United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
before the Court are Defendant Tarik Butler's 
Revised Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence, and Mr. Butler's 
Supplemental Motion to Vacate Judgment Under 28 U.S.C. §
2255. Upon a searching review of the parties'
submissions,  the relevant authorities, and the record
as a whole, the Court finds that Mr. Butler no longer
qualifies for a sentencing enhancement pursuant to the Armed
Career Criminal Act based on his prior criminal convictions
in light of the Supreme Court of the United States'
holding in Johnson v. United States, ___ U.S. ___,
135 S.Ct. 2551 (2015). Accordingly, the Court shall GRANT Mr.
Butler's  Revised Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence, and Mr.
Butler's  Supplemental Motion to Vacate Judgment
Under 28 U.S.C. § 2255, and set this matter for a
February 23, 2012, an indictment was filed charging Mr.
Butler with unlawful distribution of 28 grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii). Mr. Butler was arrested on February 28, 2012.
On June 25, 2012, an information was filed charging unlawful
possession of a firearm in violation of 18 U.S.C.
§§ 922(g) and 924(e)(1). On that same day, Mr.
Butler pled guilty to the sole count of the indictment,
unlawful distribution of 28 grams or more of cocaine base,
and the sole count of the information, unlawful possession of
a firearm, pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). As part of the plea agreement, Mr. Butler
acknowledged that “unlawful possession of a firearm
carries a penalty of imprisonment of not less than 15
years.” Plea Agmt. at 1. Further, as part of the terms
of the 11(c)(1)(C) plea, the parties agreed that a 180-month
(15-year) term of imprisonment was the appropriate sentence
which the Court accepted.
matter proceeded to sentencing on October 10, 2012. At that
time, a person convicted of a § 922(g) violation who
also had three prior convictions for a “violent
felony” or “serious drug offense” was
subject to a 15-year mandatory minimum pursuant to the Armed
Career Criminal Act (“ACCA”). 18 U.S.C. §
924(e)(1) (2012). Further, a “violent felony” was
defined as any crime punishable by a term of imprisonment
exceeding one year that: (1) “has as an element the
use, attempted use, or threatened use of physical force
against the person of another;” (2) “is burglary,
arson, or extortion, [or] involves use of explosives;”
or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
Id. § 924(e)(2)(B). Generally, these clauses
are known respectively as the “elements clause,
” the “enumerated clause, ” and
the “residual clause.” United States v.
Redrick, 841 F.3d 478, 480 & n.3 (D.C. Cir. 2016).
Further, at the time of sentencing, United States Sentencing
Guideline (“U.S.S.G.”) § 2K2.1(a)(2)
provided a sentencing enhancement for a defendant who had
“at least two felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G.
§ 2K2.1(a)(2) (2012). Further, U.S.S.G. § 4B1.2(a)
provided a sentencing enhancement for a person classified as
a Career Offender, meaning a person whose present conviction
was one for a “crime of violence” or
“controlled substance offense, ” and had two
prior felony convictions for such offenses. A “crime of
violence” was defined for both guideline provisions in
materially the same manner as “violent felony”
discussed above. See § 2K2.1(a)(2), comment.
n.1; U.S.S.G. § 4B1.2(a).
Court sentenced Mr. Butler to a term of imprisonment of 15
years (180 months), in accordance with the Rule 11(c)(1)(C)
plea agreement, on both counts followed by a term of
supervised release of 5 years (60 months). In imposing this
sentence, the Court found that Mr. Butler was subject to a
15-year mandatory minimum in light of his prior convictions.
Judg. in Cr. Case, Stmt. of Reasons at 1; Sent'g Hrg. Tr.
(Oct. 10, 2012), at 3:10-13, ECF No.  (“He also
pled to Count 1 of an Information, which was unlawful
possession of a firearm by a felon with three convictions.
And that has a statutory 15-year mandatory minimum to life
with a maximum fine of $250, 000.”). Specifically, Mr.
Butler had: a 1995 conviction for attempted distribution of
cocaine in the District of Columbia, PSR ¶ 41, ECF No,
; and two 2000 convictions for assault with a dangerous
weapon in the District of Columbia, id. ¶¶
44, 45. See Sent'g Hrg. Tr. (Oct. 10,
2012), at 9:1-15. As reflected in the Presentence
Investigation Report, Mr. Butler was subject to a mandatory
minimum term of imprisonment of 15 years pursuant to the
ACCA, 18 U.S.C. § 924(e)(1). PSR ¶ 107. Further,
the Court applied U.S.S.G. §§ 2K2.1(a)(2)
(increased base level offense based on two prior felony
convictions for a crime of violence or controlled substance
offense) and 4B1.4 (Armed Career Criminal enhancement) in
calculating Mr. Butler's sentencing range under the
U.S.S.G. Id. ¶¶ 27, 37; Sent'g Hrg.
