Yellowbear v. USA
ORDER AND MEMORANDUM DECISION granting 24 Motion to Dismiss. Signed by Judge Tena Campbell on 4/27/17 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA,
ORDER AND MEMORANDUM
PETITIONER’S MOTION FOR
RELIEF UNDER 28 U.S.C. § 2255
Case No. 2:16-CV-00740-TC
Judge Tena Campbell
Mr. Yellowbear pled guilty to being a felon in possession of a firearm.
Because he had previously committed at least two “crimes of violence” as defined
by the then-current version of the United States Sentencing Guidelines
(Guidelines), Mr. Yellowbear’s recommended sentence was enhanced.
Yellowbear petitioned the court to vacate his sentence, arguing that the
Guidelines enhancement was unconstitutional under the Supreme Court’s ruling
in Johnson v. United States, 135 S. Ct. 2551 (2015). However, not long after Mr.
Yellowbear filed his petition, the Supreme Court held in Beckles v. United States
that the ruling in Johnson does not apply to the Guidelines. 137 S. Ct. 886, 897
(2017). Because Johnson does not apply to the Guidelines, the court dismisses
Mr. Yellowbear’s petition.
Mr. Yellowbear pled guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). His presentence report considered
two of his prior convictions as “crimes of violence” under the Guidelines. These
prior convictions increased the recommended sentencing range under the
However, the court sentenced Mr. Yellowbear below the range
suggested by the Guidelines.
In 2015, the Supreme Court ruled in Johnson v. United States that the
residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally
135 S. Ct. 2551 (2015).
Under the ACCA, a felon convicted of
possessing a firearm is subject to a fifteen-year mandatory minimum sentence
when he has three prior convictions for either a “violent felony” or a “serious
drug offense.” 18 U.S.C. § 924(e). Before the Court’s decision in Johnson, the
ACCA contained a “residual clause” which defined violent felonies to include
crimes that “involve conduct that presents a serious potential risk of physical
injury to another.” Id. § 924(e)(2)(B)(ii).
Like the ACCA, the Guidelines provide enhancements for crimes
constituting a “crime of violence.” Mirroring the residual clause’s definition
provided under the ACCA, section 4B1.2(a)(2) of the Guidelines defines a
“crime of violence” to include a crime that “involves conduct that presents a
serious potential risk of physical injury to another.” After Johnson, the Tenth
Circuit held in United States v. Madrid that the Guidelines’ residual clause is also
unconstitutionally vague. 805 F.3d 1204, 1210 (10th Cir. 2015).
Citing to the Supreme Court’s ruling in Johnson, and the Tenth Circuit’s
ruling in Madrid, Mr. Yellowbear filed a petition under 28 U.S.C. § 2255, asking
the court to vacate his sentence and resentence him without the Guidelines’
residual clause. Though Mr. Yellowbear argued both that his attorney provided
constitutionally deficient counsel and that his sentence was miscalculated, both
arguments were based on Johnson’s retroactive application to the Guidelines.
Shortly after Mr. Yellowbear filed his petition, the Supreme Court decided
Beckles v. United States. 137 S. Ct. 886 (2017). There, the Court overturned
Madrid and unequivocally ruled that “the Guidelines are not subject to a
vagueness challenge under the Due Process Clause” and “[t]he residual clause in
§ 4B1.2(a)(2) therefore is not void for vagueness.” Id. at 892.
Citing to Beckles, the Government filed a motion to dismiss Mr.
Mr. Yellowbear’s petition raises two arguments, both based explicitly on
Johnson’s application to the Guidelines. First, Mr. Yellowbear contends that his
attorney gave constitutionally ineffective assistance by failing to argue that the
Guidelines’ residual clause is void for vagueness.
Second, Mr. Yellowbear
asserts that Johnson applies to the Guidelines and, consequently, his range for
sentencing was calculated incorrectly.
Here, the Supreme Court’s decision in Beckles forecloses both of Mr.
Yellowbear’s arguments. First, Mr. Yellowbear’s counsel was not deficient:
Beckles rejects the very argument Mr. Yellowbear alleges his counsel should
have made. Id. An attorney does not provide ineffective assistance by failing to
bring a meritless argument. See Strickland v. Washington, 466 U.S. 668, 687–88
(1984) (holding that ineffective-assistance-of-counsel claims require a showing
that counsel’s performance “fell below an objective standard of reasonableness”).
Second, Mr. Yellowbear’s claim that his Guideline range was calculated
By holding that the Guidelines’
incorrectly explicitly fails under Beckles.
residual clause is not void for vagueness, the Supreme Court upheld the basis for
Mr. Yellowbear’s Guidelines’ calculation.
Accordingly, both of Mr.
Yellowbear’s claims fail as a matter of law.
For the reasons discussed, the Court GRANTS the Government’s motion to
dismiss (ECF No. 24).
DATED this 27th day of April, 2017.
BY THE COURT:
U.S. District Court Judge
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