JAMES M. MUNLEY, United States District Judge.
Before the court for disposition is Defendant Joseph Swerdon's (hereinafter "defendant") motion under 28 U.S.C. § 2255 (hereinafter "section 2255") to vacate, set aside, or correct his sentence. (Doc. 51). The matter has been fully briefed and is ripe for disposition. After careful consideration, we will grant the defendant's motion.
The United States (hereinafter "government") filed a criminal complaint against the defendant on August 25, 2011, alleging that on or about October 30, 2010, he aided and abetted a bank robbery and conspired
In preparation for sentencing, the United States Probation Office prepared a presentence investigation report (hereinafter "PSR") on July 17, 2012. The PSR determined the defendant to be a "career offender" under the U.S. Sentencing Guidelines (hereinafter "U.S.S.G." or "Sentencing Guidelines" or "Guidelines") based on a prior Pennsylvania conviction for resisting arrest and a prior controlled substance offense.
On September 19, 2012, we sentenced the defendant to ninety-four (94) months of incarceration. (Doc. 48, Judgment). We departed from the guideline range based on a 5K1.1 plea agreement. (Statement of Reasons ¶ V). The defendant did not directly appeal his sentence. Due to medical issues, the defendant is presently serving his sentence at the federal medical facility located in Springfield, Missouri.
The defendant filed the instant section 2255 motion on February 22, 2016. (Doc. 51). He contends that, following the Supreme Court of the United States' decision in
As defendant brings his motion under section 2255, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We also have jurisdiction under 28 U.S.C. § 2241 ("Writs of habeas corpus may be granted by ... the district courts[.]").
Standard of Review
Generally, a federal prisoner in custody under the sentence of a federal court may, within one year from when the judgment becomes final, move the sentencing court to "vacate, set aside, or correct" a sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Federal law also provides that a federal prisoner may file a section 2255 motion within one year from "[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). A section 2255 motion
Section 2255, however, does not afford a remedy for all errors that may have been made at trial or sentencing.
The defendant argues that his Pennsylvania resisting arrest conviction no longer qualifies as a "crime of violence" under the Sentencing Guidelines, and that he should be resentenced.
Prior to addressing the government's arguments, we will briefly discuss recent Supreme Court cases that redefine and inform the substantive contours of this area of law.
I. Recent Supreme Court opinions
Over the past fifteen months, the Supreme Court of the United States has issued three opinions regarding the Fifth Amendment Due Process Clause's prohibition on vague criminal laws and the interplay between the Sentencing Guidelines and federal sentences.
The following term, the Supreme Court declared that its decision in
Accordingly, we must address whether these legal precepts apply to the identically-worded Career Offender Guidelines' residual clause, U.S.S.G. § 4B1.2(a)(2) (hereinafter "§ 4B1.2(a)(2)") and if so, whether our decision announces a substantive rule retroactive to cases on collateral review. If necessary, we will then address the government's arguments pertaining to waiver and procedural default.
II. Vagueness doctrine applies to the federal sentencing guidelines
The defendant argues that the vagueness problems that led to the unconstitutionality of the ACCA's residual clause in
The Third Circuit Court of Appeals recently determined this very issue that
Having determined that the Career Offender Guidelines' residual clause is unconstitutional, we next address the issue of retroactivity-that is, whether this new rule applies retroactively to Guidelines cases on collateral review. Under
For reasons recently explained by other courts, we will give retroactive effect to our determination that § 4B1.2(a)(2)'s residual clause is unconstitutional.
Specifically, we hold that this ruling-that § 4B1.2(a)(2)'s residual clause is unconstitutional — is a substantive ruling for the following three reasons. First, this rule alters the class of persons who receive additional punishment under the Sentencing Guidelines and holds that the Constitution does not permit a court to sentence a defendant based on whether the defendant engaged in "conduct that presents a serious potential risk of physical injury to another."
Second, a determination that § 4B1.2(a)(2)'s residual clause is unconstitutionally vague is a substantive ruling because it creates a "significant risk" that a defendant "faces a punishment that the law cannot impose upon him."
Third, our decision invalidating § 4B1.2(a)(2) "affects the reach" of the Guidelines "rather than the judicial procedures by which" the Guidelines are applied.
