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United States v. Brown

United States Court of Appeals, Fourth Circuit

August 21, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
THILO BROWN, Defendant-Appellant.

          Argued: May 11, 2017

         Appeal from the United States District Court for the District of South Carolina at Charleston. Patrick Michael Duffy, Senior U.S. District Court Judge. (2:02-cr-00519-PMD-1; 2:16-cv-268-PMD)

         ARGUED:

          Alicia Vachira Penn, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant.

          William Camden Lewis, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          Beth Drake, United States Attorney, Columbia, South Carolina, Marshall Taylor Austin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

          Before GREGORY, Chief Judge, and DUNCAN and DIAZ, Circuit Judges

          DUNCAN, CIRCUIT JUDGE:

         Petitioner-Appellant Thilo Brown appeals the district court's order dismissing his 28 U.S.C. § 2255 motion. This court granted Petitioner a certificate of appealability on the issue of whether, in light of Johnson v. United States, 135 S.Ct. 2551 (2015), his prior South Carolina conviction for assault on a police officer while resisting arrest, SC Code Ann. § 16-9-320(B) ("Resisting-Arrest Assault Conviction"), qualifies as a predicate "crime of violence" for career-offender status under the Sentencing Guidelines, U.S.S.G. §§ 4B1.1(a), 4B1.2(a) (2002). For the reasons that follow, we affirm the district court.

         Petitioner can succeed only if, inter alia, a Supreme Court precedent has rendered his motion timely by recognizing a new right entitling him to relief. 28 U.S.C. § 2255(f)(3). As the dissent acknowledges, neither Johnson, nor Beckles, nor any other Supreme Court case has recognized the specific right on which Brown seeks to rely.[1] See Johnson, 135 S.Ct. at 2555-56, 2560, 2563; Beckles, 137 S.Ct. 886, 895 (2017); see also id. at 903 n.4 (Sotomayor, J., concurring). With respect for its view, we are constrained by the Antiterrorism and Effective Death Penalty Act (AEDPA) jurisprudence from extrapolating beyond the Supreme Court's holding to apply what we view as its "reasoning and principles" to different facts under a different statute or sentencing regime. We are thus compelled to affirm the dismissal of Petitioner's motion as untimely under 28 U.S.C. § 2255(f)(3).

         I.

         A.

         On March 19, 2003, Petitioner pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) ("Drug Offense"), and to carrying a firearm during the commission of a drug crime in violation of 18 U.S.C. § 924(c) ("Firearm Offense"). J.A. 83. At sentencing, the district court designated Petitioner a career offender under U.S.S.G. § 4B1.1(a) (2002) because he had a prior felony conviction that qualified as a predicate controlled-substance offense, [2] and his prior Resisting-Arrest Assault Conviction qualified as a predicate crime-of-violence offense. J.A. 90, 91; U.S.S.G. § 4B1.2(a) (2002). Because the district court sentenced Petitioner on July 14, 2003, before United States v. Booker, 543 U.S. 220 (2005), Petitioner's career-offender status resulted in a mandatory guideline range of 262-327 months for the Drug Offense and a minimum consecutive sentence of sixty months for the Firearm Offense.[3] J.A. 89-102. Petitioner received a total sentence of 322 months--the low end of the guidelines' range for both offenses and well within the range of permissible statutory sentences that the district court could have imposed. J.A. 8-9. The district court entered judgment against Petitioner on July 21, 2003. J.A. 8-9. Petitioner did not appeal.

         B.

         On June 26, 2015--after Petitioner's conviction became final for purposes of direct review, but before Petitioner filed any 28 U.S.C. § 2255 motion--the Supreme Court decided Johnson. 135 S.Ct. at 2555. In Johnson, the Court held that ACCA's residual clause was void for vagueness. Id. at 2560, 2563.[4]

         On January 28, 2016, Petitioner filed a 28 U.S.C. § 2255 motion to vacate his sentence. Relying on Johnson, Petitioner argued that his prior Resisting-Arrest Assault Conviction could no longer serve as a predicate crime of violence under U.S.S.G. § 4B1.2(a) (2002), and therefore, his earlier designation as a career offender was unjustified. J.A. 19-23, 45-54. Petitioner's argument rested on the premise that Johnson's holding invalidated not only ACCA's residual clause, but also like-worded residual clauses in the Sentencing Guidelines. On June 17, 2016, the district court dismissed Petitioner's motion with prejudice and declined to issue a certificate of appealability. J.A. 37-44. Petitioner appealed and moved for a certificate of appealability on August 5, 2016. On December 7, 2016, this court granted Petitioner a certificate of appealability on the issue of whether his prior Resisting-Arrest Assault Conviction qualifies as a predicate offense for career-offender status in light of Johnson. [5]

         II.

