United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE UNITED STATES DISTRICT JUDGE
Mario Caldaron-Bruno a/k/a Reynaldo Lopez filed a pro
se motion to vacate, set aside, or correct his federal
sentence under 28 U.S.C. § 2255. See Dkt. No.
2. The government moved to dismiss the motion as time-barred
under 28 U.S.C. § 2255(f), see Dkt. No. 7,
Movant failed to respond to that motion (or otherwise file a
pleading in support of his Section 2255 motion), and the
deadline to do so has passed, see Dkt. No. 4. The
Court GRANTS the motion and
DISMISSES the Section 2255 motion as
time-barred for the following reasons.
September 6, 2000, Movant pleaded guilty to count one of the
second superseding indictment, charging him with conspiracy
to possess with intent to distribute and distribution of a
controlled substance, in violation of 21 U.S.C. § 846.
On April 16, 2001, he was sentenced to 327 months of
imprisonment. See No. 3:00-cr-266-K-23, Dkt. No.
518. Defendant's sentencing range of 262 to 327 months
was driven by his total criminal history score of 13, which
resulted in a Criminal History Category of VI. Thus, Movant
was sentenced as a career offender under the guidelines.
See USSG § 4B1.1. There was no direct appeal.
this-his initial-motion under Section 2255, filed no sooner
than in June of 2016, Movant argues that an enhancement to
his sentence under the guidelines no longer applies in light
of Johnson v. United States, 576 U.S. __, 135 S.Ct.
2551 (2015), and urges that 21 U.S.C. § 841 and §
846 are unconstitutional. His motion, however, is timely only
if Johnson-“a substantive decision [that] has
retroactive effect under Teague[ v. Lane, 489 U.S.
288 (1989), ] in cases on collateral review, ”
Welch v. United States, 578 U.S. __, 136 S.Ct. 1257,
1265 (2016)-applies to his current claims, see 28
U.S.C. § 2255(f)(3).
Standards and Analysis
Johnson, the Supreme Court of the United States held
“that imposing an increased sentence under the residual
clause of the Armed Career Criminal Act” (the
“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii)-which
clause then defined a “violent felony” as
“involv[ing] conduct that presents a serious potential
risk of physical injury to another”-“violates the
Constitution's guarantee of due process, ” 135
S.Ct. at 2563.
out above, Movant did not receive an increased sentence under
the ACCA's residual clause. He instead aims his
Johnson-based challenge at the sentencing
guidelines. But in Beckles v. United States, 580
U.S. __, 137 S.Ct. 886 (2017), the Supreme Court
unequivocally determined that Johnson does not apply
to guidelines- based challenges to sentences imposed under
the advisory-that is, the post-United States v.
Booker, 543 U.S. 220 (2005)-guidelines. See
Beckles, 137 S.Ct. at 892 (“Unlike the ACCA, ...
the advisory Guidelines do not fix the permissible range of
sentences. To the contrary, they merely guide the exercise of
a court's discretion in choosing an appropriate sentence
within the statutory range. Accordingly, the Guidelines are
not subject to a vagueness challenge under the Due Process
Clause.”); see also United States v. Martinez,
682 Fed.Appx. 304, 304 (5th Cir. 2017) (per curiam)
(Beckles “squarely held that the Sentencing
Guidelines are not subject to vagueness challenges under the
Due Process clause.”).
does that Movant was sentenced under the guidelines
pre-Booker make his current motion timely, under
Section 2255(f)(3), because of Johnson.
[Johnson] applies to the mandatory guidelines ... is
an open question.” Raybon v. United States,
867 F.3d 625, 629-30 (6th Cir. 2017) (“Justice Thomas,
writing for the majority, explicitly and repeatedly stated
that the Court was not addressing the pre-Booker,
mandatory Guidelines scheme. And Justice Sotomayor made this
point clear in her concurring opinion (without objection from
the majority): ‘The Court's adherence to the
formalistic distinction between mandatory and advisory rules
at least leaves open the question whether defendants
sentenced to terms of imprisonment before our decision in
[Booker] ... may mount vagueness attacks on their
sentences.'” (citations omitted)).
because “the Supreme Court left open the question of
whether” the right announced under Johnson
applies to the pre-Booker, mandatory sentencing
guidelines, “the Supreme Court has not
‘recognized' that right.” United States
v. Brown, 868 F.3d 297, 302 (4th Cir. 2017). Thus, to
the extent that the timeliness of Movant's claims are
based on that right, those claims cannot be timely under 28
U.S.C. § 2255(f)(3) because this action was filed within
one year from the date Johnson was decided. See
Raybon, 867 F.3d at 630-31 (“Raybon's untimely
motion cannot be saved under § 2255(f)(3) because he
‘is asking for the recognition of a new right by this
court - that individuals have a Constitutional right not to
be sentenced as career offenders under the residual clause of
the mandatory Sentencing Guidelines.'” (quoting
Mitchell v. United States, No. 3:00-CR-00014, 2017
WL 2275092, at *3 (W.D. Va. May 24, 2017); collecting
cases)); Brown, 868 F.3d at 304 (“We are
constrained from reading between the lines of
Booker, Johnson, and Beckles to
create a right that the Supreme Court has yet to
recognize.... [O]nly the Supreme Court can recognize the
right which would render [the] motion timely under §
2255(f)(3).”); United States v. Greer, 881
F.3d 1241, 1247 (10th Cir. 2018) (“The right that Mr.
Greer ‘asserts' is a right not to be sentenced
under the residual clause of § 4B1.2(a)(2) of the
mandatory Guidelines. The Supreme Court has recognized no
such right. And nothing in Johnson speaks to the
issue.” (footnote omitted)); see also Washington v.
United States, No. 3:16-cv-1598-L-BN, 2017 WL 5036640
(N.D. Tex. Sept. 26, 2017), rec. accepted, 2017 WL
4948995 (N.D. Tex. Oct. 31, 2017); Givens v. United
States, Nos. A-16-CV- 515-SS & A-01-CR-212(1)-SS,
2018 WL 327368 (W.D. Tex. Jan. 8, 2018); but see, e.g.,
United States v. Patrick, No. 6:98-cr-60099-MC-1, 2017
WL 4683292, at *3 n.4 (D. Or. Oct. 18, 2017) (noting that
“[t]he First, Second, Third, Fourth, Sixth, and Tenth
Circuits have [ ] granted petitioners leave to file second or
successive petitions challenging their mandatory-Guideline
sentences based on the right recognized in
Johnson” but observing that “[t]hese
cases provide little guidance here, however, since the filing
of a second or successive petition under § 2255(h)(2) is
permitted upon a mere showing of “possible
merit”-a relatively easy bar to clear” (citations
“the statute of limitations in § 2255 may be
equitably tolled in ‘rare and exceptional
circumstances.'” United States v.
Patterson, 211 F.3d 927, 930 (5th Cir. 2000). But
“a litigant is entitled to equitable tolling of a
statute of limitations only if the litigant establishes two
elements: ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.'”
Menominee Indian Tribe of Wis. v. United States, 577
U.S.__, 136 S.Ct. 750, 755 (2016) (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010)). And Movant has not
shown an entitlement to equitable tolling by, at least,
alleging that “rare, exceptional, or extraordinary
circumstances beyond his control ... made it impossible for
him to timely file” this motion. Montes v. United
States, Nos. 3:13-cv-1936-K & 3:09-cr-286-K (4),
2014 WL 5286608, at *3 (N.D. Tex. Oct. 15, 2014) (citations
motion is therefore time-barred and the motion to dismiss is