United States District Court, District of Columbia
D. BATES United States District Judge.
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
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
Carr's Conviction, Sentence, Appeal, and First §
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. §
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. Then, citing Carr's extensive criminal
history, the Court imposed the maximum sentence within that
range. Id. at 20:19-23, 21:12-20. The Court also
sentenced Carr to three years' supervised release and
ordered him to pay $15, 823 in restitution. Id. at
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.
Carr's Second § 2255 Motion
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,
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,
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].
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.
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,
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.
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.
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.
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.
motion raises several questions of significant importance.
Does Beckles bar vagueness challenges only to the
advisory Guidelines, or to the mandatory Guidelines as
well? 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?Does a defendant procedurally default a
Johnson claim by failing to raise it at sentencing
or on direct appeal? Does Johnson apply retroactively
to the Guidelines residual clause?
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 ...