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United States v. Carr

United States District Court, District of Columbia

July 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN ERIC CARR, Defendant.

          MEMORANDUM OPINION

          JOHN D. BATES United States District Judge.

         In 2003, defendant Brian Carr was sentenced to 262 months' imprisonment following his conviction on five counts of bank robbery in violation of 18 U.S.C. § 2113(a). Carr's sentence was based in part on his status as a career offender under the then-mandatory U.S. Sentencing Guidelines (the “Guidelines”), which provide for an enhanced sentence if, among other things, the defendant has at least two prior felony convictions for a “crime of violence.” U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 2001) [hereinafter “U.S.S.G.”].

         Carr now moves to vacate, set aside, or correct his sentence, see 28 U.S.C. § 2255, arguing that the portion of the Guidelines that defines the term “crime of violence” to include offenses that “involve[] conduct that presents a serious potential risk of physical injury to another, ” U.S.S.G. § 4B1.2(a)(2), is unconstitutionally vague under Johnson v. United States, 135 S.Ct. 2551 (2015). But the term “crime of violence” also encompasses offenses that “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another, ” U.S.S.G. § 4B1.2(a)(1), and Carr's prior federal bank robbery convictions satisfy this alternative definition. Carr was therefore properly sentenced as a career offender, and his motion will be denied.

         BACKGROUND

         A. Carr's Conviction, Sentence, Appeal, and First § 2255 Motion

         Carr was arrested in 2002 after police watched him rob a bank in downtown Washington, D.C. See Feb. 21, 2006 Mem. Op. [ECF No. 56] at 1. He was later connected to a string of bank robberies in the area, and a jury convicted him on five counts of bank robbery in violation of 18 U.S.C. § 2113(a). Id. at 2. At sentencing, the Court applied the career-offender provisions of the then-mandatory Guidelines, which provide a sentencing enhancement for an adult defendant who is convicted of “a crime of violence” and who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1.[1]

         Relying on Carr's two prior federal bank robbery convictions, the Court determined that Carr was a career offender and calculated his Guidelines sentencing range to be 210 to 262 months. See Tr. of Sentencing [ECF No. 60] at 6:8-16, 7:4-6.[2] Then, citing Carr's extensive criminal history, the Court imposed the maximum sentence within that range. Id. at 20:19-23, 21:12-20.[3] The Court also sentenced Carr to three years' supervised release and ordered him to pay $15, 823 in restitution. Id. at 22:21-23:10, 24:4-8.

         Carr timely appealed his conviction and sentence, and the D.C. Circuit affirmed. See United States v. Carr, 373 F.3d 1350, 1355 (D.C. Cir. 2004). Carr then filed his first motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See Pet. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [ECF No. 54]. The Court denied Carr's motion in 2006, see Feb. 21, 2006 Mem. Op. at 14, and nothing was filed in his case for the next ten years.

         B. Carr's Second § 2255 Motion

         On June 26, 2015, after Carr had served more than half of his 262-month sentence, the Supreme Court held that the residual clause of the Armed Career Criminal Act (the “ACCA”)-a statutory provision materially identical to the residual clause of the career-offender Guidelines- was unconstitutionally vague. See Johnson, 135 S.Ct. at 2563; see also 18 U.S.C. § 924(e)(2)(B)(ii) (defining the term “violent felony, ” for purposes of the ACCA's fifteen-year mandatory minimum sentence, as “any crime punishable by imprisonment for a term exceeding one year that, ” in relevant part, “involves conduct that presents a serious potential risk of physical injury to another”). Less than a year later, the Supreme Court held that Johnson applies retroactively on postconviction review. See Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

         In June 2016, following the Supreme Court's decision in Welch, Chief Judge Beryl A. Howell issued a standing order appointing counsel for indigent defendants in this district whose sentences might be eligible for reduction under Johnson. See Standing Order at 1, http://www.dcd.uscourts.gov/sites/dcd/files/1853001.pdf. Recognizing that any claim for postconviction relief would need to be filed within one year of the date that Johnson was decided, see 28 U.S.C. § 2255(f)(3), Chief Judge Howell's order also authorized defendants to file by June 26, 2016 “abridged” § 2255 motions-essentially, placeholders-that would need to be supplemented with full briefing by October 26, 2016. See Standing Order at 2. Carr then filed an emergency motion for leave to file a second § 2255 motion challenging his sentence under Johnson. See Emergency Mot. for Authorization to File a Second or Successive Mot. Under 28 U.S.C. § 2255 [ECF No. 62]. The D.C. Circuit granted Carr's motion and directed this Court to treat it as an abridged § 2255 motion under Chief Judge Howell's order. See Order [ECF No. 61].

