Cesspooch v. USA
MEMORANDUM DECISION AND ORDER granting 10 the United States' Motion to Dismiss. Signed by Judge Jill N. Parrish on 10/4/17. (dla)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
UNITED STATES OF AMERICA,
Case No. 2:16-CV-00662-JNP
District Judge Jill N. Parrish
This matter comes before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 and Respondent’s motion to dismiss the same.
For the reasons below, the Court denies Petitioner’s motion and grants Respondent’s.
In 1996, Petitioner Alfred Cesspooch was convicted of two counts of assault and one
count of aggravated sexual abuse. Petitioner’s criminal history featured prior convictions for
assault with a deadly weapon, assault on a police officer, and rape. Consequently, the
presentence report designated him a career offender under USSG §4B1.1, and he was sentenced
to 390 months in prison. Petitioner appealed his judgment, but the Tenth Circuit affirmed on
January 28, 2003. The ninety-day period to file a petition for writ of certiorari expired on April
Now Petitioner asks this Court to correct his sentence in light of Johnson v. United
States, 135 S. Ct. 2551 (2015). The United States argues that Petitioner’s motion should be
dismissed because, among other things, Johnson does not apply to Petitioner’s case and therefore
his motion is untimely. The Court agrees with the United States.
This Court may “modify a Defendant’s sentence only in specified instances where
Congress has expressly granted the court jurisdiction to do so.” United States v. Blackwell, 81
F.3d 945, 947 (10th Cir. 1996). Title 28 U.S.C. § 2255 grants this Court that jurisdiction, but
only within one year of “the date on which the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(f)(1). Convictions become final upon conclusion of direct review. United States v.
Carbajal-Moreno, 332 Fed. App’x 472, 474 (10th Cir. 2009). When, as here, the defendant takes
a direct appeal to the court of appeals, the judgment of conviction becomes final when the
Supreme Court “affirms a conviction on the merits on direct review or denies a petition for a writ
of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537
U.S. 522, 527 (2003). Petitioner’s ninety-day period to file a petition for writ of certiorari
expired on April 18, 2003. He filed the motion at issue here on June 21, 2016—well beyond the
one-year limit. Consequently, Petitioner’s motion is untimely unless, as he argues, Johnson
recognized a new right that is retroactively applicable to his case, restarting the one-year period
under 28 U.S.C. § 2255(f)(3).1
Here, Petitioner asserts that he has the right not to be sentenced as a career offender under
the mandatory guidelines’ residual clause. If the Supreme Court has recognized that right and the
right has been made retroactively applicable to cases on collateral review, Petitioner’s motion is
timely. See id. Otherwise, it is not, and this Court must dismiss it.
In Johnson, the Supreme Court held that “imposing an increased sentence under the
residual clause of the Armed Career Criminal Act [“ACCA”] violates the Constitution’s
Section 2255(f)(3) provides that the one-year limitation period may 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 . . . .”).
guarantee of due process” because the residual clause of the ACCA is unconstitutionally vague.
135 S. Ct. at 2563. Therefore, Petitioner argues, “the identical language in §4B1.2(a)(2) is also
unconstitutionally vague.” ECF No. 1 at 3. In support, Plaintiff cites the Tenth Circuit’s opinion
in United States v. Madrid, which held § 4B1.2(a)(2) void for vagueness under Johnson. 805
F.3d 1204, 1211 (10th Cir. 2015). However, after Petitioner filed his motion, Madrid was
abrogated by the Supreme Court’s holding in Beckles v. United States, 137 S. Ct. 886 (2017).
Beckles instructed that because the guidelines are advisory, they “are not amenable to a
vagueness challenge.” Id. at 894.
The United States repeats the Beckles holding, insisting that it controls here.2 This is
incorrect. In Beckles, the Supreme Court’s clear holding was that “the advisory Sentencing
guidelines are not subject to a vagueness challenge under the Due Process Clause and that §
4B1.2(a)’s residual clause is not void for vagueness.” Id. at 895 (emphasis added). Writing for
the majority, Justice Thomas distinguished between the mandatory and advisory guidelines. And
as Justice Sotomayor noted in her concurring opinion, “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 [Booker] . . . may mount
vagueness attacks on their sentences.” Id. at 903 n.4.
Beckles did not deny the right Petitioner asserts. But Johnson did not recognize it. And if
Madrid did recognize such a right, that opinion was abrogated by Beckles.3 Therefore, whether
Petitioner may challenge his sentencing under the residual clause of § 4B1.2(a) remains an open
question. See United States v. Miller, No. 16-2229, 2017 WL 3658833, at *3 n.3 (10th Cir. 2017)
ECF No. 10 at 2, 3, 4, 7–8, 10; No. 13 at 4, 5.
And if it had not been, Madrid would remain irrelevant. Section 2255(f)(3) requires that the right be initially
recognized by the Supreme Court. The Tenth Circuit is not the Supreme Court.
(“[W]e express no opinion on whether the Supreme Court has recognized the right [not to be
sentenced as a career offender under the residual clause of the mandatory guidelines] for
purposes of § 2255(f)(3).”); United States v. Brown, No. 16-7056, 2017 WL 3585073, at *4 (4th
Cir. Aug. 21, 2017) (noting that the Supreme Court “has yet to recognize a broad right
invalidating all residual clauses as void for vagueness” and holding that petitioner’s motion was
therefore untimely); Raybon v. United States, 867 F.3d 625, 629 (6th Cir. 2017) (“[W]hether
[Johnson] applies to the mandatory guidelines . . . is an open question.”); but see Moore v.
United States, No. 16-1612, 2017 WL 4021654 (1st Cir. Sept. 13, 2017) (granting petitioner
sentenced pre-Booker certification to argue in the district court that Johnson invalidates the
residual clause of the career offender guideline). As such, the right Petitioner asserts has not been
recognized by the Supreme Court and certainly has not been “made retroactively applicable to
cases on collateral review.” 28 U.S.C. § 2255(f)(3); see generally Tyler v. Cain, 533 U.S. 656,
663–64 (2001) (holding that “made” means “held” under identical language in § 2244(b)(2)(A)
and that it must be held retroactive by the Supreme Court). Consequently, Petitioner’s motion is
This Court’s decision is consistent with other decisions in this district. In Ellis v. United
States, the petitioner challenged his pre-Booker guidelines enhancement under Johnson. No.
2:16-cv-484, 2017 WL 2345562 (D. Utah, May 30, 2017). And in Rith v. United States, the
petitioner similarly asked the court to correct his sentence based on Johnson. No. 2:16-cv-00351,
2017 WL 3738549 (D. Utah Aug. 29, 2017). In both cases, the courts ruled the §2255 motions
For the reasons above, Petitioner’s motion is untimely. The Court GRANTS the United
States’ motion to dismiss.
Signed October 4, 2017.
BY THE COURT
Jill N. Parrish
United States District Court Judge
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