In re: Antonio Patrick

Filing

OPINION and JUDGMENT filed: Patrick s motion to file a second or successive petition is GRANTED, and the case is TRANSFERRED to the United States District Court for the Western District of Tennessee to be held in abeyance pending the Supreme Court s decision in Beckles. IT IS FURTHER ORDERED that Patrick s motion to expedite [5517765-2] is DENIED AS MOOT. Decision for publication. R. Guy Cole, Jr., Chief Judge; Eugene E. Siler, Jr., and Jane Branstetter Stranch (AUTHORING), Circuit Judges. *NDA for correction of judgment (motion for second or successive / not appeal)--[Edited 08/12/2016 by CL]

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0193p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re: ANTONIO D. PATRICK,
Movant.

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No. 16-5353

On Motion to Authorize the Filing of a Second or
Successive Application for Habeas Corpus Relief.
Nos. 2:02-cr-20074—S. Thomas Anderson, District Judge;
2:04-cv-02970—Samuel H. Mays, Jr., District Judge.
Decided and Filed: August 12, 2016
Before: COLE, Chief Judge; SILER and STRANCH, Circuit Judges.
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COUNSEL
ON MOTION AND REPLY: Ross A. Sampson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Movant. ON RESPONSE: Kasey A. Weiland,
UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Respondent.
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OPINION
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STRANCH, Circuit Judge. Antonio D. Patrick, a federal prisoner, moves for an order
authorizing the district court to consider a second or successive motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). For the
reasons that follow, we GRANT authorization to file a second or successive § 2255 petition.
I. BACKGROUND
In 2002, Patrick pleaded guilty to possession with intent to distribute and distribution of
cocaine and cocaine base. The district court determined that he qualified as a career offender

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under the then-mandatory Guidelines based on his prior Tennessee convictions for a controlled
substance offense, reckless aggravated assault, and evading arrest, and it sentenced him to
262 months’ imprisonment. The district court denied Patrick’s first § 2255 motion, and this
court denied his application for a certificate of appealability. In 2010, Patrick filed a 28 U.S.C.
§ 2241 petition, arguing that his conviction for reckless aggravated assault no longer qualified as
a crime of violence under Begay v. United States, 553 U.S. 137 (2008), and our decision in
United States v. Baker, 559 F.3d 443 (6th Cir. 2009). The district court denied the petition, and
we affirmed. Patrick now seeks permission to file a second or successive § 2255 petition.
II. LEGAL STANDARD
We may authorize the filing of a second or successive § 2255 motion only when the
applicant makes a prima facie showing that his proposed claim relies on “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” See 28 U.S.C. § 2255(h)(2). “A prima facie showing, in this context,
simply requires that the applicant make a showing of possible merit sufficient to ‘warrant a fuller
exploration by the district court.’” In re Watkins, 810 F.3d 375, 379 (6th Cir. 2015) (quoting In
re Lott, 366 F.3d 431, 432–33 (6th Cir. 2004)).
III. ANALYSIS
In Johnson v. United States, the Supreme Court invalidated the residual clause of the
Armed Career Criminal Act (ACCA) as unconstitutionally vague under the Due Process Clause
of the Fifth Amendment. 135 S. Ct. 2551, 2563 (2015). Under the ACCA, a defendant who “has
three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony’” is subject to a
“prison term [of] a minimum of 15 years and a maximum of life.” Id. at 2555 (quoting 18 U.S.C.
§ 924(e)(1)). The ACCA’s now-invalidated residual clause defined “violent felony” as including
any crime punishable by more than one year in prison and that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
Applying the void-for-vagueness doctrine, the Supreme Court concluded that the ACCA’s
residual clause failed to provide “fair notice to defendants” and “invite[d] arbitrary enforcement

