United States District Court, D. Massachusetts
MEMORANDUM & ORDER
WILLIAM G. YOUNG DISTRICT JUDGE.
A. Moore ("Moore") filed a petition under 28 U.S.C.
§ 2255 to vacate and correct his sentence pursuant to
Johnson v. United States, 135
S.Ct. 2551 (2015). Suppl. Mot. Correct Sentence
("Def.'s Mot.") 1, ECF No. 107. This Court held
that Moore's petition fell under the second and
successive bar. The Court of Appeals for the First Circuit
granted certification to Moore's petition, however, and
ordered the district court to redo its original analysis.
Moore v. United States, 871 F.3d
72, 85 (1st Cir. 2017) (citing 28 U.S.C. § 2244(b)(4)).
argues that since applicable case law renders improper his
categorization and sentencing as a career offender pursuant
to section 2K2.1(a)(2) of the United States Sentencing
Guidelines PU.S.S.G." or the "Guidelines"), he
ought be resentenced. Def.'s Mot. 1.
filed his section 2255 petition in June 2016, Mot. Correct
Sentence, ECF No. 97, which was within one year of the
Supreme Court's June 2015 decision in Johnson
v. United States, 135 S.Ct. 2551 (2015),
and therefore within the one-year statute of limitations for
filing a habeas corpus petition. See 28 U.S.C.
asked the First Circuit to apply the new rule of
constitutional law announced in Johnson directly to
the Sentencing Reform Act of 1984
("SRA"). Moore, 871 F.3d at 80. In
considering this issue, the First Circuit explained that the
pre-Booker SRA "made the Guidelines binding on
district judges" and that the Supreme Court has
"consistently held that the Guidelines have the force
and effect of laws." Id. at 81 (quoting
United States v. Booker, 543 U.S.
220, 233-34 (2005) (opinion of Stevens, J.)). The First
Circuit continued that, while the SRA and Booker do
not use the term "fix" to describe the effect of
the mandatory Guidelines on sentences, "a statute found
to 'bind' in Booker necessarily
'fix[es]' under Johnson . . . ."
Moore, 871 F.3d at 81-82 (alteration in original).
SRA, the First Circuit explained, also used the same language
as the Armed Career Criminal Act's residual clause to
provide the standard by which this Court fixed Moore's
sentence. Id. at 82. Moreover, the First Circuit
agreed that "[t]he residual clause of the career
offender guideline is identical to the residual clause of
[the Armed Career Criminal Act]." Id. at 80
n.5. "The two clauses have also been interpreted in the
same way." See id. (citing United
States v. Ramirez, 708 F.3d 295,
305-07 (1st Cir. 2013); United States v.
Giggey, 551 F.3d 27, 38-41 (1st Cir. 2008)).
First Circuit thus ultimately granted Moore the certification
he requested. See id. at 74. They certified 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." Id.
(alteration in original) (citing 28 U.S.C. § 2255(h)).
The First Circuit left it up to this Court to "redo the
very analysis performed [by it in its] opinion before
entertaining a successive § 2255 motion."
Id. at 85.
motion, Moore argues that the new rule Johnson
created invalidates the residual clause of the career
offender guideline applied at his sentencing - which occurred
before Booker made the guidelines advisory.
Def.'s Mot. 25; see Booker, 543 U.S. at 245
(opinion of Breyer, J.).
Beckles v. United States, 137
S.Ct. 886, 897 (2017), where the Supreme Court limited its
decision to sentences imposed under the advisory guidelines,
there are two other cases in this District that consider the
constitutionality of the residual clause in the career
offender guidelines as applied pre-Booker.
