United States District Court, D. Nevada
M. Navarro, District Judge United States District Court
before the Court is Petitioner Charles Dylan Kay’s
(“Petitioner”) Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF Nos. 34, 38). The
Government filed a Response, (ECF No. 40), and Petitioner
filed a Reply, (ECF No. 43). For the reasons discussed below,
Petitioner’s 2255 Motion is DENIED.
April 1, 2003, Petitioner pleaded guilty, without the benefit
of a plea agreement, to one count of federal bank robbery in
violation of 18 U.S.C. § 2113(a). (Change of Plea at 1,
ECF No. 12). In preparation for sentencing, a presentence
investigation report (“PSR”) was prepared.
(Id. at 2). The PSR recommended a “career
offender” enhancement under the United States
Sentencing Guidelines (U.S.S.G.), finding, inter
alia, that the instant bank robbery offense, as well as
his prior federal felony conviction for armed bank robbery,
and state felony convictions for conspiracy to commit robbery
and homicide were “crimes of violence, ” as
defined in U.S.S.G. § 4B1.2. (PSR at 6–8, 14). On
July 11, 2003, Petitioner’s sentencing hearing, (ECF
No. 18), was held. The court concluded that Petitioner
qualified as a career offender under the Guidelines, and
sentenced Petitioner to a term of 188 months’
imprisonment. (J., ECF No. 19); (Sentencing Tr.
17:8–19:7, Ex. A to Pet’r’s 2255 Mot., ECF
No. 38-1). Without the career offender enhancement,
Petitioner’s guideline range for the federal bank
robbery conviction would have been 57 to 71 months. (PSR at
5, 9, 12); (see also Statement of Reasons).
22, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
34), followed by a comprehensive 2255 Motion, (ECF No. 38),
on December 22, 2016. Petitioner contends that the instant
bank robbery offense and prior convictions used to enhance
his sentence no longer constitute crimes of violence after
the Supreme Court’s decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). (See 2255 Mot.
3:2–5, ECF No. 38). In Johnson, the Supreme
Court ruled that the residual clause of the Armed Career
Criminal Act (ACCA) was unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. Petitioner accordingly
points to the language in U.S.S.G § 4B1.2(a)’s
residual clause, which is identical to the ACCA’s
residual clause, for the proposition that the statutory
provisions, and any sentences imposed under them, are
invalid. (See 2255 Mot. 6:9–8:8).
Government responds that Johnson does not apply
retroactively to Sentencing Guidelines challenges on
collateral review. (Resp. 4:13–11:7, ECF No. 40).
Further, the Government argues that even if the Guidelines
were subject to vagueness challenges under Johnson,
Petitioner’s sentence would not be affected because
Petitioner’s instant and prior convictions qualify as
crimes of violence without resort to U.S.S.G. §
4B1.2(a)’s residual clause. (Id.
to the filing of Petitioner’s 2255 Motion, the U.S.
Supreme Court entered its decision in Beckles v. United
States, 137 S.Ct. 886 (2017). Beckles held that
Johnson does not apply to sentences imposed under
the advisory U.S. Sentencing Guidelines. Beckles,
137 S.Ct. at 890, 894. The Supreme Court concluded that,
because the Guidelines “merely guide the exercise of a
court’s discretion in choosing an appropriate sentence
within the statutory range, ” they are not subject to
void-for-vagueness challenges. Id. at 892. In light
of Beckles, this Court allowed the parties to submit
supplemental briefing. (Order at 4, ECF No. 45).
Petitioner’s Supplemental Brief, (ECF No. 46),
Petitioner argues that Beckles does not foreclose
his 2255 Motion because Beckles focused on the
discretionary nature of the advisory Sentencing Guidelines,
and Petitioner was sentenced in 2003-when the Guidelines were
mandatory, not advisory. (Pet’r ’s Suppl. Br.
5:16–17, ECF No. 46).
to the filing of the parties’ supplemental briefing,
the Ninth Circuit issued its decision in United States v.
Blackstone, 903 F.3d 1020, 1028–29 (9th Cir.
2018), cert. denied, 139 S.Ct. 2762 (2019). As
pertinent to this case, Blackstone held that
“Johnson did not recognize a new right
applicable to the mandatory Sentencing Guidelines on
collateral review.” Blackstone, 903 F.3d at
1023, 1028 (“The Supreme Court has not held that the
mandatory Sentencing Guidelines are subject to this vagueness
challenge. As a result, [the petitioner’s] current
motion is not timely under the statute.”). This Order
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed the sentence to vacate,
set aside, or correct the sentence. See 28 U.S.C.
§ 2255(a). Such a motion may be brought on the following
grounds: “(1) the sentence was imposed in violation of
the Constitution or laws of the United States; (2) the court
was without jurisdiction to impose the sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral
attack.” Id.; see United States v.
Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). Generally,
motions pursuant to § 2255 must be filed within one year
from “the date on which the judgment of conviction
becomes final.” 28 U.S.C. § 2255(f)(1). However,
the statute also authorizes filing within one year of
“the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” Id.
asserts that his 2255 Motion, filed on June 22, 2016, is
timely pursuant to § 2255(f)(3) because it was filed
within one year of the Supreme Court’s decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which was issued on June 26, 2015. (2255 Mot. 4:11–20,
ECF No. 38). According to Petitioner, the Supreme Court
recognized a new right in Johnson and announced a
substantive rule that is therefore retroactive to cases on
collateral review. (Id. 4:21–6:8).
Johnson, the Supreme Court struck down the residual
clause of the Armed Career Criminal Act (ACCA) as
unconstitutionally vague. Johnson, 135 S.Ct. at
2557. The statutory provision at issue in Johnson,
18 U.S.C. § 924(e), requires a sentencing court to
impose a mandatory 15-year minimum sentence for a conviction
under 18 U.S.C. § 922(g), which prohibits felons and
other designated persons from possessing firearms, when the
defendant has three or more prior convictions for a