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by judges,” denying due process of law to a defendant whose sentence is increased under the
clause. Johnson, 135 S. Ct. at 2557.
Relying on Johnson’s invalidation of the ACCA’s residual clause, Patrick asserts that he
is entitled to resentencing because he was designated a career offender based on an identically
worded and interpreted residual clause in the United States Sentencing Guidelines. See United
States Sentencing Commission, Guidelines Manual, § 4B1.2(a)(2). We have determined, on
direct review, that Johnson compels invalidation of the Guidelines’ residual clause as
unconstitutionally vague. United States v. Pawlak, 822 F.3d 902, 903 (6th Cir. 2016). And the
Supreme Court has held that Johnson announced a new, “substantive rule that has retroactive
effect in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1268 (2016); see
also In re Watkins, 810 F.3d at 384. The Government agrees, moreover, that two of the predicate
offenses for Patrick’s career offender designation—reckless aggravated assault and evading
arrest—were counted under the residual clause of the Guidelines and would no longer qualify as
crimes of violence if he had been sentenced post-Johnson.
The Government argues, however, that Patrick’s motion should be denied because, as
applied to the Guidelines, the rule announced in Johnson is procedural, rather than substantive,
and thus does not apply retroactively on collateral review. New procedural rules, unlike new
substantive rules, generally do not apply retroactively unless they qualify as a “watershed rule[]
of criminal procedure” by “implicating the fundamental fairness and accuracy of the criminal
proceeding.” See Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004) (citation omitted); see also
Teague v. Lane, 489 U.S. 288, 310–12 (1989). “A rule is substantive rather than procedural if it
alters the range of conduct or the class of persons that the law punishes” by, for example,
“narrow[ing] the scope of a criminal statute by interpreting its terms” or “plac[ing] particular
conduct or persons covered by the statute beyond the State’s power to punish.” Welch, 136 S.
Ct. at 1264–65 (quoting Schriro, 542 U.S. at 351–52, 353). Procedural rules, by contrast,
“regulate only the manner of determining the defendant’s culpability” and alter “the range of
permissible methods for determining whether a defendant’s conduct is punishable. They do not
produce a class of persons convicted of conduct the law does not make criminal, but merely raise

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the possibility that someone convicted with use of the invalidated procedure might have been
acquitted otherwise.” Id. at 1265 (citation omitted) (quoting Schriro, 542 U.S. at 352–53).
Many of the Government’s claims are answered by the Supreme Court in Welch and our
subsequent published opinion in Pawlak. In Welch, the Supreme Court held that, “[u]nder this
framework, the rule announced in Johnson is substantive” and “not a procedural decision.” Id.
Johnson is substantive, the Court explained, because it “changed the substantive reach of [the
ACCA], altering the range of conduct or the class of persons that the [Act] punishes”:
Before Johnson, the Act applied to any person who possessed a firearm after three
violent felony convictions, even if one or more of those convictions fell under
only the residual clause. An offender in that situation faced 15 years to life in
prison. After Johnson, the same person engaging in the same conduct is no longer
subject to the Act and faces at most 10 years in prison. The residual clause is
invalid under Johnson, so it can no longer mandate or authorize any sentence.
Johnson establishes, in other words, that even the use of impeccable factfinding
procedures could not legitimate a sentence based on that clause.
Id. (second alteration in original) (citations and quotation marks omitted). And Johnson is not
procedural because it “had nothing to do with the range of permissible methods a court might use
to determine whether a defendant should be sentenced under” the ACCA by, for example,
“allocat[ing] decisionmaking authority between judge and jury” or “regulat[ing] the evidence
that the court could consider in making its decision.” Id. (citations and quotation marks omitted).
Just after Welch was issued, we held in Pawlak that Johnson compels invalidation of the
Guidelines’ residual clause. 822 F.3d at 903. Because the two residual clauses are identical, we
noted, “the only reason Johnson would not compel the same result [for the Guidelines] is if the
Guidelines were immune from vagueness challenges.” Id. at 905. Thoroughly examining
Supreme Court precedent, we found that “the Guidelines, whether mandatory or advisory, have
always been subject to some constitutional limitations,” and thus there is “no legal basis for
concluding that the Guidelines are uniquely immune to vagueness challenges.” Id. at 907
(emphasis added). And given the function and substantial effect of the Guidelines, particularly
“the Supreme Court’s emphasis on the role of the Guidelines as the legal framework of
sentencing, it would be incongruous for us to conclude that the constitutional concerns of notice
and arbitrary enforcement” found in Johnson are not triggered by the Guidelines. Id. Therefore,

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we concluded, “Johnson’s rationale applies with equal force to the Guidelines’ residual clause.”
Id.
Patrick argues that his entitlement to relief under § 2255 is grounded in both Johnson and
Welch.