Tr. (Oct. 10, 2012), at 5:3-6 (adopting the PSR as written).
Mr. Butler did not appeal his conviction or sentence.
26, 2015, the Supreme Court of the United States
(“Supreme Court”) in Johnson v. United
States, ___ U.S. ___, 135 S.Ct. 2551 (2015), held that
the residual clause of the ACCA, § 924(e)(2)(B)(ii), is
unconstitutionally vague. Id. at 2563. On April 18,
2016, the Supreme Court held in Welch v. United
States, ___ U.S. ___, 136 S.Ct. 1257 (2016), that its
decision in Johnson announced a substantive rule
that has a retroactive effect in cases on collateral review.
Id. at 1268. In light of these holdings, on June 2,
2016, Chief Judge Beryl A. Howell issued a Standing Order
“appoint[ing] the Office of the Federal Public Defender
for the District of Columbia to represent any defendant
previously determined to have been entitled to appointment of
counsel, or who is now indigent, to determine whether that
defendant may qualify to seek to vacate a conviction or to
seek a reduction of sentence or to present any motions to
vacate a conviction and/or for reduction of sentence in
accordance with Johnson and Welch.”
Pursuant to the procedures set out in that Standing Order,
Mr. Butler, through counsel, filed an abridged  Motion
Under 28 U.S.C. §§ 2255 to Vacate, Set Aside, or
Correct Sentence on June 24, 2016. The motion currently is
pending before this Court and further briefing on this motion
was made in accordance with Chief Judge Howell's Standing
Orders of June 2, 2016, and September 9, 2016, and subsequent
order of this Court. Mr. Butler argues that two of his prior
convictions no longer qualify as violent felonies under the
ACCA or crimes of violence under U.S.S.G. § 2K2.1(a)(2)
in light of the Supreme Court's holding in
Johnson and, as such, requests that the Court
correct his sentence. See generally Def.'s Supp.
respect specifically to Mr. Butler's arguments regarding
the applicability of certain provisions of the U.S.S.G., the
Court notes that the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”)
extended the reasoning of Johnson to the U.S.S.G.,
finding that the similarly worded residual clause of U.S.S.G.
§ 4B1.2(b) also is unconstitutional under the
void-for-vagueness doctrine. United States v.
Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016).
However, after briefing was complete on the instant motion,
the Supreme Court in Beckles v. United States, --
U.S. --, 137 S.Ct. 886 (2017), held that the residual clause
of U.S.S.G. § 4B1.2(a)(2) is not void for vagueness
because the U.S.S.G. are not subject to a vagueness
challenges under the due process clause. Id. at 890.
The Supreme Court noted that its holding did not render the
U.S.S.G. immune from constitutional scrutiny, including
scrutiny under the due process clause. Id. at
895-96. Rather, the majority opinion of the Supreme Court
held specifically that the void-for-vagueness doctrine was
inapplicable to the advisory U.S.S.G. Id. at 896.
The Supreme Court explained: “Unlike the ACCA, . . .
the advisory Guidelines do not fix the permissible range of
sentences. To the contrary, they merely guide the exercise of
a court's discretion in choosing an appropriate sentence
within the statutory range.” Id. at 892.
that Beckles was decided after the instant motion
was briefed, neither party has discussed the import, if any,
of the Supreme Court's decision in Beckles to
Mr. Butler's conviction and sentence. The Court has
determined that it need not reach this issue of the
applicability of the U.S.S.G. at this juncture. Rather, the
Court's analysis shall focus on whether Mr. Butler's
prior offenses constitute violent felonies under the ACCA.
For the reasons described below, the Court finds that Mr.
Butler was improperly sentenced to a mandatory minimum
sentence under the ACCA and, accordingly, must be
resentenced. As such, the Court shall allow the parties to
make any arguments regarding the applicability of the
U.S.S.G. in their memorandums in aid of sentencing prior to
28 U.S.C. § 2255, a prisoner in custody under sentence
of a federal court may move the sentencing court to vacate,
set aside, or correct its sentence if the prisoner believes
that the sentence was imposed “in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). The circumstances under which such a motion
will be granted, however, are limited in light of the premium
placed on the finality of judgments and the opportunities
prisoners have to raise most of their objections during trial
or on direct appeal. “[T]o obtain collateral relief a
prisoner must clear a significantly higher hurdle than would
exist on direct appeal.” United States v.
