United States District Court, District of Columbia
D. Bates United States District Judge.
Small's motion pursuant to 28 U.S.C. § 2255
challenges his designation as a career offender under the
residual clause of § 4B1.2 in the 2010 U.S. Sentencing
Guidelines Manual (“U.S.S.G.”). Mot. under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(“Defs.' Mot.”) [ECF No. 93]; Suppl. Mot. to
Vacate J. under 28 U.S.C. § 2255 (“Suppl.
Mot.”) [ECF No. 105]. Small's career offender
enhancement was based in part on a prior conviction for D.C.
attempted robbery, which Small asserts is not a qualifying
offense for designation as a career offender because it is
not a “crime of violence” under that provision.
For the reasons that follow, Small's motion must be
dismissed as untimely under 28 U.S.C. § 2255(f).
served as a getaway car driver in a 2010 bank robbery. Suppl.
Mot. at 5. Small was sentenced to 108 months'
incarceration for bank robbery and aiding and abetting in
violation of 18 U.S.C. §§ 2113(a) and 2. J. in a
Crim. Case [ECF No. 65] at 1-2.
was sentenced as a career offender under the 2010 U.S.
Sentencing Guidelines. Suppl. Mot. at 2. The career offender
provision of the U.S. Sentencing Guidelines directs a
sentencing court to increase the base offense level of a
defendant convicted of a felony crime of violence or
controlled substance offense if the court finds that the
defendant has two or more prior felony convictions for crimes
of violence, controlled substance offenses, or a combination
of both. U.S.S.G. § 4B1.1(a) (U.S. Sentencing Comm'n
2010). At the time of Small's sentencing, a prior offense
qualified as a crime of violence if it:
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another [the
“force clause”], or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives [the “enumerated offense
clause”], or otherwise involves conduct that presents a
serious potential risk of physical injury to another [the
Id. § 4B1.2(a). Small's challenge here
focuses on the application of the provision's residual
career offender enhancement was based on two prior
convictions: a 1999 Maryland robbery and a 1999 District of
Columbia attempted robbery. Suppl. Mot. at 6. Designation as
a career offender under the career offender provision's
residual clause raised Small's offense level from 21 to
and his criminal history category from IV to VI. As a result,
Small's advisory guidelines range increased from 46-57
months to 151-188 months. Suppl. Mot. at 2. With respect to
the two offenses that qualified Small as a career offender,
the Court noted at sentencing that these offenses were
essentially “determinative with respect to
sentencing” because they made him “a career
offender under the sentencing guidelines, which has a huge
impact in this case.” Tr. of Sentencing [ECF No. 94] at
26:8-18. Nevertheless, the Court varied downwards to 108
months based on its conclusion that although a substantial
period of incarceration was warranted, the Guidelines
calculation overstated the significance of Small's
criminal history (and, as a consequence, his career offender
status). See id. at 30:5-19 (noting that the
recommended sentence of “151 months or more would be
more than is necessary to satisfy the various criminal
justice interests reflected in § 3553(a)” but that
a “sentence down in the 60-month range” would
“ignor[e] the career offender provisions”).
years following Small's conviction and sentencing, the
residual clause of the career offender guideline has been
challenged and discredited-but not invalidated. In 2015, the
Supreme Court examined an identically worded residual clause
in the career offender provision of the Armed Career Criminal
Act (the “ACCA”) and concluded that the residual
clause in that statute was unconstitutionally vague.
Johnson v. United States, 135 S.Ct. 2551
(2015). Shortly thereafter, the U.S. Sentencing
Commission made the decision “as a matter of
policy” to remove the residual clause from the
Guidelines, explaining that “the residual clause . . .
implicates many of the same concerns cited by the Supreme
Court in Johnson.” U.S.S.G., Suppl. to App. C,
amend. 798 at 121 (U.S. Sentencing Comm'n 2018).
March 2017, the Supreme Court issued its opinion in
Beckles v. United States, in which it declined to
extend its reasoning in Johnson to the residual
clause of the career offender guideline, observing that
“the advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause, ” and hence
holding that the residual clause of the career offender
guideline was not void for vagueness. 137 S.Ct. 886, 890,
894-95 (2017). Beckles left Small and many others
who had received enhanced sentences under the Guidelines'
residual clause in limbo. The precise language used in the
residual clause of the career offender guideline had been
held in Johnson to be “so shapeless a
provision” that it was a “failed
enterprise” for a court “to derive meaning”
from it. Johnson, 135 S.Ct. at 2560 (discussing
identical language in ACCA residual clause). Nevertheless,
the Supreme Court in Beckles scrutinized the
advisory Guidelines' residual clause and upheld its
constitutionality, at least as to the challenge on vagueness
grounds, because of the discretion built into the advisory
Guidelines regime. Beckles, 137 S.Ct. at 894-95. As
the law stands today, courts are unclear as to how to
interpret the language of this residual clause, but the
residual clause of the career offender guideline is not void
the holding in Beckles, Small elected to proceed
with his § 2255 motion. The government has opposed.
United States' Opp'n to Def.'s Mot. and Suppl.
Mot. (“Opp'n”) [ECF No. 113]. In the
meantime, Small completed his term of imprisonment on May 7,
2019, and began serving a term of supervised release. The
Court heard argument on the § 2255 motion on May 17,
2019, and both sides filed supplemental briefs shortly
thereafter. United States' Post-Hr'g Suppl. to
Opp'n [ECF No. 135]; Post-Hr'g Mem. in Supp. of
Def.'s Mot. & Suppl. Mot. [ECF No. 136]. The Court
has carefully considered the positions and filings of all
parties, and this case is now ripe for resolution.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) authorizes federal prisoners to move to
vacate, set aside, or correct a sentence “upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, . . . or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). A prisoner's ability to bring such a
motion is subject to a strict one-year time limitation
triggered by, as relevant to Small's motion,
either “the date on which the judgment of conviction
becomes final” or “the date on which the right
asserted was initially recognized by ...