Other circuits have been faced with the same underlying question here:

whether

Johnson’s application to the Guidelines is retroactive. The Fourth Circuit, with the benefit of the
Supreme Court’s guidance in Welch, held that Johnson is retroactive as applied to the
Guidelines. See In re Hubbard, __F.3d__, No. 15-276, 2016 WL 3181417 (4th Cir. June 8,
2016). Many other circuit panels, from the Second, Fifth, Seventh, Eighth, Ninth, Tenth, and
D.C. Circuits, have authorized a second or successive petition, finding a prima facie showing that
Johnson applies retroactively to the Guidelines. In re McCall, __F.3d__, No. 16-12972-J, 2016
WL 3382006, at *1 n.2 (11th Cir. June 17, 2016) (Martin, J., concurring) (compiling cases); see,
e.g., In re Encinias, 821 F.3d 1224 (10th Cir. 2016); Blow v. United States, __F.3d__, No. 161530, 2016 WL 3769712 (2d Cir. July 14, 2016).
In the instant case, as in Hubbard, the Government asserts that Johnson’s application to
the Guidelines is procedural because, unlike application to the ACCA, “(1) it does not change the
range of legally permissible outcomes (which are limited by statutory minimums and
maximums) and (2) errors in calculating a defendant’s advisory guidelines range have been
characterized as procedural by the Supreme Court.” Hubbard, 2016 WL 3181417, at *6. We are
compelled by controlling precedent in Welch and Pawlak to agree with the Fourth Circuit that
“[n]either argument is convincing.” Id. Individual circuit panels finding otherwise rely on their
own precedent and are at odds with the reasoning and conclusion of our binding precedent,
Pawlak. See, e.g., In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (also doubting whether Johnson
applies to the Guidelines at all, in part based on the Guidelines’ advisory nature); In re Arnick,
__F.3d__, No. 16-10328, 2016 WL 3383487 (5th Cir. June 17, 2016) (same); Donnell v. United
States, __F.3d__, No. 15-2581, 2016 WL 3383831 (8th Cir. June 20, 2016).
As Hubbard accurately reasons, “Welch declared unequivocally that Johnson was ‘a
substantive decision and so has retroactive effect under Teague in cases on collateral review.’”
Hubbard, 2016 WL 3181417, at *6 (quoting Welch, 136 S. Ct. at 1265). Both here and in
Hubbard, the Government cites no support for the proposition that the same rule may be

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substantive and retroactive in one context but procedural and not retroactive in another. Id.
Moreover, Hubbard explains that retroactive rules “must be applied in all future trials, all cases
pending on direct review, and all federal habeas corpus proceedings.” Id. (quoting Danforth v.
Minnesota, 552 U.S. 264, 266 (2008)).
The Supreme Court’s rationale in Welch for finding Johnson retroactive applies equally
to the Guidelines. Johnson held a statutory provision of the ACCA unconstitutional, and now
that provision may not be used to enhance a sentence. Striking the Guidelines’ residual clause,
just like striking the ACCA’s residual clause, would “change[] the substantive reach” of the
Guidelines by “altering the range of conduct or the class of persons that the [Guidelines]
punish[].” Welch, 136 S. Ct. at 1265 (quotation marks omitted) (quoting Schriro, 542 U.S. at
353). As applied to the Guidelines, Johnson substantively changes the conduct by which federal
courts may enhance the sentence of a defendant.

“[S]ome crimes will no longer fit the

Sentencing Guidelines’ definition of a crime of violence,” explains Hubbard, “and will therefore
be incapable of resulting in a career-offender sentencing enhancement.” 2016 WL 3181417, at
*7. Although a defendant “may still be subject to the same statutory range of punishments”
through provisions of the Guidelines other than the residual clause, “even the use of impeccable
factfinding procedures could not legitimate a sentence based on that clause.” Id. (quotation
marks omitted) (quoting Welch, 136 S. Ct. at 1265); cf. In re Watkins, 810 F.3d at 383 (finding
irrelevant to retroactivity analysis Congress’s discretion to amend the ACCA to encompass
predicate offenses that previously only fell within the residual clause and instead focusing on fact
that Johnson prohibits sentencing enhancement under the ACCA’s residual clause). “It follows
that Johnson is a substantive decision.” Welch, 136 S. Ct. at 1265.
Employing the same logic, “Johnson is not a procedural decision” as applied to the
Guidelines.

