throbber
8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 1 of 18 - Page ID # 100
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
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`8:13CR343
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`MEMORANDUM AND ORDER
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`Defendant.
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`vs.
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`LARON HAWKINS,
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`This matter is before the court on the defendant's motion to vacate, set aside or
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`correct his sentence under 28 U.S.C. § 2255, Filing No. 38. This is Hawkins's first §
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`2255 motion. The court held a hearing on the motion on June 22, 2016.
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`I.
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`BACKGROUND
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`Hawkins entered a plea of guilty to a charge of being a felon in possession of a
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`firearm, in violation of 18 U.S.C. § 922(g) and was sentenced to a term of imprisonment
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`of 75 months, concurrent to the 12 month sentence he received in Case No. 8:11CR400
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`for a violation of supervised release. Filing No. 35, Judgment. His sentence was
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`enhanced under U.S.S.G. §§ 2K2.1 and 4B1.2(a)(2) for a felony conviction for a crime
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`of violence, that is, burglary. See Filing No. 33, Presentence Investigation Report
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`(sealed) ("PSR") at 5.
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`The record shows that, in the PSR, the Probation Office calculated the
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`defendant's base offense level to be 20 under U.S.S.G. § 2K2.1(a)(4)(A) for committing
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`the offense subsequent to sustaining one felony conviction of either a crime of violence,
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`burglary, plus a two-level increase for possession of a stolen weapon under U.S.S.G.
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`2K2.1(b)(4), less three levels for acceptance of responsibility under U.S.S.G. § 3E1.1,
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`8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 2 of 18 - Page ID # 101
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`for a total offense level of 19. Filing No. 33, PSR at 5. Based on the assessment of 13
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`criminal history points, he was found to have a criminal history category of VI, resulting
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`in a sentencing range of 63 to 78 months. Id. at 4-11, 15. He was also charged with a
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`violation of supervised release in Case No. 8:11CR400 and was sentenced to a
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`concurrent term of 12 months for the violation. United States v. Hawkins, No.
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`8:11CR400, Filing No. 66, Amended Judgment.
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`Absent the enhancement for committing the offense after a conviction for a
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`violent felony, the defendant's Guidelines total offense level would have been 13
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`(representing a base offense level of 14 under U.S.S.G. 2K2.1(a)(6), plus 2 for a stolen
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`weapon under U.S.S.G. 2K2.1(b)(4), less 3 for acceptance of responsibility under
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`U.S.S.G. 3E1.1) resulting in a Guidelines sentencing range at criminal history category
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`VI of 33 to 41 months. The defendant has been in custody since October 2, 2013, and
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`has served close to 33 months. Filing No. 9, arrest warrant returned executed
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`(restricted).
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`The defendant seeks relief under Johnson v. United States, 135 S. Ct. 2551
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`(2015). In Johnson, the Supreme Court held that imposing an increased sentence
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`pursuant to the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §
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`924(e)(2)(B)(ii), violates due process under the Fifth Amendment. Johnson, 135 S. Ct.
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`at 2563. The ACCA provides three definitions of a “violent felony.” 18 U.S.C. §
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`924(e)(2)(B). It refers to any offense that “has as an element the use, attempted use, or
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`threatened use of physical force against the person of another.” 18 U.S.C. §
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`924(e)(2)(B)(i) (the “elements clause” or "force clause"). It also covers any offense that
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`“is burglary, arson, or extortion, involves use of explosives, or otherwise involves
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`2
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`conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §
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`924(e)(2)(B)(ii). The first 9 words of that subsection are called the “enumerated crimes
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`clause,” and the last 13 are called the “residual clause.” See id. The Supreme Court
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`found the residual clause unconstitutionally vague, but did not invalidate the elements
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`clause or the enumerated crimes of the ACCA's definition of a violent felony. Johnson,
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`135 S. Ct. at 2563. The Guidelines definition of a crime of violence contains the same
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`definitions. U.S.S.G. § 4B1.2(a)(1) & (2). The decision in Johnson was given
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`retroactive effect on collateral review by the Supreme Court. Welch v. United States,
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`136 S. Ct. 1257, 1265 (April 18, 2016).
