United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
WILLIAM G. YOUNG U.S. DISTRICT JUDGE.
February 25, 2016, this Court granted Rigoberto
Ramirez’s (“Ramirez”) motion to vacate his
sentence under 28 U.S.C. § 2255, mandating his immediate
release from custody. Elec. Clerk’s Notes, ECF No. 137.
This memorandum explains the Court’s reasoning in doing
Ramirez’s Sentencing and Direct Appeal
2011, Ramirez pled guilty to several drug-related charges.
Elec. Clerk’s Notes, ECF No. 41; see United States
v. Ramirez, 708 F.3d 295, 298 (2013) (“Ramirez
I”). Based on the algorithm established by the
United States Sentencing Commission Guidelines
(“Guidelines”), the U.S. Probation Office’s
pre-sentence report (“PSR”) initially determined
that Ramirez’s offense level was 15 and that his
criminal history points placed him in Criminal History
Category V, resulting in a Guidelines sentencing range of 37
to 46 months. Ramirez Pre-sentence Report (“PSR”)
12, 29; Ramirez I, 708 F.3d at 298. The U.S.
Probation Office also determined that two of Ramirez’s
prior convictions qualified as “crime[s] of
violence” under Guidelines Section 4B1.2(a), making
Ramirez a “career offender” subject to a sentence
enhancement under Section 4B1.1 of the Guidelines. PSR 12;
Ramirez I, 708 F.3d at 299. This designation
necessarily bumped him up to Criminal History Category VI.
The PSR calculated Ramirez’s career-offender total
offense level to be 31, which, together with his Criminal
History Category VI, led to a Guidelines range of 188 to 235
months. PSR 12, 29, 44; U.S.S.G. § 4B1.2(a). The Court
adopted the PSR’s Guidelines calculations and sentenced
Ramirez to 156 months (13 years) in prison. Tr. Disposition
Rigoberto Ramirez 9:6-8, ECF No. 78; Elec. Clerk’s
Notes, ECF No. 71.
appealed his sentence, arguing that one of his prior
convictions did not qualify as a “crime of
violence” under Section 4B1.2(a). Ramirez
I, 708 F.3d at 300. The First Circuit concluded that
this Court had not erred in applying the career-offender
enhancement, and that Ramirez qualified as career offender
solely under the career-offender “residual
clause” in Section 4B1.2(a)(2) of the Guidelines (the
“Guidelines’ Residual Clause”).
Id. at 307. The First Circuit, however, remanded the
case for resentencing on the basis that the record was
unclear with respect to this Court’s imposition of an
unrelated sentence enhancement. Id. at 310.
Ramirez’s resentencing on April 29, 2013, the Court
determined Ramirez’s career offender total offense
level to be 29, which, coupled with his unchanged Criminal
History Category VI, resulted in a Guidelines range of 151 to
188 months. Order. Am. J. (“Order”) 1, 7, ECF No.
102. The Court amended the prior judgment and resentenced
Ramirez to 12 years (144 months), which was below the
career-offender-enhanced Guidelines range. Id. at 9.
Ramirez appealed the amended judgment, first to the First
Circuit, which affirmed the Court’s resentencing,
United States v. Ramirez, No. 13-1585, slip op. (1st
Cir. June 23, 2014) (“Ramirez II”), ECF
No. 111, and then, to the Supreme Court, Letter Supreme Court
United States Clerk, ECF No. 113. The Supreme Court denied
certiorari on October 20, 2014. Ramirez v. United
States, 135 S.Ct. 424 (2014).
Developments After the Supreme Court Denied Certiorari
year after the Supreme Court denied Ramirez certiorari, it
decided Johnson v. United States, 135 S.Ct. 2551
(2015). In Johnson, the named defendant had been
sentenced under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), which imposes
sentencing enhancements on individuals convicted under 18
U.S.C. § 922(g) (felon in possession of a firearm).
See id. at 2556. If an individual convicted under
Section 922(g) has three or more prior convictions for a
“serious drug offense” or a “violent
felony, ” the ACCA increases his sentencing range from
a maximum of 10 years in prison, to a minimum of 15 years in
prison. 18 U.S.C. § 924(e)(1); Johnson, 135
S.Ct. at 2555. The ACCA defines “violent felony”
as “any crime punishable by imprisonment for a term
exceeding one year” that “(i) has as an element
the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another[.]” 18 U.S.C. §
924(e)(2)(B) (emphasis added). The underlined text is known
as the “residual clause” of the ACCA,
Johnson, 135 S.Ct. at 2556, and is expressed in haec
verba as the Guidelines’ career-offender residual
clause. Ramirez I, 708 F.3d at 306; U.S.S.G. §
Johnson, the Supreme Court concluded that the
inquiry required to establish whether a certain offense fell
under the ACCA’s residual clause “denie[d] fair
notice to defendants and invite[d] arbitrary enforcement by
judges.” 135 S.Ct. at 2557. Prior judicial attempts
that failed to craft a “principled and objective
standard out of the residual clause” convinced the
Supreme Court that “imposing an increased sentence
under the residual clause of the [ACCA] violate[d] the
Constitution’s guarantee of due process.”
Id. at 2558, 2563.
