White v. United States of America

Filing 7

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge William P. Lynch re 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by James Aley White. Objections to PFRD due by 2/22/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

CV 16-658 WJ/WPL
CR 11-2428 WJ

JAMES ALEY WHITE,
Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
James White timely filed his Motion to Correct Sentence Under 28 U.S.C. § 2255,
pursuant to the Fifth Amendment and Johnson v. United States, 576 U.S. ---, 135 S. Ct. 2551
(2015), on the basis that his due process rights were violated because the Court used the
“residual clause” of U.S.S.G. § 4B1.2 to enhance White’s guidelines range. (CV Doc. 1; CR
Doc. 34.)1 The United States contends that the Court should stay these proceedings pending the
Supreme Court’s decision in Beckles v. United States (S. Ct. No. 15-8544), and that White is not
entitled to relief. (Doc. 37.) Being fully advised on these matters, I recommend that the Court
deny White’s motion.
BACKGROUND
On November 15, 2011, White pled guilty bank robbery in violation of 18 U.S.C.
§ 2113(a). (Doc. 34 at 1.) At sentencing on February 13, 2012, the Court adopted the presentence
report (“PSR”) and found that White was a career offender under the sentencing guidelines. (Id.)
The Court concluded that the instant crime—bank robbery—constituted a crime of violence and
1

All citations to “CV Doc.” refer to documents filed in the civil case, CV 16-658 WJ/WPL. All
citations to “CR Doc.” refer to documents filed in the criminal case, CR 11-2428 WJ. Documents filed in
both cases are cited by reference to the corresponding document in the criminal case.

that he had at least two prior convictions for crimes of violence or controlled substance offenses
pursuant to U.S.S.G. § 4B1.2(a). (Id. at 1-2.)
The PSR calculated White’s offense level as 29, with a criminal history category VI, and
a resulting guidelines range of 151 to 188 months. (Id. at 2.) White was classified as a career
offender under U.S.S.G. § 4B1.1 because he was at least eighteen years old at the time of the
instant offense, the offense was a crime of violence or a drug trafficking crime, and White had at
least two prior convictions for crimes of violence or drug trafficking crimes. White was
ultimately sentenced to 120 months’ of incarceration, pursuant to a Federal Rule of Criminal
Procedure 11(c)(1)(C) plea agreement.2 (Id. at 3.)
DISCUSSION
In Johnson v. United States, the Supreme Court held that the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) is unconstitutionally vague. 576 U.S. ---,
135 S. Ct. 2551, 2563 (2015). The Supreme Court announced that Johnson would apply
retroactively on collateral review in Welch v. United States, reasoning that Johnson announced a
substantive new rule. --- U.S. ---, ---, 136 S. Ct. 1257, 1264-65 (2016).
The residual clause in the ACCA is “virtually identical to the residual clause” in the
Guidelines that was used to enhance White’s guidelines range. United States v. Madrid, 805 F.3d
1204, 1210 (10th Cir. 2015). In Madrid, a case on direct appeal, the Tenth Circuit concluded that
use of the residual clause in U.S.S.G. § 4B1.2 to calculate and enhance sentencing guideline
ranges is unconstitutional because the clause is void for vagueness. Id. at 1211. At least one other
Court of Appeals came to the opposite conclusion with respect to the residual clause in U.S.S.G.
§ 4B1.2. The Eleventh Circuit, in United States v. Matchett, held that the definition of “crime of
2