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`Hawkins contends that he was sentenced improperly under the Guidelines
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`career-offender provisions, arguing that his conviction for burglary no longer qualifies,
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`post-Johnson, as a “crime of violence” under either the residual or the force clauses,
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`and also does not equate to the enumerated offense of generic burglary under this
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`court's precedent.1 The government has conceded that Johnson applies to both ACCA
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`and Guidelines sentences pending on direct appeal, and to initial collateral attacks on
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`ACCA-enhanced sentences. See Filing No. 41, Government Brief at 3-4. The
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`government argues, however, that the Johnson decision is not retroactive with respect
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`to a collateral challenge to a Guidelines-enhanced sentence. Id. at 4. It contends that
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`"Johnson is retroactive in ACCA cases because the defendant is subjected to a
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`punishment that the law does not allow" and is "not retroactive in Guidelines cases
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`1 See, e.g., United States v. Cornejo-Lopez, No. 8:15CR46, 2015 WL 7274060, at *7 (D. Neb.
`Nov. 17, 2015) (burglary does not qualify as a predicate offense under the enumerated crimes clause);
`United States v. Richards, No. 8:13CR371, 2014 WL 6686783, at *11 (D. Neb. Nov. 26, 2014) (attempted
`burglary does not qualify as a predicate offense under the enumerated crimes clause).
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`3
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`because in every Guidelines case the sentence imposed was within the statutory
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`maximum and the possibility exists that at resentencing the same sentence could be
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`imposed as a reasonable sentence under 18 U.S.C. § 3553(a)." Id. Thus, it argues that
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`"the rule announced in Johnson is procedural when applied to collateral attacks of
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`Guideline sentences and therefore not retroactive." Id. Alternatively, if the court finds
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`Johnson applicable to a challenged Guidelines sentence, the government seeks to
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`reopen the sentencing for a determination of whether burglary is a crime of violence as
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`an enumerated crime under the Guidelines provision. It argues for application of the
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`modified categorical approach to determine whether Hawkin's conviction for burglary
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`matched the elements of the generic crime.2
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`II.
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`LAW
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`The court must first determine whether the Johnson holding is applicable to the
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`Guidelines career-offender provision, which is identical to the ACCA provision that was
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`invalidated in Johnson, and if so, whether the new substantive rule announced in
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`Johnson can be retroactively applied on collateral review in a case involving a challenge
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`to a Guidelines-enhanced sentence. Second, the court must determine whether a
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`conviction for burglary under Nebraska law is a crime of violence.
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`A.
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`Section 2255 standards
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`Under 28 U.S.C. § 2255, a court may grant relief to a federal prisoner who moves
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`to vacate, set aside or correct his sentence on any of the following grounds: (1) that the
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`sentence was imposed in violation of the Constitution or laws of the United States; (2)
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`2 As discussed infra at 13-15, that argument is foreclosed by the Supreme Court's decision in
`Mathis v. United States, No. 15-6092, 2016 WL 3434400, at *3 (June 23, 2016).
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`4
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`that the court was without jurisdiction to impose such sentence; (3) that the sentence
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`was in excess of the maximum authorized by law; or (4) that the sentence is otherwise
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`subject to collateral attack. 28 U.S.C. § 2255(a). 28 U.S.C. § 2255 provides a person
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`in federal custody with a limited opportunity to collaterally attack the constitutionality,
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`jurisdictional basis, or legality of his sentence. See United States v. Addonizio, 442
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`U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a
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`narrow range of injuries which were outside a direct appeal and which, if untreated,
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`would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d
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`817, 821–22 (8th Cir.1987).
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`The harmless error standard of review applies to § 2255 motions. United States
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`v. Clay, 720 F.3d 1021, 1027 n.5 (8th Cir. 2013). Under that standard, a constitutional
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`error does not require reversal of conviction unless the petitioner can show that the
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`error was of such magnitude as to have a substantial and injurious effect or influence on
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`the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
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`“When a defendant is sentenced under an incorrect Guidelines range—whether or not
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`the defendant's ultimate sentence falls within the correct range—the error itself can, and
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`most often will, be sufficient to show a reasonable probability of a different outcome
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`absent the error” and can be relied upon by a defendant to show an effect on his
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`substantial rights. Molina-Martinez v. United States, 136 S. Ct. 1338, 1345, 1349
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`(2016) (involving an unpreserved error on direct appeal); see United States v.
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`Robinson, No. 15-1697, 2016 WL 3407698, at *2 (8th Cir. June 21, 2016) (finding a
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`reasonable probability that absent the error the defendant would have received a
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`5
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`shorter sentence, and concluding that the error would seriously affect the fairness,
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`integrity, or public reputation of judicial proceedings).
