Torres v. United States of America
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION 25 dismissing Motion under 28 USC 2255 and dismissing this cause with prejudice and granting certificate of appealability by Senior District Judge C. LeRoy Hansen. (bap)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
CV 16-645 LH/WPL
CR 02-1488 LH
ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
This matter is before the Court on the Magistrate Judge’s Proposed Findings and
Recommended Disposition (“PFRD”) (CV Doc. 25; CR Doc. 68)1 and Defendant Miguel
Torres’s timely objections (Doc. 28).
After the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551, 2563
(2015), which found unconstitutionally vague the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), Torres received permission from the Tenth Circuit
to file a successive § 2255 motion to argue that Johnson disqualified the two prior felony
convictions used to enhance his sentence under the residual clause of the Career Offender
Guideline, U.S.S.G. § 4B1.2 (2002). (CR Doc. 42 at 1-2.)
While his motion was pending before this Court, the Supreme Court decided Beckles v.
United States, 137 S. Ct. 886 (2017), which held that the residual clause in U.S.S.G.
§ 4B1.2(a)(2), which is “identically worded” to the residual clause in the ACCA that was
invalidated in Johnson, is “not subject to vagueness challenges” because “advisory Guidelines do
not fix the permissible range of sentences” but “merely guide the exercise of the court’s
Documents filed in both cases are referenced by their docket number in the civil case.
discretion in choosing an appropriate sentence within the statutory range.” Id. at 890, 892.
After Beckles, the parties submitted supplemental briefing to address the decision’s effect
on Torres’s motion. (Doc. 19.) A threshold issue was whether the Beckles holding addresses
sentences imposed during the era of mandatory guidelines, which were in effect when Torres
was sentenced in 2002. (Id. at 1-2.) Torres argued that Beckles does not address mandatory
guidelines, and Johnson remains directly on point. (Doc. 24 at 2-4.) The United States countered
that Beckles forecloses Torres’s argument because its reasoning extends to mandatory guidelines.
(Doc. 23 at 4.)
The parties also disagreed about the meaning of footnote four of Justice Sotomayor’s
concurrence in Beckles, which states in full:
The Court’s adherence to the formalistic distinction between mandatory and
advisory rules at least leaves open the question whether defendants sentenced to
terms of imprisonment before our decision in United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)—that is, during the period in which
the Guidelines did “fix the permissible range of sentences,” ante, at 892—may
mount vagueness attacks on their sentences. See Brief for Scholars of Criminal
Law, Federal Courts, and Sentencing as Amici Curiae 33–34. That question is not
presented by this case and I, like the majority, take no position on its appropriate
137 S. Ct. at 903 n.4. Torres argued that the footnote is irrelevant to the question of whether
Johnson applies to his case (see Doc. 24 at 18), while the United States argued that the footnote
reveals that the Supreme Court has not recognized the right Torres asserts (see Doc. 23 at 4).
In the PFRD, the Magistrate Judge tied together the habeas statute, Johnson, and Beckles
Torres’s argument is predicated on the announcement of a new, substantive,
retroactive right in Johnson. He argues that he meets the “1-year limitation
period” in 28 U.S.C. § 2255 because his motion satisfies section (f)(3), which
states that “[t]he limitation period shall run from . . . 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.” (See Doc. 1 at 4.)
Attempting to reconcile these two concepts—that Beckles left open whether
sentences imposed under the mandatory, pre-Booker guidelines can be challenged
as void for vagueness, but Johnson, decided two years earlier, recognized the
right to modify a sentence increased under the mandatory, pre-Booker guidelines
and made the right retroactively applicable on collateral review—reveals that
Torres’s motion should be denied. Simply put, if a concurring opinion says the
existence of a right remains an open question, and the majority opinion does not
explicitly address the right, then the Supreme Court did not previously announce
the existence of the same right.
(Doc. 25 at 4-5.) The Magistrate Judge also cited a recent published case from the District of
Utah that concluded that “neither the Supreme Court nor the Tenth Circuit has directly
recognized a right to modify a sentence increased under the residual clause of USSG § 4B1.2
before Booker . . . .” Ellis v. United States, 2017 WL 2345562, at *3 (D. Utah May 30, 2017).
In his objections to the PFRD, Torres argues that “Beckles nowhere holds that Johnson
does not apply to the mandatory guidelines, and in fact its reasoning makes clear that it does.”
(Doc. 28 at 5.) As case support, he cites a district court opinion, a report and recommendation, an
order withdrawing a report and recommendation, and a PFRD from this district. (See id. at 6
These four opinions, as well as Torres’s objections, suffer from the same flaw: they do
not explain why a concurring opinion would classify this issue as an “open” question—and then
allude to a yet-to-be determined “appropriate resolution”—if Johnson, a prior decision, initially
recognized the right to challenge sentences imposed during the era of mandatory guidelines.
Beckles, 137 S. Ct. at 903 n.4. It would be illogical for a concurring justice to recast a right as an
open question—especially when she appears to agree with the existence of the right—and
likewise unlikely that the majority would fail to address such an attempt. Moreover, as the court
pointed out in Ellis, neither the Supreme Court nor the Tenth Circuit has announced the right that
Torres relies upon, so there is no right to bind district courts in this circuit.
Nevertheless, given that district courts in other circuits have reached the opposite
conclusion and held that a sentence enhancement under the mandatory career offender guideline
violates the Due Process Clause of the Fifth Amendment—see, e.g., Reid v. United States, --- F.
Supp. 3d ---, ---, 2017 WL 2221188, at *5 (D. Mass. May 18, 2017)—the Court grants Torres a
certificate of appealability and encourages him to appeal to the Tenth Circuit. See 28 U.S.C. §
2253(c)(2) (“A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right”); see also Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (“[A] petitioner must show that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further”) (quotation and
The Magistrate Judge also recommends denying Torres’s Motion for Release on
Conditions (Doc. 11) and pro se Motion for Judgment by Default (Doc. 16). (Doc. 25 at 5.)
Torres does not object to this disposition, and the motions are otherwise moot.
IT IS THEREFORE ORDERED that:
1) the PFRD is adopted as an order of the Court;
2) Defendant Miguel Torres’s motion under 28 U.S.C. § 2255 is denied;
3) this cause is dismissed with prejudice; and
4) a certificate of appealability is granted.
SENIOR UNITED STATES DISTRICT JUDGE
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