         On appeal, Petitioner relies on 28 U.S.C. § 2255(f)(3) to render his motion timely. Under § 2255(f)(3), a petitioner can file a § 2255 motion relying on a right newly recognized by the Supreme Court provided that, inter alia, he files within a one-year window running from "the date on which the right asserted was initially recognized by the Supreme Court." Id. § 2255(f)(3).

         Petitioner acknowledges, as he must, that the Supreme Court's recent holding in Beckles, forecloses his argument that Johnson explicitly invalidated all residual clauses with wording similar to ACCA's invalidated residual clause. Petitioner nevertheless urges this court to extrapolate a recognized right from Booker, Johnson, and Beckles, read together. Petitioner and the dissent maintain that we can find his asserted right in the principles animating these decisions even though none of them, nor any other Supreme Court precedent, have recognized a right to challenge the pre-Booker mandatory Sentencing Guidelines as void for vagueness and despite the fact that the Beckles Court expressly declined to address the issue of whether the pre-Booker mandatory Sentencing Guidelines are amenable to void-for-vagueness challenges. See Beckles, 137 S.Ct. at 895; see also id. at 903 n.4 (Sotomayor, J., concurring).

         We review de novo the question presented on appeal. See United States v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008); United States v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005). As explained below, because of the procedural posture we are compelled to affirm.

         A.

         In accordance with Congress's intent to limit the number of collateral-review cases before federal courts and to respect the finality of convictions, the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.C.) ("AEDPA"), provides for a one-year statute of limitations for § 2255 motions. 28 U.S.C. § 2255(f). Normally, for a motion to be timely under § 2255(f), a petitioner must file for relief within one year of the date that his judgment of conviction becomes final. See id. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 525 (2003). However, under § 2255(f)(3), courts will consider a petitioner's motion timely if (1) he relies on a right recognized by the Supreme Court after his judgment became final, (2) he files a motion within one year from "the date on which the right asserted was initially recognized by the Supreme Court, " 28 U.S.C. § 2255(f)(3), and (3) the Supreme Court or this court has made the right retroactively applicable. See Dodd v. United States, 545 U.S. 353, 358-59 (2005); United States v. Mathur, 685 F.3d 396, 397-98 (4th Cir. 2012); United States v. Thomas, 627 F.3d 534, 536-37 (4th Cir. 2010). Although this court can render a right retroactively applicable, only the Supreme Court can recognize a new right under § 2255(f)(3). See Dodd, 545 U.S. at 357-59; Thomas, 627 F.3d at 536-37; see also Mathur, 685 F.3d at 399-401. Consequently, to find Petitioner's motion timely, we must conclude that it relies on a right "recognized" in Johnson or another more recent Supreme Court case. See Dodd, 545 U.S. at 357-59; see also Mathur, 685 F.3d at 399- 401. "As with any question of statutory interpretation, our analysis begins with the plain language of the statute." Jimenez v. Quarterman, 555 U.S. 113, 118 (2009).

         To "recognize" something is (1) "to acknowledge [it] formally" or (2) "to acknowledge or take notice of [it] in some definite way." Recognize, Merriam-Webster Tenth Collegiate Dictionary 976 (1996); see also Tapia v. United States, 564 U.S. 319, 327 (2011). Thus, a Supreme Court case has "recognized" an asserted right within the meaning of § 2255(f)(3) if it has formally acknowledged that right in a definite way. Cf. Williams v. Taylor, 529 U.S. 362, 412 (2000) (interpreting the phrase "clearly established Federal law, as determined by the Supreme Court" within another provision of AEDPA to mean "the holdings, as opposed to the dicta" of Supreme Court precedent). Correspondingly, if the existence of a right remains an open question as a matter of Supreme Court precedent, then the Supreme Court has not "recognized" that right. Cf. Tyler v. Cain, 533 U.S. 656, 662-64 (2001) (interpreting the word "made" within another provision of AEDPA--"made retroactive to cases on collateral review by the Supreme Court"--to mean "held").

         B.

         We now turn to the right Petitioner claims the Supreme Court recognized in Johnson. Petitioner's motion relies on a claimed due-process right to have his guidelines' range calculated without reference to an allegedly vague Sentencing Guidelines' provision, despite the fact that the district court imposed his sentence within permissible statutory limits. Regrettably for Petitioner, the Supreme Court did not recognize such a right in Johnson. While Johnson did announce a retroactively applicable right, Welch v. United States, 136 S.Ct. 1257, 1265 (2016), Johnson dealt only with the residual clause of ACCA--a federal enhancement statute, Johnson, 135 S.Ct. at 2555-56. ...


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