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`B.
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`Constitutionality of Guidelines Residual Clause
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`"Since Johnson, federal courts have grappled with the unresolved question of
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`whether the Guidelines' residual clause is also unconstitutionally vague." United States
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`v. Pawlak, No. 15-3566, 2016 WL 2802723, at *3 (6th Cir. May 13, 2016). "Whether an
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`advisory sentencing guideline is susceptible to a vagueness challenge is an open
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`question in this circuit." Donnell v. United States, No. 15-2581, 2016 WL 3383831, at *1
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`(8th Cir. June 20, 2016); see United States v. Ellis, 815 F.3d 419, 421 (8th Cir. 2016);
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`United States v. Taylor, 803 F.3d 931, 932 (8th Cir. 2015) (acknowledging that the
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`Court's “reasoning in Wivell [v. United States, 893 F.2d 156, 159 (8th Cir. 1990)] that the
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`Guidelines cannot be unconstitutionally vague . . . is doubtful after Johnson,” but leaving
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`it to the district court to decide in the first instance on remand whether the Guidelines'
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`residual clause is unconstitutional).
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`Several circuits have held that the rationale expressed in Johnson with respect to
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`the ACCA provision is equally applicable to the Guidelines. See United States v.
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`Pawlak, No. 15-3566, 2016 WL 2802723, at *4 (finding Johnson's rationale applies with
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`equal force to the Guidelines' residual clause); United States v. Madrid, 805 F.3d 1204,
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`1211 (10th Cir. 2015) (holding that Johnson renders the Guidelines' residual clause
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`unconstitutionally vague); United States v. Harbin, 610 Fed. App'x 562 (6th Cir. 2015)
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`(Mem.) (unpublished opinion) (finding that offenders sentenced under the residual
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`clause of the Guidelines are "entitled to the same relief as offenders sentenced under
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`the residual clause of the ACCA"); United States v. Townsend, No. 14-3652, 2015 WL
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`6
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`8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 7 of 18 - Page ID # 106
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`9311394, at *4 & n.14 (3d Cir. Dec. 23, 2015) (same). Other courts have accepted the
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`government's concession that Johnson applies, or proceeded on the assumption that it
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`does, and remanded for resentencing. See, e.g., United States v. Soto-Rivera, 811
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`F.3d 53, 59 (1st Cir. 2016); United States v. Welch, Nos. 12–4402–CR (L), 12–5004–
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`CR (Con), 2016 WL 536656 (2d Cir. Feb. 11, 2016) (summary order); United States v.
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`Benavides, 617 Fed. App'x 790, 790 (9th Cir. 2015); Ramirez v. United States, 799 F.3d
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`845, 856 (7th Cir. 2015) (proceeding on the assumption that the Supreme Court's
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`reasoning applies to section 4B1.2 as well); United States v. Maldonado, No. 12–3487–
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`cr, 2016 WL 229833, at *3 (2d Cir. Jan. 20, 2016) (proceeding “on the assumption that
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`the Supreme Court's reasoning with respect to the ACCA's residual clause applies to
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`the identically worded Guideline § 4B1.2(a)(2)'s residual clause”) . Only one circuit has
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`affirmatively held that the Guidelines are not affected by Johnson. United States v.
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`Matchett, 802 F.3d 1185, 1193–96 (11th Cir.2015) (holding that the Guidelines are not
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`susceptible to vagueness challenges and declining to invalidate § 4B1.2(a)(2)).3 The
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`Supreme Court has recently granted certiorari on the issue of whether Johnson renders
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`the Guidelines’ residual clause void for vagueness, such
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`that Johnson-based
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`challenges in that context are cognizable in § 2255 proceedings as well as whether
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`Johnson applies retroactively to sentences enhanced under the Guidelines’ residual
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`clause. Beckles v. United States, No. 15-8544, 2016 WL 1029080 (June 27, 2016).
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`3 That decision relied on United States v. Tichenor, 683 F.3d 358, 364 (7th Cir. 2012) and United
`States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990)). See Matchett, 802 F.3d at 1194-95. The Eighth
`Circuit has acknowledged that Wivell is no longer good law. See Taylor, 803 F.3d at 933. Tichenor was
`decided before the Supreme Court rejected the notion that the Guidelines were merely “guideposts” that
`lacked the “force and effect of laws,” explaining that the Guidelines “anchor both the district court's
`discretion and the appellate review process.” Peugh v. United States, 133 S. Ct. 2072, 2085-87 (2013).