White also waived his right to any collateral attack on the conviction or sentence, except on the
issue of counsel’s ineffective assistance. (Doc. 24 at 7.) However, the United States did not argue that
White waived his right to bring this motion, so I do not address the merits of such a claim.
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violence” in the Guidelines was not unconstitutionally vague in light of Johnson. 802 F.3d 1185,
1189, 1193 (11th Cir. 2015). The Supreme Court has not yet decided whether the residual clause
in the Guidelines is also unconstitutionally vague and, if so, whether that change announces a
new rule of substantive law that would apply retroactively. These issues are pending before the
Supreme Court in Beckles v. United States (S. Ct. No. 15-8544).
Notwithstanding, the United States argues that White is not entitled to be resentenced
because a decision invalidating the residual clause of the Guidelines would be procedural and not
retroactive pursuant to Teague v. Lane, 489 U.S. 288 (1989) (plurality). White contends that
Johnson applies substantively to the Guidelines and is retroactive in Guidelines cases.
Teague provides the “normal framework for determining whether a new rule applies to
cases on collateral review.” Welch, 136 S. Ct. at 1264. “[A]s a general matter, ‘new
constitutional rules of criminal procedure will not be applicable to those cases which have
become final before the new rules are announced.’” Id. (quoting Teague, 489 U.S. at 310). There
are two exceptions to this general rule: first, “new substantive rules generally apply
retroactively,” id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)) (alteration omitted)
(emphasis in original); and second “new ‘watershed rules of criminal procedure,’ which are
procedural rules ‘implicating the fundamental fairness and accuracy of the criminal
proceeding,’” id. (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)), generally apply
retroactively.
The question, then, is two-fold: first, whether Johnson applies to the Guidelines to
invalidate the residual clause of U.S.S.G. § 4B1.2, and second, whether Johnson’s applicability
to the Guidelines falls into either of the categories that have retroactive effect under Teague. The

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Tenth Circuit answered the first question in the affirmative in Madrid. The parties agree that
applying Johnson to the Guidelines announces a new rule.
So, is Johnson a new substantive rule as applied to the Guidelines? “A rule is substantive
rather than procedural if it alters the range of conduct or the class of persons that the law
punishes.” Schriro, 542 U.S. at 353. “This includes decisions that narrow the scope of a criminal
statute by interpreting its terms, as well as constitutional determinations that place particular
conduct or persons covered by the statute beyond the State’s power to punish.” Id. at 351-52. By
contrast, procedural rules “regulate only the manner of determining the defendant’s culpability.”
Id. at 353 (emphasis in original). Procedural rules alter “the range of permissible methods for
determining whether a defendant’s conduct is punishable.” Id. Procedural rules also do not create
a class of persons convicted of conduct that is not lawfully criminalized, “but merely raise the
possibility that someone convicted with use of the invalidated procedure might have been
acquitted otherwise.” Id. at 352.
Applying Johnson to the Guidelines does not “alter[] the range of conduct or the class of
persons that the law punishes.” Id. at 353. The Guidelines, unlike the ACCA, are advisory: they
do not and cannot alter the range of sentences allowed under the law. The ACCA, by contrast,
statutorily altered the authorized sentences: a felon found in possession of a firearm is subject to
a maximum term of incarceration of ten years, unless that person qualifies under the ACCA, in
which case they are subject to a mandatory minimum term of incarceration fifteen years. See 18
U.S.C. § 924(a)(2), (e). Therefore, Madrid and other cases applying Johnson to the Guidelines
are not substantive decisions.
Instead, applying Johnson to the Guidelines is a procedural decision: it alters “the range
of permissible methods a court might use to determine whether a defendant should be sentenced

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under [U.S.S.G. § 4B1.2].” Welch, 136 S. Ct. at 1265 (citing Schriro, 542 U.S. at 353). Thus,
applying Johnson to the Guidelines is a procedural decision and would not have retroactive
effect on collateral review under the first Teague prong.
Application to the Guidelines can only be retroactive if it would constitute “a watershed
rule[] of criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.” Saffle, 494 U.S. at 495 (quotation omitted). The Supreme Court often cites Gideon
v. Wainwright, 372 U.S. 335 (1963), “holding that a defendant has the right to be represented by
counsel in all criminal trials for serious offenses,” to illustrate the watershed exception. Id. The
Supreme Court has held that “district courts must begin their analysis with the Guidelines and
remain cognizant of them throughout the sentencing process,” and that failing to correctly
calculate the Guidelines range constitutes procedural error. Gall v. United States, 552 U.S. 38, 50
n.6 (2007).
While procedural error may be sufficient to show plain error and be reversible on direct
review, as in Madrid, that is not the case on collateral review. The Tenth Circuit’s decision
invalidating the residual clause of U.S.S.G. § 4B1.2 does not suggest that a prior, final
conviction in which the career offender guideline was used would run afoul of the ex post facto
clause, as was the case for increased guidelines ranges between the commission of the crime and
the time of sentencing in Peugh v. United States, --- U.S. ---, --- 133 S. Ct. 2072, 2082-86
(2013). Further, while a defendant is entitled to a correct Guidelines calculation as the starting
point for a court to craft the appropriate sentence, a subsequent change in Guidelines ranges does
not invalidate the prior sentence.
Courts have disagreed on whether Johnson applies retroactively to guidelines cases on
collateral review. In United States v. Ramirez, the court found that the impact of a career