Ramirez’s Section 2255 Petition
Johnson, on August 24, 2015, Ramirez filed the
current motion to vacate his sentence under 28 U.S.C. §
2255, arguing that the Supreme Court’s invalidation of
the ACCA residual clause requires the conclusion that the
Guidelines’ identically worded residual clause also
violates due process, and that this conclusion ought
retroactively apply to Ramirez’s collateral attack on
his sentencing. Mot. Vacate, ECF No. 119; Addendum Supp. 28
U.S.C. § 2255 Mot. 2, ECF No. 120; Def.’s Reply
Mem. Law Supp. Mot. § 2255 Vacate, Set Aside, Correct
Sentence Person Federal Custody (“Def.’s
Mem.”) 3, ECF No. 134.
government opposed Ramirez’s petition.
Gov’t’s Supplemental Opp’n Def.’s
Mot. Relief 28 U.S.C. § 2255 (“Gov’t’s
Opp’n”) 2-4, ECF No. 131. In its memorandum, the
government conceded that Johnson applies
retroactively to cases involving the ACCA, id. at 2,
and that, under Johnson, the Guidelines’
Residual Clause is invalid, id. at 3. It argued,
nevertheless, that “the application of Johnson
to the Sentencing Guidelines’ residual clause produces
procedural changes in the sentencing process that are not
retroactive on collateral review.” Id.
time since the parties filed their briefs and the Court
granted Ramirez’s motion at the February 25, 2016,
hearing, the Supreme Court confirmed the retroactivity of
Johnson as applied to the ACCA in Welch v.
United States, 136 S.Ct. 1257 (2016). The retroactive
application of Johnson to the Guidelines’
Residual Clause, however, has not yet been addressed by the
Supreme Court or any of the Courts of Appeal.
case presents the question whether the Supreme Court’s
decision in Johnson ought apply retroactively to
invalidate the Guidelines’ Residual Clause on
collateral review of Ramirez’s sentence under 28 U.S.C.
§ 2255. Accordingly, the Court first analyzes the
merits of Ramirez’s constitutional claim -- the due
process vagueness challenge to the Guidelines’ Residual
Clause - - although the parties agree that the
Guidelines’ Residual Clause is unconstitutionally
vague. The Court then proceeds to conduct the retroactivity
analysis for Johnson, as applied to the Guidelines,
under the relevant framework for determining retroactivity
provided by the plurality opinion in Teague v. Lane,
489 U.S. 288 (1989). See Ferrara v. United States,
456 F.3d 278, 288 (1st Cir. 2006).
the government conceded that the Guidelines’ Residual
Clause is void for vagueness, the Court briefly addresses the
merits of this argument -- on which neither the First Circuit
nor the Supreme Court has yet spoken -- for the purpose of
“candidly explain[ing]” its
reasoning. Robert E. Keeton, Keeton on Judging in
the American legal System 5 (1999).
the Guidelines, an offender is subject to an increased
sentencing range if classified as a “career
offender” as a result of having “at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1.
The Guidelines define “crime of violence” as an
offense that “(1) has as an element the use, attempted
use, or threatened use of physical force against the person
of another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” Id. §
4B1.2(a)(1)-(2) (emphasis added). The underlined text is the
Guidelines’ Residual Clause.
Johnson, the Supreme Court held that the identically
worded residual clause of the ACCA was void for vagueness
because it was “so vague it fail[ed] to give ordinary
people fair notice of the conduct it punishe[d], or so
standardless that it invite[d] arbitrary enforcement.”
Johnson, 135 S.Ct. at 2556. The Court observed that
“the experience of the federal courts leaves no doubt
about the unavoidable uncertainty and arbitrariness of
adjudication under the residual clause[, ]”
id. at 2562, and referenced cases interpreting both
the ACCA residual clause and the Guidelines’ Residual
Clause, id. at 2557, 2560 (collecting cases). In the
First Circuit, the two residual clauses have also been
analyzed in tandem in the past. See Ramirez I, 708
F.3d at 306; United States v. Grupee, 682 F.3d 143,
148-49 (1st Cir. 2012); United States v. Giggey, 551
F.3d 27, 39 (1st Cir. 2008).
Guidelines’ advisory nature does not render the Supreme
Court’s conclusion inapplicable to the residual clause
contained therein. Cf. Peugh v. United States, 133
S.Ct. 2072, 2084 (2013) (holding that the Guidelines are
subject to the Ex Post Facto clause). The Guidelines
“remain the starting point for a district court’s
decision, ” Giggey, 551 F.3d at 29, and
district courts are to justify major departures, see
Peugh, 133 S.Ct. at 2080; United States v.
Ortiz-Rodriguez, 789 F.3d 15, 19 (1st Cir.
whether or not the eventual sentence falls within or outside
the Guidelines range, the classification as career offender
has a meaningful impact on the offender’s ultimate
sentence. See Federal Defender’s Office,
Average Sentences of Drug Trafficking Offenders (Career
Offender and Non-career Offender) FY 2005-2014,
(last visited May 19, 2016). Data show that the difference
between the average sentences for career offenders versus
non-career offenders is around 100 months. See id.
the Guidelines’ advisory nature means that a criminal
defendant has no “expectation subject to due process
protection . . . that [he will] receive a sentence within the
presumptively applicable Guidelines range[, ]”
Irizarry v. United States, 553 U.S. 708, 713 (2008),
the Guidelines’ continued role as “basis, ”
Peugh, 133 S.Ct. at 2083, for a defendant’s
ultimate sentence preserves his due process expectation that
his sentence-enhancing classification as a career offender
will not be subject to the “unavoidable uncertainty and
arbitrariness of adjudication under the residual clause,
” Johnson, 135 S.Ct. at 2562. Indeed, the
invocation of “so shapeless a provision” as the
residual clause to sentence a defendant to a significantly
higher sentence, id. at 2560, violates due