule of constitutional law. See Welch , 136 S.Ct. at 1264. The question posed by this appeal is whether London’s motion asserts the same right "initially recognized by the Supreme Court" in Johnson , thus rendering his motion timely under the one-year limitations period of § 2255(f)(3) applicable to newly recognized rights.⁸ Our review is limited in deciding this question. We are not specifically called upon to consider the merits of London’s constitutional claim. To be sure, § 2255(f)(3) instructs us to decide only the contours of the right the Supreme Court recognized in Johnson .

Nevertheless, to determine whether the Supreme Court initially recognized the asserted right, and thus whether the § 2255(f)(3) clock has been reset, we apply the same analysis used to determine if a case announces a "new rule" that may be asserted retroactively on collateral review. Morgan , 845 F.3d at 667–68 ; see Teague v. Lane , 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion of Connor, J.); see also Russo v. United States , 902 F.3d...