Thus, our determination that § 4B1.2(a)(2)'s residual clause is unconstitutionally vague is a substantive ruling, and therefore, applies retroactively to Guideline cases.
Next, the government argues that the defendant's motion must be dismissed because he waived his right to collaterally attack his conviction and sentence. The defendant acknowledges that his plea agreement contained a voluntary waiver of appellate and collateral rights. (Doc. 58, Def.'s Reply at 9; Doc. 28, Def.'s Plea Agreement ¶ 30). The defendant, however, argues that the waiver results in a miscarriage of justice because he could not have anticipated a
A criminal defendant may waive his right to file a motion under section 2255 or to otherwise seek collateral relief. Such a waiver is valid if entered into "knowingly and voluntarily" unless it would work a "miscarriage of justice."
To determine whether enforcement would create a miscarriage of justice, a court considers the following:
Initially, the clarity and gravity of the error — whether § 4B1.2(a)(2) is unconstitutional and applies retroactively to cases on collateral review — weighs in the defendant's favor. The Third Circuit Court of Appeals has recently determined that the Sentencing Guidelines' residual clause is unconstitutionally void for vagueness, and therefore, it is clear we sentenced the defendant under an unconstitutional Sentencing Guideline.
Additionally, the impact of the error on the defendant weighs in his favor because he may be entitled to a lower sentence. Here, the PSR determined the defendant to be a career offender under the Sentencing Guidelines based on a prior Pennsylvania conviction for resisting arrest and a prior controlled substance offense. (PSR ¶¶ 35, 49 & 60). Thus, the PSR calculated the defendant's sentencing guideline range to be 188 to 235 months based on a total offense level of 31 and a criminal history category of VI. (PSR ¶ 95).
We departed from the guideline range based on a 5K1.1 plea agreement arising from the defendant's substantial assistance and sentenced him to ninety-four (94) months. (Doc. 48, Judgment; Statement of Reasons ¶ V). The defendant argues his guideline range, absent the Career Offender Guidelines' enhancement, would be reduced to 130 to 162 months based on an offense level of 27 and criminal history category of VI. Thus, according to the defendant, a comparable downward departure would reduce his actual sentence.
Finally, the impact of correcting the error on the government and the extent to which the defendant acquiesced in the result also weigh in the defendant's favor. The impact of correcting the error on the government is minimal. We will resentence the defendant. Before resentencing the defendant, however, we will provide the government the opportunity to argue for the sentence it feels is appropriate. Regarding the extent to which the defendant acquiesced in the result, we agree with the Sixth Circuit Court of Appeals, which recently held that an appellate waiver applies, except to arguments that could not have been made pre-
V. Procedural default
Finally, the government contends that the defendant cannot raise his
For the above-stated reasons, we will grant the defendant's section 2255 motion and set aside his judgment. Prior to scheduling a resentencing hearing, we will direct the parties to file a sentencing memorandum, within seven (7) days, illustrating their positions regarding resentencing. An appropriate order follows.
1. Defendant's motion filed pursuant to 28 U.S.C. § 2255 (Doc. 51) is
2. The defendant's sentence (Doc. 48) is
3. The parties are directed to file a revised sentencing memorandum, no greater than ten (10) pages in length, within seven (7) days from the date of this order;
4. The court will review the parties' submissions and resentence the defendant by further order of court, or if necessary, schedule a hearing to resentence the defendant; and
5. The Clerk of Court is directed to close case number 3:16cv313.
In the instant matter, the effect of invalidating § 4B1.2(a)(2)'s residual clause is clear-it alters the class of persons who are subject to heightened punishment under § 4B1.2(a)(2). Applying § 4B1.2(a)(2) increases defendants' criminal history score, and consequently imposes additional punishment on defendants under the Guidelines. The effect of invalidating § 4B1.2(a)(2)'s residual clause would be to limit the class of persons who are subject to additional punishment under § 4B1.2(a)(2). Invalidating § 4B1.2(a)(2)'s residual clause is a substantive rule because "[a] rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes."
Therefore, invalidating § 4B1.2(a)(2)'s residual clause would create a class of prisoners who received unlawful sentences-sentences that included punishment that was imposed in violation of the Due Process Clause's vagueness doctrine. Because judges have discretion to impose sentences outside the Guidelines range,