DARNELL A. MOORE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
FOR LEAVE TO FILE A SECOND OR SUCCESSIVE MOTION UNDER 28
U.S.C. § 2255
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.
Thompson, Kayatta, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
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.
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.
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
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."
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. 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.
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.
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
[T]he term "violent felony" means any crime
punishable by imprisonment for a term exceeding one year . .
(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).
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.
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