Hubbard, 2016 WL 3181417, at *7 (quoting Welch, 136 S. Ct. at 1265).

Invalidation of the Guidelines’ residual clause has “nothing to do with the range of permissible
methods a court might use to determine whether a defendant should be sentenced” as a career
offender, and Johnson’s application to the Guidelines does not “allocate decisionmaking
authority between judge and jury, or regulate the evidence that the court could consider in
making its decision.” Id. (quoting Welch, 136 S. Ct. at 1265).

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With regard to the Government’s argument that the Supreme Court has characterized the
Guidelines’ as procedural, the Court also has described the Guidelines as “the substantive
‘formula’ used to calculate the applicable sentencing range.” Peugh v. United States, 133 S. Ct.
2072, 2088 (2013) (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 505 (1995)). The
Government additionally emphasizes that the Guidelines are discretionary. At the time Patrick
was sentenced, however, United States v. Booker, 543 U.S. 220 (2005), had not yet been decided
and the Guidelines were mandatory. Moreover, while a sentencing court does retain some
discretion post-Booker, we must follow Pawlak in concluding that the discretionary nature of the
Guidelines is inconsequential because they nonetheless are “the lodestone of sentencing” and
have “considerable influence.” 822 F.3d at 905 (quoting Peugh, 133 S. Ct. at 2084). District
courts have no discretion to forgo calculation and consideration of a defendant’s Guidelines’
range before imposing a sentence, as they “must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing process” to avoid reversal. Id. (quoting
Peugh, 133 S. Ct. at 2083); see 18 U.S.C. §3553(a)(4). “Even if the sentencing judge sees a
reason to vary from the Guidelines, ‘if the judge uses the sentencing range as the beginning point
to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the
sentence.’” Id. at 906 (quoting Peugh, 133 S. Ct. at 2083). The Guidelines accordingly have a
“real and pervasive” and only “quasi-advisory” effect on sentencing, “bringing them closer to a
statute which fixes sentences than a sort of suggested opinion.” Id. (quoting Molina-Martinez v.
United States, 136 S. Ct. 1338, 1345–46 (2016); United States v. Litzy, 137 F. Supp. 3d 920, 932
(S.D. W. Va. 2015)). As the Supreme Court recently stated, “when a Guidelines range moves up
or down, offenders’ sentences move with it.” Peugh, 133 S. Ct. at 2084. Thus, “that the
Guidelines are not mandatory is a distinction without a difference.” Pawlak, 822 F.3d at 907.
IV. CONCLUSION
The immediate issue here is whether Patrick has made a prima facie showing authorizing
a second or successive § 2255 motion. For the reasons stated above, we hold that Patrick’s
arguments easily satisfy that standard. There is one important caveat. The decision before us is
framed by the Supreme Court’s recent, second grant of certiorari in an Eleventh Circuit panel
decision that found Johnson inapplicable to the Sentencing Guidelines. See Beckles v. United

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States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016) (Mem.). That decision will
presumably resolve the questions related to retroactive application of a new rule of constitutional
law regarding the Guidelines—whether created by Johnson or by Beckles itself—to cases such as
Patrick’s. In light of the pending resolution in Beckles, another panel of this court held that the
most appropriate procedure is to transfer these cases to the district court with instructions to hold
them in abeyance pending the Supreme Court’s decision. See In re Embry, __F.3d__, No. 165447, 2016 WL 4056056, at *4 (6th Cir. July 29, 2016).
Accordingly, we GRANT Patrick’s motion to file a second or successive § 2255 petition
and TRANSFER the case to the United States District Court for Western District of Tennessee
to be held in abeyance pending the Supreme Court’s decision in Beckles. Patrick’s motion to
expedite is denied as moot.