Doering v. United States of America

Filing 25

ORDER STAYING CASE. Signed by US Magistrate Judge Veronica L. Duffy on 9/23/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
PAUL F. DOERING,

5:16-CV-05016-JLV

Petitioner,
ORDER STAYING CASE
vs.
UNITED STATES OF AMERICA,
Respondent.

This matter is before the court on petitioner Paul F. Doering’s amended
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. See Docket No. 23. Mr. Doering’s motion is based in part on extending
the Supreme Court’s holding in Johnson v. United States, ___ U.S. ___, 135 S.
Ct. 2551 (2015), to the United States Sentencing Guidelines (USSG), which
have similar wording to the statutory language addressed in Johnson. See
Docket No. 23. The Johnson decision held the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally vague.
Johnson, 135 S. Ct. at 2557-58. The Johnson ruling is retroactively applicable
to cases on collateral review. Welch v. United States, ___ U.S. ___, 136 S. Ct.
1257, 1268 (2016).
The Armed Career Criminal Act considered in Johnson defined “violent
felony” as an act that threatens “use of physical force against the person of

another,” “is burglary, arson, or extortion,” “involves use of explosives,” or
“otherwise involves conduct that presents a serious potential risk of physical
injury to another.” See 18 U.S.C. § 924(e)(2)(B). The last part of this
definition—“otherwise . . .”—is known as the residual clause.
The wording of the residual clause is repeated in USSG § 4B1.2(a)(2), to
which the commentary to USSG § 2K2.1 makes reference. See USSG § 2K2.1
cmt. 1. Courts of appeals are divided as to whether the holding of Johnson
applies with equal force to the now-advisory USSG. See Donnell v. United
States, 826 F.3d 1014 (8th Cir. 2016) (holding Johnson does not apply to the
USSG). But see Blow v. United States, 2016 WL 3769712 at *2 (2d Cir. July
14, 2016) (per curiam); In re Hubbard, 825 F.3d 225, 235 (4th Cir. 2016); In re
Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016) (per curiam) (all holding that
Johnson applies equally to the USSG § 4B1.2(a)(2) rendering that provision
unconstitutional).
The Supreme Court has recently granted certiorari to review whether
Johnson applies to USSG § 4B1.2(a)(2), and whether that application should
apply retroactively to cases on collateral review like Mr. Doering’s. See Beckles
v. United States, Supreme Court Case No. 15-8544. The Beckles Court may
resolve the law applicable to Mr. Doering’s case in a way inconsistent with
current Eighth Circuit precedent in Donnell (which would otherwise be binding
on this court). The more prudent route is to stay this case until the Beckles
decision is rendered. Accordingly, it is hereby

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ORDERED that Paul Doering’s amended motion pursuant to 28 U.S.C.
§ 2255 is stayed pending the United States Supreme Court’s decision in
Beckles v. United States, Supreme Court Case No. 15-8544.
DATED September 23, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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