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United States v. Ramirez

United States District Court, D. Massachusetts

May 24, 2016

UNITED STATES OF AMERICA,
v.
RIGOBERTO RAMIREZ, Defendant.

          MEMORANDUM OF DECISION

          WILLIAM G. YOUNG U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         On 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 so.

         A. Ramirez’s Sentencing and Direct Appeal

         In 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.

         Ramirez appealed his sentence, arguing that one of his prior convictions did not qualify as a “crime of violence” under Section 4B1.2(a).[1] 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.

         At 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, [2] 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).

         B. Developments After the Supreme Court Denied Certiorari

         The 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. § 4B1.2(a)(2).

         In 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.

         C. Ramirez’s Section 2255 Petition

         Following 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.

         The 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.

         In the 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.

         II. ANALYSIS

         This 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.[3] 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).[4]

         A. Due Process

         Although 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.[5] Robert E. Keeton, Keeton on Judging in the American legal System 5 (1999).

         Under 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.

         In 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).

         The Guidelines’ advisory nature[6] 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, ”[7] 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. 2015).[8]

         Moreover, 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, https://www.fd.org/docs/select-topics/sentencing-resources/average-sentences-of-drug-offenders-and-robbery-offenders-(career-offender-and-non-career-offender)----fy-2005-2014.pdf?sfvrsn=4 (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.

         Although 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 process.[9]

         B. Te ...


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