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`7
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`The court agrees with those courts that have either held or assumed that
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`Johnson makes language in § 4B1.2(a)(2) that is identical to that in the ACCA unlawful.
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`See Pawlak, No. 15-3566, 2016 WL 2802723, at *8; Madrid, 805 F.3d at 1211;
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`Townsend, No. 14-3652, 2015 WL 9311394, at *4. In Johnson, the Supreme Court
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`held that the language—“otherwise involves conduct that presents a serious potential
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`risk of physical injury to another”—was “hopelessly indeterminate” and “vague in all its
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`applications.” Johnson, 135 S. Ct. at 2561. "The Johnson Court observed that '[t]wo
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`features of the residual clause conspire to make it unconstitutionally vague': first, the
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`clause 'leaves grave uncertainty about how to estimate the risk posed by a crime' by
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`tying 'the judicial assessment of risk to a judicially imagined "ordinary case" of a crime,
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`not to real-world facts or statutory elements'; and second, it 'leaves uncertainty about
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`how much risk it takes for a crime to qualify as a violent felony.'" Pawlak, No. 15-3566,
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`2016 WL 2802723, at *2 (quoting Johnson, 135 S. Ct. at 2557-58). Specifically, the
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`Court concluded that the “residual clause . . . invites arbitrary enforcement by judges”
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`and thus “[i]ncreasing a defendant's sentence under the clause denies due process of
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`law.” Johnson, 135 S. Ct. at 2557. The Guidelines are subject to constitutional
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`challenge “notwithstanding the fact that sentencing courts possess discretion to deviate
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`from the recommended sentencing range.” Peugh v. United States, 133 S. Ct. 2072,
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`2082 (2013) (finding "[a] retrospective increase in the Guidelines range applicable to a
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`defendant creates a sufficient risk of a higher sentence to constitute an ex post facto
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`violation.”).
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`"[T]he identical language of the Guidelines' residual clause implicates the same
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`constitutional concerns as the ACCA's residual clause." Pawlak, No. 15-3566, 2016 WL
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`8
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`8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 9 of 18 - Page ID # 108
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`2802723, at *8. "[T]he void-for-vagueness doctrine derives from" the Due Process
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`notice requirement "that the law inform the public of what conduct is prohibited and the
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`consequences of such conduct (“ex ante notice”)," rather than the separate Due
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`Process requirement, even if the law clearly notifies the public of prohibited conduct,
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`that the government "provide a defendant with notice of the allegations and an
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`opportunity to respond (“adversarial notice”)." Id. It is with respect to the second
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`category that there are arguable distinctions between advisory Guidelines provisions
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`and statutory provisions. Cf. Irizarry v. United States, 128 S. Ct. 2198, 2199 (2008)
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`(under advisory Guidelines, neither the government nor the defendant may place the
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`same degree of reliance on the type of expectancy that gave rise to due process
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`concerns and a special need for notice under the mandatory Guidelines).
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`Also, the prohibition against Ex Post Facto laws involved in Peugh, 133 S. Ct. at
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`2085, and the due process prohibition against vague criminal statutes involved in
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`Johnson, 135 S. Ct. at 2556-57, are both concerned with fair warning and the applicable
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`rules of law. See Johnson, 135 S. Ct. at 2556-2557 (“The prohibition of vagueness . . .
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`‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and
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`the settled rules of law[.]”’) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391
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`(1926)); Peugh, 133 S. Ct. at 2085 (“The [Ex Post Facto] Clause ensures that
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`individuals have fair warning of applicable laws . . . .”). Just as the Constitution prohibits
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`imposing a harsher sentence based on a guideline that has changed after the crime,
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`Peugh, 133 S. Ct. at 2088, it also prohibits imposing a harsher sentence based on a
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`guideline that is so vague that its application is both unpredictable and arbitrary. See
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`Johnson, 135 S. Ct. at 2557. “Given [the] reliance on the ACCA for guidance in
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`9
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`interpreting § 4B1.2, it stretches credulity to say that [the Court] could apply the residual
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`clause of the Guidelines in a way that is constitutional, when courts cannot do so in the
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`context of the ACCA.” Madrid, 805 F.3d at 1211 (stating that "if one iteration of the
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`clause is unconstitutionally vague, so too is the other”).4 In short, the court agrees with
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`the rationale of the cases stating that Johnson's holding applies to a Guidelines
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`enhanced sentence.
