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Moore v. United States

United States Court of Appeals, First Circuit

September 13, 2017

DARNELL A. MOORE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

         APPLICATION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255

          Inga L. Parsons for petitioner.

          Michael A. Rotker, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Kenneth A. Blanco, Acting Assistant Attorney General, U.S. Department of Justice, Criminal Division, Trevor N. McFadden, Deputy Assistant Attorney General, U.S. Department of Justice, Criminal Division, William D. Weinreb, Acting U.S. Attorney, and Dina M. Chaitowitz, Assistant U.S. Attorney, Chief, Appellate Division, were on brief, for respondent.

          Before Thompson, Kayatta, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         Darnell Moore seeks to file a successive motion to vacate his federal sentence under 28 U.S.C. § 2255. Before he can do so, this court must certify that his motion "contain[s] . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h). The new rule upon which Moore's motion relies, according to Moore, is that announced in Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015). Johnson II declared unconstitutionally vague the residual clause in the Armed Career Criminal Act's (ACCA) definition of a "violent felony, " see 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court made Johnson II retroactive to cases on collateral review in Welch v. United States, 136 S.Ct. 1257 (2016). Moore seeks to argue in the district court that the new rule created by Johnson II invalidates the residual clause of the career offender guideline applied at his sentencing, which occurred before United States v. Booker, 543 U.S. 220 (2005), made the guidelines advisory, id. at 245 (opinion of Breyer, J.). For the following reasons, we grant Moore the certification he requests.

         I.

         In July 2000, Darnell Moore was charged with two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). See United States v. Moore, 362 F.3d 129, 131 (1st Cir. 2004). He pleaded guilty in May 2002. Id. Sentencing occurred in October 2002, id. at 133-34, prior to the Supreme Court's decision in Booker.

         The sentencing court concluded that Moore fell under the career offender guideline. Moore, 362 F.3d at 131-32. That guideline applied to defendants who were at least eighteen years old at the time of the offense of conviction, whose offense of conviction was a "crime of violence or a controlled substance offense, " and who had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1 (U.S. Sentencing Comm'n Nov. 1, 2001). The definition of a "crime of violence" included

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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 (Nov. 1, 2001). Moore had prior convictions in Massachusetts state courts for assault and battery, assault and battery on a corrections officer, breaking and entering during the daytime, and assault with a dangerous weapon. To classify Moore as a career offender, the district court must have concluded that at least two of these prior convictions satisfied the guidelines' definition of "crime of violence."

         The career offender guideline increased Moore's criminal history category to VI and, because the unarmed bank robbery conviction carried a statutory maximum sentence of twenty years, see 18 U.S.C. § 2113(a), increased Moore's offense level to thirty-two. See U.S.S.G. § 4B1.1 (Nov. 1, 2001). Using this offense level and this criminal history category, Moore's mandatory guidelines sentencing range was 210 to 262 months.[1] See Moore, 362 F.3d at 133-34; see also U.S.S.G. Ch. 5, Pt. A (Nov. 1, 2001) (Sentencing Table). The district court sentenced him to 216 months' imprisonment. Moore, 362 F.3d at 134.

         In March 2005, Moore filed a motion to vacate his sentence under 28 U.S.C. § 2255. He argued, among other things, that Booker applied retroactively and thus the district court erred by treating the guidelines as mandatory at his sentencing. The district court denied the motion, ruling that Booker did not have retroactive effect. Moore did not appeal that denial.[2]

         In June 2015, the Supreme Court handed down its opinion in Johnson II. The opinion addressed the ACCA, which mandates the increase of minimum and maximum sentences for certain crimes whenever the defendant has previously been convicted of a "violent felony." The ACCA's definition of a "violent felony" reads, in relevant part:

[T]he term "violent felony" means 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).

         In Johnson II, the Supreme Court held that the clause underlined above, called the "residual clause, " was so vague that it violated due process for the ACCA to use it to increase minimum or maximum allowable sentences. 135 S.Ct. at 2557. The Court's prior opinions had established that the residual clause was to be applied in the following way: First, a court would identify an "ordinary case" of the crime in question. Id. Second, the court would determine whether that ordinary case presented a serious potential risk of physical injury to another, with the level of risk that qualified as "serious" being identified with reference to the level of risk involved in the enumerated offenses (burglary, arson, extortion, or a crime involving the use of explosives). Id.

         The Court concluded that this way of analyzing the residual clause "combin[ed] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony." Id. at 2558. That is, it was unclear both how to identify the "ordinary case" of a crime and how much risk of physical injury to another counted as a "serious potential risk." This compounded indeterminacy "both denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges." Id. at 2557. The residual clause thereby contravened a central component of due process: "[t]he prohibition of vagueness in criminal statutes, " id. at ...


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