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Media Alerts - United States v. Brown -- Fourth Circuit
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October 30, 2017
  United States v. Brown -- Fourth Circuit
Walks like a Duck, Talks like a Duck? Not for Mandatory Sentencing Guidelines Challenges Under Johnson

Areas of Law: Criminal Procedure, Habeas Corpus

Areas of Law: Criminal, Post-Conviction

Issue Presented: Whether the Supreme Court's decision in Johnson v. United States, which ruled the ACCA's residual clause void for vagueness, justified a habeas challenge to a sentence imposed under the then-mandatory sentencing guidelines.

Brief Summary: Petitioner Thilo Brown filed a § 2255 motion to vacate his sentence. That sentence had been imposed in 2003 pursuant to the pre-Booker, mandatory sentencing guidelines. The guidelines Petitioner was sentenced under contained language identical to another sentencing provision the Supreme Court had declared void for vagueness in 2015. See Johnson v. United States, 153 S. Ct. 2551 (2015). Relying upon Johnson, Petitioner challenged his sentence. Addressing the threshold matter of timeliness, Petitioner argued that his claim relied on the newly-recognized right from Johnson. The United States Court of Appeals for the Fourth Circuit held that Petitioner's claim was untimely because it did not fall within the ambit of the right newly recognized in Johnson. Thus, the Fourth Circuit affirmed the United States District Court for the District of South Carolina.

Extended Summary: Petitioner Thilo Brown pleaded guilty to drug and firearm related offenses in the United States District Court for the District of South Carolina in 2003. At sentencing, the District Court designated Petitioner a "career offender" based on two prior convictions that were deemed "predicates" justifying enhanced sentencing. Petitioner did not appeal.

Twelve years after Brown's conviction and sentence, the Supreme Court of the United States analyzed the constitutionality of the Armed Career Criminal Act's ("ACCA") residual clause. Johnson v. United States, 153 S. Ct. 2551 (2015). That clause, in conjunction with other language in the Act, provided enhanced penalties for people convicted of crimes "otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another." Though Brown was not sentenced under the ACCA, the language of the ACCA's residual clause was identical to the language in the mandatory guidelines that had been used to define Petitioner's relevant "predicates," and thus subject Petitioner to enhanced punishment.

Petitioner filed a § 2255 motion to vacate his sentence. Petitioner, through his motion, argued that he was improperly sentenced as a career offender because Johnson invalidated not only the ACCA's residual clause, but also like-worded sentencing clauses. The District Court denied Petitioner's motion with prejudice and declined to issue a certificate of appealability. The Fourth Circuit granted petitioner's certificate of appealability to decide whether, in light of Johnson, Petitioner was properly designated a "career offender."

As a threshold matter, the Fourth Circuit analyzed whether Petitioner's motion was timely. The court explained that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally imposes a one-year period for filing a § 2255 motion after a federal inmate's conviction has become final. Courts may, however, consider a § 2255 motion filed outside of that one year period if the motion is filed within one year of the Supreme Court recognizing a new right that applies to the inmate. Petitioner argued that his motion was timely filed because the Johnson decision recognized a new right that applied to him. Acknowledging that Johnson technically referenced only the ACCA, Petitioner argued that its holding applied to him because 1) Johnson recognized a defendant's due process right to be free from arbitrary sentencing provisions, 2) the Supreme Court had distinguished mandatory and advisory sentencing guidelines in United States v. Booker, 543 U.S. 220 (2005), and 3) Beckles v. United States, 137 U.S. 886 (2017), which rejected the application of Johnson to sentences imposed under advisory guidelines, left sentences imposed under the mandatory sentencing guidelines open to challenge.

The Fourth Circuit rejected Petitioner's contention. Constrained by AEDPA's language, the court explained that a right could not be newly recognized as applying to a litigant if the right could only be said to leave the litigant's claim open. Additionally, looking to Beckles, the Fourth Circuit reasoned that "quacking like the ACCA" is not enough to bring a challenge within the purview of the right recognized by Johnson." In Johnson, according to the Fourth Circuit, the Supreme Court only rendered the ACCA's residual clause unconstitutionally vague - it did not opine on similar language in the mandatory sentencing guidelines. Thus, the Fourth Circuit concluded that the Supreme Court has not recognized Petitioner's claimed right. The court held that Petitioner's claim was therefore untimely, and affirmed the District Court's ruling.

Chief Judge Gregory, in his dissent, explained that the Fourth Circuit should not have constrained itself to the four corners of the Supreme Court's Johnson opinion. Rather, in Chief Judge Gregory's view, the court should have understood the right in Johnson to include the reasoning and principles that explain it. According to the Chief Judge, the fact that the clause Petitioner challenged was derived from the mandatory sentencing guidelines rather than the ACCA was a distinction without a difference. He concluded that Petitioner's claim was timely because Petitioner asserted the right newly recognized in Johnson.

To read the full opinion, click here.

Panel: Chief Judge Gregory, and Judges Duncan and Diaz

Argument Date: 05/11/2017

Date of Issued Opinion: 09/21/2017

Docket Number: No. 16-7056

Decided: Affirmed by published opinion.

Case Alert Author: Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: Alicia Vachira Penn, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. William Camden Lewis, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, Columbia, South Carolina, Marshall Taylor Austin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Duncan

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 09:14 AM     4th Circuit  

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