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`C.
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`Retroactivity5
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`The Supreme Court's "decision in Welch [v. United States, 136 S. Ct. 1257,
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`1265-66 (2016)] declared unequivocally that Johnson was 'a substantive decision and
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`so has retroactive effect under Teague in cases on collateral review.'" In re Hubbard,
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`No. 15-276, 2016 WL 3181417, at *6 (4th Cir. June 8, 2016) (quoting Welch, 136 S. Ct.
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`at 1265). The court is not aware of any case that supports the proposition that a rule
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`can be substantive in one context but procedural in another. See id. Generally, a rule
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`4 In fact, in Johnson, the Supreme Court relied on four lower court decisions that interpreted the
`identical language in § 4B1.2(a)(2) to demonstrate that it "has proved nearly impossible" for the lower
`courts to "mak[e] sense of the residual clause." Johnson, 135 S. Ct. at 2559-60 (analyzing United States
`v. Carthorne, 726 F.3d 503 (4th Cir. 2013), United States v. Whitson, 597 F.3d 1218 (11th Cir. 2010),
`United States v. McDonald, 592 F.3d 808 (7th Cir. 2010), and United States v. Williams, 559 F.3d 1143
`(10th Cir. 2009)). The Supreme Court noted that the "most telling feature" of these decisions was
`"pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of
`factors one is supposed to consider" and stated "[i]nvoking so shapeless a provision to condemn
`someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process."
`Id. at 2560.
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`5 The circuits are split on whether individuals sentenced under identical language in the
`Sentencing Guidelines presenting a Johnson claim have made a sufficient prima facie showing to warrant
`authorization for a second or successive petition. Compare In re Griffin, No. 16-12012-J, 2016 WL
`3002293, at *4 (11th Cir. May 25, 2016) (denying authorization for second § 2255 petition), and In re
`Arnick, No. 16-10328, 2016 WL 3383487, at *1 (5th Cir. June 17, 2016) (denying motion for leave to file a
`successive petition, noting that even if Johnson does implicate Section 4B1.2(a)(2), the Supreme Court
`has not addressed whether this arguably new rule of criminal procedure applies retroactively to cases on
`collateral review); with In re Hubbard, No. 15-276, 2016 WL 3181417, at *2 (4th Cir. June 8, 2016)
`(granting authorization); In re Encinias, No. 16-8038, 2016 WL 1719323, at *2 (10th Cir. April 29, 2016)
`(same). The present case involves an initial § 2255 petition that is not barred as successive.
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`10
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`that is substantive in the statutory context is substantive in the Guidelines context. See
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`Reina–Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011) (holding that the
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`decision that a burglary conviction did not meet the requirements to enhance a
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`defendant's sentence as a career offender was a substantive rule that applied
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`retroactively).
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`“New constitutional rules announced by [the Supreme] Court that place certain
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`kinds of primary individual conduct beyond the power of the States to proscribe, as well
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`as ‘watershed’ rules of criminal procedure, must be applied in all future trials, all cases
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`pending on direct review, and all federal habeas corpus proceedings.” Danforth v.
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`Minnesota, 552 U.S. 264, 266 (2008). In Welch, the Supreme Court "noted that '[b]y
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`striking down the residual clause as void for vagueness, Johnson changed the
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`substantive reach of the Armed Career Criminal Act, altering "the range of conduct or
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`the class of persons that the [Act] punishes.'"" In re Hubbard, No. 15-276, 2016 WL
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`3181417, at *6 (quoting Welch, 136 S. Ct. at 1265).
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`"Johnson is not a procedural decision." Welch, 136 S. Ct. at 1265 (internal citations
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`omitted). "Johnson had nothing to do with the range of permissible methods a court
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`might use to determine whether a defendant should be sentenced under the Armed
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`Career Criminal Act." Id.