Roy, 282 F.Supp.3d at 425-27; Reid
v. United States, 252 F.Supp.3d 63, 66-68
(D. Mass. 2017) (Ponsor, J.). In each, the district court
held that the residual clause violated the Due Process Clause
and allowed the petitioner's motion to correct his
sentence. Roy, 282 F.Supp.3d at 427-28;
Reid, 252 F.Supp.3d at 66, 68. The court in
Reid emphasized that "Beckles itself
makes clear that its holding does not govern sentences
imposed under the non-advisory, pre-Booker
sentencing regime, and . . . the logic of the
Johnson decisions makes them fully applicable in a
pre-Booker, mandatory Guidelines context.''
252 F.Supp.3d at 64. The court in Roy also observed
that "Beckles does not preclude application of
Johnson to the residual clause of the career
offender guideline." Roy, 282 F.Supp 3d at 427.
was sentenced in 2002, Electronic Clerk's Notes, ECF No.
63, under guidelines that "the pre-Booker SRA
made binding ... on judges, making them vulnerable to
vagueness challenges under the rule adopted in
Johnson." See Roy, 282 F.Supp.3d at
428. As did my colleagues in Roy and Reid,
this Court holds the pre-Booker career offender
guideline void for vagueness.
far the analysis is in Moore's favor, but the government
has one final arrow in its quiver. Before Moore's
sentencing, the government filed a motion under Guidelines
section 5K1.1, ECF No. 69, which permits the Court to
sentence below the low end of the Guidelines if the
Government files a "'substantial assistance"
motion (as it did here) . See Wade v.
United States, 504 U.S. 181, 182-83 (1992)
(observing that section 5K1.1 "permits district courts
to go below the minimum required under the Guidelines if the
Government files ... a motion."); United States
v. Mariano, 983 F.2d 1150, 1155 (1st Cir.
1993) (same). Thus, the government argues that under
Beckles, in the particular circumstances of this
case, the career offender residual clause, identical to that
in the ACCA, is "not subject to a vagueness challenge
under the Due Process Clause" because here the
"Guidelines do not fix the permissible range of
sentences." Gov. Opp'n Def. Suppl. Mot. Correct
Sentence ("Gov. Opp'n") 3, 7, ECF No. 116
(internal citations and quotations omitted) (citing
Beckles, 137 S.Ct. at 892).
sophistry, pure and simple. We must always remember that the
oxymoronic mandatory guidelines had the force of law and that
law was unconstitutional. Booker, 543 U.S. at 226-27
(opinion of Stevens, J.). For 17 years I - along with every
other federal judge -- imposed sentences on offenders that
today would be unconstitutional. No. more.
had some discretion concerning the sentence to be imposed on
Moore. But that had always been the case. Even the mandatory
guidelines had an upper and lower limit. The filing of the
motion under section 5K1.1 did nothing more than potentially
lower the bottom limit. What's more, the government's
argument altogether ignores the very real phenomenon of
"anchoring," i.e. the effect of the guidelines
themselves on particularized sentencing decisions.
Hughes v. United States, 138 S.Ct.
1765, 1775 (2018); see also Molina-Martinez
v. United States, 136 S.Ct. 1338, 1349
(2016) (determining that the Guidelines "serve as the
starting point for the district court's decision and
anchor the court's discretion in selecting an appropriate
sentence."); Peugh v. United
States, 569 U.S. 530, 541 (2013) ("The
post-Booker federal sentencing scheme aims to
achieve uniformity by ensuring that sentencing decisions are
anchored by the Guidelines and that they remain a meaningful
benchmark through the process of appellate review.");
In re Clayton, 829 F.3d 1254, 1259-60 (11th Cir.
2016); United States v. Ingram,
721 F.3d 35, 40 (2d Cir. 2013) (Calabresi, J., concurring);
United States v. Turner, 548 F.3d
1094, 1099 (D.C. Cir. 2008).
I declined to depart downwards from the guidelines range on
the government's 5K1.1 motion because Moore failed to
appear at his original sentencing hearing. Statement of
Reasons 4, ECF No. 65. I thus sentenced Moore without any
regard to the 5K1.1 motion at all. The unconstitutional
career offender guideline, then, not only anchored my
decision, but also fully informed the sentence that I imposed