         Later that month, the Supreme Court granted certiorari in Beckles v. United States, a case that presented the question whether, in light of Johnson's invalidation of the ACCA's residual clause, the “identically worded” residual clause in § 4B1.2(a)(2) of the Guidelines was also unconstitutionally vague. 137 S.Ct. 886, 890 (2017). Thereafter, Chief Judge Howell issued a second standing order staying the October 26, 2016 deadline for those supplemental petitions (like Carr's) that challenged only the residual clause of the career-offender Guidelines. See Standing Order No. 2, http://www.dcd.uscourts.gov/sites/dcd/files/JohnsonUnitedStatesNo2.pdf.[4]

         The Supreme Court decided Beckles in March 2017, holding that the advisory Guidelines are not subject to vagueness challenges because they “merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range” and “do not fix the permissible range of sentences.” 137 S.Ct. at 892. Chief Judge Howell then issued another standing order directing those defendants whose deadlines had previously been stayed pending Beckles to file their supplemental § 2255 motions, if any, by May 26, 2017. See Standing Order No. 4, http://www.dcd.uscourts.gov/sites/dcd/files/JohnsonUnitedStatesNo4.pdf. Pursuant to Chief Judge Howell's order, Carr timely filed his supplemental § 2255 motion in May 2017. Carr's motion is now fully briefed and ripe for decision.

         LEGAL STANDARD

         If a federal prisoner believes that his sentence was “imposed in violation of the Constitution or laws of the United States, ” he may move the sentencing court to vacate, set aside or correct his sentence. 28 U.S.C. § 2255(a). Such a motion must be filed within one year of the date on which the prisoner's conviction became final, or else (as relevant here) 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)(1), (3). Moreover, although a prisoner may file one § 2255 motion as a matter of right, second or successive motions must be certified by the appropriate court of appeals “to contain”-again, as relevant here-“a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. § 2255(h)(2).

         DISCUSSION

         Carr claims that he is entitled to a reduced sentence because his current sentence was enhanced pursuant to the unconstitutionally vague residual clause of the career-offender Guidelines. His argument proceeds in several steps. First, he asserts that although Beckles forecloses a vagueness challenge against the advisory Guidelines, he was sentenced in 2003, before the Guidelines were rendered advisory by United States v. Booker, 543 U.S. 220 (2005), so Beckles does not apply. See Def.'s Mot. at 11-12. Second, he claims that under Beckles's reasoning, the mandatory Guidelines are subject to a vagueness challenge, and that under Johnson and United States v. Sheffield, 832 F.3d 296 (D.C. Cir. 2016)-a circuit precedent that, in Carr's view, partially survived Beckles-the Guidelines residual clause is unconstitutionally vague. See Def.'s Mot. at 11-16. Finally, Carr maintains that he was improperly sentenced because no other provision of the Guidelines supports his designation as a career offender. See id. at 19-35.

         The government raises several arguments in response. First, the government claims that Carr's motion is untimely. See Gov't's Opp'n at 10-16. According to the government, the only right newly recognized in Johnson was the right not to be sentenced pursuant to the ACCA's unconstitutionally vague residual clause; thus, because Carr asserts a different right here-the right not to be sentenced under the Guidelines residual clause-Johnson did not trigger the running of a new one-year limitations period under § 2255(f)(3). Similarly, the government asserts that the instant § 2255 motion-Carr's second-is barred because it does not “contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. § 2255(h)(2); see Gov't's Opp'n at 17-20. The government also claims that Carr procedurally defaulted his vagueness challenge, see Gov't's Opp'n at 20-21; that the application of Johnson to § 4B1.2(a) would not be retroactive on postconviction review under Teague v. Lane, 489 U.S. 288 (1989), see Gov't's Opp'n at 21-27; that the mandatory Guidelines are not subject to vagueness challenges, see id. at 27-31; and, finally, that Carr's prior federal bank robbery convictions qualify as crimes of violence under the elements clause of the career-offender Guidelines, § 4B1.2(a)(1); see id. at 31-35.

         Carr's motion raises several questions of significant importance. Does Beckles bar vagueness challenges only to the advisory Guidelines, or to the mandatory Guidelines as well?[5] Was Johnson's “newly recognized” right, 28 U.S.C. § 2255(f)(3)-or, equivalently, its “new rule of constitutional law, ” id. § 2255(h)(2)-a narrow right not to be sentenced under the ACCA's residual clause, or a broader right not be sentenced under any unconstitutionally vague provision?[6]Does a defendant procedurally default a Johnson claim by failing to raise it at sentencing or on direct appeal?[7] Does Johnson apply retroactively to the Guidelines residual clause?[8]

         The Court need not reach these questions to resolve Carr's motion, however. Even assuming that Carr's vagueness challenge to the Guidelines residual clause was timely, properly raised, and otherwise meritorious, Carr would not be entitled to the relief he seeks because his prior federal bank robbery convictions qualify as crimes of violence under the elements clause of the career-offender Guidelines-§ 4B1.2(a)(1). Cf. Cross, 892 F.3d at 291 (holding that the Guidelines residual clause was unconstitutional as applied to ...


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