Brawner v. United States of America

Filing 8

ORDER STAYING CASE by Chief Magistrate Judge Karen B. Molzen until the Supreme Court issues its decision in Beckles v. United States (S. Ct. No. 15-8544). (KBM)

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

UNITED STATES OF AMERICA,
Plaintiff,
v.

CIV 16-0784 MCA/KBM
CR 11-1203 MCA

DANNY KEVIN BRAWNER,
Defendant.

ORDER GRANTING GOVERNMENT’S REQUEST FOR BECKLES STAY
THIS MATTER is before the Court on Defendant’s Petition to Vacate Sentence
Pursuant to § 2255 Motion (CV Doc. 1, CR Doc. 58). In its Response to the Motion, the
United States requests that this matter be stayed until the Supreme Court hands down its
decision in Beckles v. United States, (S. Ct. No. 15-8544) as to: “(1) whether the holding
in Johnson v. United States [135 S. Ct. 2551 (2015)] applies to the residual clause of
USSG § 4B1.2; and (2) if so, whether Johnson applies retroactively to Sentencing
Guidelines cases on collateral review in which the sentence was enhanced by the
residual clause in § 4B1.2.” CV Doc. 4 at 11. The Supreme Court heard arguments in the
Beckles case on November 28th, and a decision is expected before the summer recess in
2017. Clearly, the Court would be aided by such guidance here because Petitioner
contends Johnson invalidated the use of the career offender guideline to enhance his
sentence.

Three recent unpublished decisions by the Tenth Circuit have addressed the
propriety of a Beckles stay. Those decisions persuade this Court that it must address the
merits of a Johnson claim where the defendant “will effectively be denied his right to
timely resolution of his § 2255 motion.” United States v. Smith, No. 16-8091 (10th Cir.
Nov. 9, 2016), quoting United States v. Miller, No. 16-8080, slip op. at 7(10th Cir. Nov. 2,
2016) (unpublished) (issuing writ of mandamus and directing district court to vacate stay
and address merits); United States v. Carey, No. 16-8093 (10th Cir. Nov. 4, 2016)
(unpublished) (same).
In his Reply, Defendant Brawner contends that a stay in his case must be denied
based on the rationale set forth in those cases:
If Mr. Brawner prevails on his Johnson claim and his claim of
incorrect calculation of guideline range, his guideline range then would
be 100-125 months. He has already been incarcerated since April 19,
2011. Under his correctly calculated guideline range there is a possibility
that under a corrected sentence his release date would fall prior to a
decision in Beckles. There is thus “a fair possibility that the stay for which
[the government] prays will work damage to” Mr. Brawner. Landis, 299
U.S. at 255. Accordingly, the government “must make out a clear case of
hardship or inequity in being required to go forward.” Id. It has not tried to
do so, and for good reason. If the government is right that Beckles will be
decided before Mr. Brawner’s case, this Court will have the benefit of
Beckles regardless. All the government is really asking for is the luxury of
not having to litigate the issues in the meantime. Mr. Brawner’s strong
interest in not being forced to serve more time in prison than is than is
called for by the sentence that would be imposed should he prevail
outweighs the government’s interest in this convenience.
Doc. 5 at 32. The Court, however, respectfully disagrees that a Beckles stay of
these proceedings would prejudice the defendant.
As set forth above, Defendant Brawner has been incarcerated for
approximately 68 months (April 2011 – December 2016), which is well below the
2

100-125 applicable guideline range he estimates if successful on the merits of his
§ 2255 Motion. As Petitioner acknowledges, the Beckles case should be decided
at the latest in June 2017 – just 6 months from now. Assuming that Brawner is
successful on the merits and has accurately predicted the corrected applicable
guideline range, he still could not be released with full good time credit until he
had served 85 months if Chief Judge Armijo chose to sentence him at the lowest
end of a 100-125 month range.
Thus, it appears that the granting of a stay will not effectively operate as a
dismissal of Defendant’s § 2255 claims. Therefore, the Court will exercise its
discretion and stay these proceedings until the Supreme Court issues its decision
in the Beckles case and hopefully provides the trial courts with the guidance they
so greatly need.
IT IS SO ORDERED.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

3