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offender designation carried an impermissibly large risk “that the punishment exceeds what the
defendant would have received without the designation” and that this risk trumps the finality
concerns in Teague. --- F. Supp. 3d ---, ---, CRIMINAL ACTION NO. 10-10008-WGY, 2016
WL 3014646, at *9 (D. Mass. May 24, 2016). Thus, the court in Ramirez found that Johnson was
retroactively applicable to the Guidelines on collateral review. Id. Similarly in United States v.
Boone, the court found that Johnson as applied to the Guidelines is retroactively applicable on
collateral review and “is ‘substantive’ under the facts and circumstances of this case,” in which
Boone was classified as a career offender and his underlying convictions no longer qualified
after the invalidation of the residual clause in the Guidelines, and that classification rendered
Boone’s Guidelines range approximately five-times what it would have been without the
classification. 2:12-cr-162-12, 2016 WL 3057655, at *6-7 (W.D. Pa. May 31, 2016) (slip copy).
Conversely, the Eleventh Circuit denied an application to file a second or successive
habeas petition in In re Rivero because Johnson does not apply retroactively to the Guidelines.
Indeed, no circuit “has affirmed an order granting relief for a petitioner” on the basis of
Johnson’s retroactive applicability to the Guidelines. United States v. Homrich, No. 1:93-cr-16,
2016 WL 4035323, at *2 (W.D. Mich. July 28, 2016) (slip copy). In Saunders v. United States,
the court re-emphasized that Johnson does not apply to the Guidelines in the Eleventh Circuit.
CR609-042, 2016 WL 4007677, at *1 (S.D. Ga. July 26, 2016) (slip copy).
District courts in the Tenth Circuit have also found that Johnson does not apply
retroactively. For example, in United States v. Mulay, the Court concluded that “[t]he Johnson
rule is not substantive and does not afford the defendant relief on collateral review.” Nos. 0140033-01-SAC, 2017 WL 373382, at *6 (D. Kan. Jan. 26, 2017) (slip copy). In United States v.

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Miller, this Court likewise concluded that Johnson is not retroactively applicable. Civ. No. 160566-WJ-WPL, Doc. 8 (D.N.M. Sept. 23, 2016) (unpublished).
While the matter is clearly unsettled, it seems likely that the Supreme Court will hold the
residual clause in the Guidelines to be unconstitutionally vague, find that ruling to announce a
new procedural rule, and deny retroactive applicability on collateral review. Rather than leave
White in limbo pending a decision in Beckles, I recommend that the Court conclude that the
residual clause in the Guidelines is unconstitutionally vague, but that the new rule is procedural
and not entitled to retroactive effect under Teague.
CONCLUSION
For the reasons described herein, I recommend that the Court deny White’s motion.
Because I make this recommendation without reaching the merits of whether White’s prior
convictions could continue to sustain application of the career offender guideline even if Johnson
applies retroactively to the Guidelines, I further recommend that the Court grant a certificate of
appealability pursuant to 28 U.S.C. § 2253(c) and affirmatively encourage White to appeal this
decision or file a motion for reconsideration if the Supreme Court, in Beckles, holds that Johnson
is retroactively applicable in Guidelines cases.

THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party
wants to have appellate review of the Proposed Findings and Recommended Disposition. If
no objections are filed, no appellate review will be allowed.

______________________________
WILLIAM P. LYNCH
A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.
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UNITED STATES MAGISTRATE JUDGE

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.
8