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`The court finds that the Welch rationale applies equally to the Guidelines
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`enhancement. See Hubbard, No. 15-276, 2016 WL 3181417, at *7 (authorizing
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`successive § 2255 challenge to 18 U.S.C. § 16(b), as incorporated into the Sentencing
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`Guidelines, “because it is for the district court to determine whether the new rule
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`[announced in Johnson] extends to the movant's case, not for this court in this
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`proceeding”). Johnson is a substantive rule whether a defendant is challenging an
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`ACCA enhancement, a mandatory Guidelines enhancement, or an advisory Guidelines
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`enhancement. See id. Striking down the identically worded and interchangeably
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`interpreted residual clause in the Sentencing Guidelines would alter the range of
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`conduct or the class of persons that the Sentencing Guidelines punishes—"[t]hat is, the
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`'substantive reach' of the Sentencing Guidelines would be altered just as much as was
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`true for the ACCA." Id. If Johnson invalidates the Guidelines provision, "some crimes
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`will no longer fit the Sentencing Guidelines' definition of a crime of violence and will
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`therefore be incapable of resulting in a career-offender sentencing enhancement." Id.
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`(quoting Frazer v. South Carolina, 430 F.3d 696, 704 n.4 (4th Cir. 2005)).
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`The fact that application of the Guidelines enhancement does not alter a
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`statutory sentencing range is of no consequence because "although available
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`sentences are technically controlled by statute, the Sentencing Guidelines hardly
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`represent a mere suggestion to courts about the proper sentences a defendant should
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`receive." Hubbard, No. 15-276, 2016 WL 3181417, at *7. "'The federal system adopts
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`procedural measures intended to make the Sentencing Guidelines the lodestone of
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`sentencing.'" Id. (quoting Peugh v. United States, 133 S. Ct. 2072, 2084, 2088 (2013)
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`(expressly describing the Sentencing Guidelines as “the substantive ‘formula’ used to
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`calculate the applicable sentencing range”); see also Molina–Martinez v. United States,
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`136 S. Ct. 1338, 1345 (2016) (stating “[t]he Guidelines' central role in sentencing means
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`that an error related to the Guidelines can be particularly serious” and noting the real
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`and pervasive effect the Guidelines have on sentencing). “When a defendant is
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`sentenced under an incorrect Guidelines range—whether or not the defendant's
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`8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 13 of 18 - Page ID # 112
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`
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`ultimate sentence falls within the correct range—the error itself can, and most often will,
`
`be sufficient to show a reasonable probability of a different outcome absent the error”
`
`and can be relied upon by a defendant to show an effect on his substantial rights.
`
`Molina-Martinez, 136 S. Ct. at 1345, 1349. "Post-Johnson and Peugh, the fact that the
`
`Guidelines are not mandatory is a distinction without a difference." Pawlak, No. 15-
`
`3566, 2016 WL 2802723, at *4.
`
`
`
`Courts of Appeals have consistently held that other new rules that narrow the
`
`ACCA's residual clause apply retroactively in Guidelines cases. See United States v.
`
`Doe, 810 F.3d 132, 154 & n.13 (3d Cir. 2015) (holding that Begay v. United States, 553
`
`U.S. 137 (2008),6 applies retroactively in Guidelines cases and stating "[u]nder Teague,
`
`either a rule is retroactive or it is not"); Narvaez v. United States, 674 F.3d 621, 625-26
`
`(7th Cir. 2011) (holding that because Begay and Chambers v. United States, 555 U.S.
`
`122 (2009)7 announced substantive rules, those rules apply retroactively in Guidelines
`
`cases); Brown v. Caraway, 719 F.3d 583, 594-95 (7th Cir. 2013) (postconviction
`
`clarification in the law rendering a sentence unlawful is exception to rule that sentencing
`
`errors are not cognizable on collateral review); Reina-Rodriguez v. United States, 655
`
`F.3d 1182, 1189 (9th Cir. 2011) (holding that because its decision limiting the definition
`
`of burglary under the ACCA was substantive, it applies retroactively in Guidelines
`
`
`
`6 In Begay, the Supreme Court found that New Mexico's crime of “driving under the influence” fell
`outside the scope of the ACCA's clause. Begay, 553 U.S. at 148.
`
`7 The Supreme Court found that the Illinois failure-to-report offense did not have as element the
`use, attempted use, or threatened use of physical force, and did not involve conduct presenting a serious
`potential risk of physical injury to another, so as not to qualify as “violent felony” under the ACCA.
`Chambers v. United States, 555 U.S. at 130.
`
`
`
`13
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`

`
`8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 14 of 18 - Page ID # 113
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`
`
`cases); Rozier v. United States, 701 F.3d 681 (11th Cir. 2012) (“The government
`
`concedes, and we take it as a given, that the Supreme Court's” decision interpreting the
`
`ACCA's elements clause “is retroactively applicable” in Guidelines cases.).