Frady, 456 U.S. 152, 166 (1982). Nonetheless,
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief, the court shall . . . grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto.” 28 U.S.C.
§ 2255(b). A prisoner may not raise a claim as part of a
collateral attack if that claim could have been raised on
direct appeal, unless he can demonstrate either: (1)
“cause” for his failure to do so and
“prejudice” as a result of the alleged violation,
or (2) “actual innocence” of the crime of which
he was convicted. Bousley v. United States, 523 U.S.
614, 622 (1998).
Government first argues that Mr. Butler's claims are not
properly before this Court for several reasons. Generally, a
criminal defendant may bring a § 2255 within one year of
the date upon which his or her judgment of conviction becomes
final or within one year of certain other events which
essentially reset the clock on the one-year period. See
generally 28 U.S.C. § 2255(f). In relevant part,
section 2255 provides that a motion brought under this
section may be brought within one year of “the date on
which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.” Id. § 2255(f)(3). It
is undisputed that the Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson (2015)”) declaring the
residual clause of the ACCA unconstitutional was a newly
recognized right made retroactively applicable to cases on
collateral review. Welch, 136 S.Ct. at 1268. It also
is undisputed that Mr. Butler timely raised any claims made
under Johnson (2015) pursuant to the procedures set
forth in this jurisdiction by Chief Judge Howell. However,
the Government asserts that Mr. Butler's claims
nevertheless fail because: (1) this Court did not actually
rely on the residual clause of the ACCA when sentencing Mr.
Butler; (2) Mr. Butler claims are untimely because his
argument does not rely on the Supreme Court's decision in
Johnson (2015), but rather on an earlier-decided
Supreme Court case; and (3) Mr. Butler's claim is
procedurally defaulted because he has not demonstrated cause
and prejudice for his failure to raise these claims on direct
appeal. The Court shall address each argument in turn.
This Court's Reliance on the Residual Clause at
the Government asserts that Mr. Butler has not demonstrated
that this Court actually relied on the residual clause of the
ACCA with respect to Mr. Butler's prior convictions.
While it is true that the record in this case does not
conclusively show that the Court relied on the residual
clause of the ACCA rather than the elements clause at
the time of sentencing, this does not bar Mr. Butler's
claim. First, the Court does not accept the Government's
premise that a criminal defendant must make an affirmative
showing that the sentencing court relied on the residual
clause rather than the alternative elements clause of the
ACCA in order to assert a claim under Johnson
(2015). Indeed, this Court accepts the proposition, as
recognized by other district courts in this jurisdiction and
courts of other jurisdictions, that it is sufficient for a
criminal defendant to show that a sentencing judge might have
relied on the residual clause in order to proceed. See
United States v. Wilson, No. CR 96-0157 (ESH), 2017 WL
1383644, at *3 (D.D.C. Apr. 18, 2017) (Huvelle, J.)
District Judge Paul L. Friedman recognized, to hold otherwise
would create an “absurd result.” United
States v. Booker, No. CR 04-0049 (PLF), 2017 WL 829094,
at *4 (D.D.C. Mar. 2, 2017). At the time of Mr. Butler's
sentencing, a court was not required to specify which clause
it was relying on to find that the particular offenses
qualified as violent felonies under the ACCA and U.S.S.G.
Id. at *3. Nor is it likely that a sentencing judge
would have seen the need to make such a specification several
years (in this case, approximately two and a half years)
before the Supreme Court declared the residual clause
unconstitutional. Further, prior convictions that did not
meet the requirements of the elements clause often satisfied
the residual clause. Id. As such, to impose the
restriction advanced by the Government, certain criminal
defendants would be barred from raising an otherwise
cognizable claim under Johnson (2015) because the
sentencing judge did not specify which clause she was relying
on at a time when that was not required and it could not have
been foreseen that such a specification was necessary. As
such, the Court accepts that Mr. Butler must show only that
this Court may have relied on the residual clause in order to
practical matter, it is clear from the record that the Court
imposed the 15-year term of imprisonment as a mandatory
minimum in light of the prior convictions in accepting the
Rule 11(c)(1)(C) plea agreement as to the sentence. As
discussed further below, the Court considered two of Mr.
Butler's prior offenses as “violent felonies”
under the ACCA. The Court did not specify in reaching this
determination whether it was relying on the elements clause
or the unconstitutional residual clause. As such, the Court
has determined this is a sufficient showing in order for Mr.
Butler's claims under Johnson (2015) to proceed.
Timeliness of Mr. ...