`
`
`
`The court finds that Johnson announces a substantive rule that is retroactive to
`
`cases on collateral review. Under Johnson, the defendant's prior state court conviction
`
`for burglary no longer constitutes a “crime of violence” for purposes of the Guidelines'
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`residual clause. Johnson substantively changes the conduct by which federal courts
`
`may enhance the sentence of a defendant under the Guidelines. Thus, Johnson does
`
`not “regulate only the manner of determining the defendant's culpability” like a
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`procedural rule would. Schriro v. Summerlin, 542 U.S. 348, 353 (2004) (a rule is
`
`substantive rather than procedural if it alters the range of conduct or the class of
`
`persons that the law punishes—in contrast, rules that regulate only the manner of
`
`determining the defendant's culpability are procedural). Despite the fact that they are
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`only advisory, the Guidelines remain “the lodestone of sentencing.” Peugh, 133 S. Ct.
`
`at 2084. Hawkins was sentenced using what the Government concedes is an
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`unconstitutional enhancement.
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`
`
`
`
`
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`D. Burglary under Nebraska Law as a Predicate Offense
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`The ACCA and the Guidelines define the term “violent felony” to include any
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`felony, whether state or federal, that “is burglary, arson, or extortion.” 18 U.S.C. §
`
`924(e)(2)(B)(ii); U.S.S.G. 4B1.2(a)(2). "In listing those crimes, [the Supreme Court has]
`
`held, Congress referred only to their usual or (in [the Court's] terminology) generic
`
`versions—not to all variants of the offenses." Mathis v. United States, No. 15-6092,
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`2016 WL 3434400, at *3 (June 23, 2016). "That means as to burglary—the offense
`
`14
`
`

`
`8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 15 of 18 - Page ID # 114
`
`
`
`relevant in this case—that Congress meant a crime 'contain[ing] the following elements:
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`an unlawful or unprivileged entry into . . . a building or other structure, with intent to
`
`commit a crime.'" Id. (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)).
`
`
`
`To determine whether a prior conviction is for generic burglary (or other listed
`
`crime), courts apply what is known as the categorical approach, focusing solely on
`
`whether the elements of the crime of conviction sufficiently match the elements of
`
`generic burglary, while ignoring the particular facts of the case. Id. "A crime counts as
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`‘burglary’ under the Act if its elements are the same as, or narrower than, those of the
`
`generic offense." Id. "But if the crime of conviction covers any more conduct than the
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`generic offense, then it is not an ACCA 'burglary'—even if the defendant's actual
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`conduct (i.e., the facts of the crime) fits within the generic offense's boundaries." Id.
`
`"The comparison of elements that the categorical approach requires is
`
`straightforward when a statute sets out a single (or “indivisible”) set of elements to
`
`define a single crime"—the court lines up that crime's elements alongside those of the
`
`generic offense and sees if they match.8 Id. The key "is elements, not facts."
`
`Descamps v. United States, 133 S. Ct. 2276, 2292 (2013).
`
`
`
`8 "Some statutes, however, have a more complicated (sometimes called “divisible”) structure,
`making the comparison of elements harder." Mathis, 2016 WL 3434400, at *4 (noting that a single statute
`may list elements in the alternative, and thereby define multiple crimes). With reference to those statutes,
`courts need a way to figure out which of the alternative elements listed were integral to the conviction at
`issue. See id. The Supreme Court "approved the 'modified categorical approach' for use with statutes
`having multiple alternative elements." Id. (quoting Shepard v. United States, 544 U.S. 13, 26 (2005).
`Under the modified categorical approach, "a sentencing court looks to a limited class of documents (for
`example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with
`what elements, a defendant was convicted of." Id. "The court can then compare that crime, as the
`categorical approach commands, with the relevant generic offense." Id. If an alternatively phrased law
`does not list multiple elements disjunctively, but instead "enumerates various factual means of committing
`a single element[,]"—i.e., "merely specifies diverse means of satisfying a single element of a single
`crime—or otherwise said, spells out various factual ways of committing some component of the offense,"
`the modified categorical approach is not appropriate. Id. at *4, *8.
`
`15
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`

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`8:13-cr-00343-JFB-TDT Doc # 43 Filed: 06/30/16 Page 16 of 18 - Page ID # 115
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`"Under Nebraska law, 'a person commits burglary if such person willfully,
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`maliciously, and forcibly breaks and enters any real estate or any improvements erected
`
`th

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