United States District Court, W.D. Texas, Austin Division
MEMORANDUM OPINION AND ORDER
YEAKEL UNITED STATES DISTRICT JUDGE.
the court in the above-styled and numbered cause are Walter
Dewayne Meadow's Motion to Vacate under 28 U.S.C. §
2255 filed June 24, 2016 (Dkt. No. 56), Memorandum of Law in
Support of Motion to Vacate filed June 28, 2017 (Dkt. No.
60), Government's Answer to Defendant's Motion to
Vacate, Set Aside, or Correct Sentence filed August 2, 2017
(Dkt. No. 63), Reply to the Government's Response to the
Motion to Vacate filed September 13, 2017 (Dkt. No. 65),
Briefing Responsive to the Court's Order filed August 30,
2018 (Dkt. No. 69), Government's Response and Motion to
Deny Petitioner's Request for 28 U.S.C. § 2255
Relief filed October 15, 2018 (Dkt. No. 72), and Reply to the
Government's October 15, 2018 Response filed October 25,
2018 (Dkt. No. 73). Having reviewed the motion, responses,
replies, briefing, the applicable law, and the entire record
in this cause, the court will grant the motion to vacate for
the reasons to follow.
compliance with the U.S. Sentencing guidelines was still
understood to be mandatory, district courts were required to
impose an extended term of incarceration on so-called career
offenders." Cross v. United States, 892 F.3d
288, 291 (7th Cir. 2018); see also United States v.
Booker, 543 U.S. 220, 234 (2005) (recognizing the
Guidelines were "binding on judges" and
"carried the force and effect of law"). The
Guidelines mandated an enhanced sentence for so-called
"career offender[s]" with "at least two prior
felony convictions of either a crime of violence or a
controlled substance offense." See U.S.S.G.
§ 4Bl.l(a). As relevant here, the Guidelines defined a
crime of violence as including any offense "involving]
conduct that present[ed] a serious potential risk of physical
injury to another." Id. at 4B
1.2(a)(2). This catch-all phrase defining a crime of
violence is known as the "residual clause."
Walter Dewayne Meadows pleaded guilty on April 28, 2004, to
one count of Felon in Possession of a Firearm, without the
benefit of a plea agreement. See 18 U.S.C. §
922(g)(1). The presentence-investigation report calculated
Meadows's base-offense level as 24, because of two prior
felony convictions for "crimes of violence" under
the residual clause. Meadows was convicted under Texas law of
sexual assault of a child and attempted murder, which
resulted in a mandatory Guideline range of 77-96 months'
imprisonment. See Tex. Penal Code Ann. §
22.011, 19.02. On July 8, 2004, this court sentenced Meadows
to a term of imprisonment of 84 months.
this court sentenced Meadows, several legal developments
drastically reshaped federal sentencing. First, the Supreme
Court held the mandatory nature of the Sentencing Guidelines
to be unconstitutional. See Booker, 543 U.S. at 234.
Then, in Johnson v. United States, the Supreme Court
held the residual clause in the Armed Career Criminal Act
-which enhanced a sentence based on previous convictions that
"otherwise involves conduct that presents a serious
potential risk of physical injury to another"-to be
unconstitutionally vague. See Johnson v. United
States, __ U.S. __, 135 S.Ct. 2551, 2563 (2015); 18
U.S.C. § 924(e)(2)(B). And, in Welch v. United
States, the Supreme Court held that Johnson
announced a new substantive rule retroactively applicable to
cases on collateral review. See Welch, __U.S. __,
136 S.Ct. 1257 (2016).
Johnson decision lead to a wave of cases challenging
criminal statutes with similar or identical language as that
struck down in Johnson, including challenges to the
residual clause of the career-offender sentencing guideline.
See U.S.S.G.§ 4B1.1, 4B1.2(a)(2). One such
decision reached the Supreme Court. In Beckles v. United
States, the petitioner challenged his sentence, which
was enhanced under the career-offender guideline
after the Guidelines were made advisory by the
Supreme Court's decision in Booker. See Beckles,
U.S., 137 S.Ct. 886, 892 (2017). The Supreme Court held that
because the Sentencing Guidelines were advisory at the time
of Beckles' sentencing, and "merely guide[d] the
exercise of a court's discretion in choosing an
appropriate sentence within the statutory range,"
Johnson did not apply to Beckles's case.
Beckles, 137 S.Ct. 886, 892 (2017). As the Court
explained, "our cases have never suggested that a
defendant can successfully challenge as vague a sentencing
statute conferring discretion to select an appropriate
sentence from within a statutory range .. .."
Id. at 893. Thus, the Sentencing Guidelines'
advisory-as opposed to mandatory-status meant the
career-offender guideline was not subject to the same
vagueness challenge raised in Johnson.
the Supreme Court left for another day the question of
whether the principles announced in Johnson would
render unconstitutional a sentence imposed under the
pie-Booker career-offender guideline, when imposing
a Guideline sentence was statutorily mandated. See
Id. at 894-95 (repeatedly stating that the
"advisory Guidelines" do not implicate the twin
concerns of the vagueness doctrine); id. at 903 n.4
(Sotomayor, J., concurring) ("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]-that is, during the period in which the
Guidelines did 'fix the permissible range of
sentences'-may mount vagueness attacks on their
issue squarely before the court today is whether a sentence
imposed pie-Booker-at a time when this court was
statutorily required to apply a Guideline sentence-may now be
attacked on vagueness grounds. Meadows filed a motion to
vacate his sentence under Section 2255. See 28
U.S.C. § 2255. A federal prisoner "claiming the
right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the
United States" may ask the sentencing court to
"vacate, set aside or correct the sentence."
Id. at § 2255(a). This motion must be made
within one year "from the latest of a set of enumerated
events. See 28 U.S.C. § 2255(f). One such event
that tolls the usual one-year limitation is where the Supreme
Court "newly recogiz[es]" a right and making that
right "retroactively applicable to cases on collateral
review." Id. at § 2255(f)(3). This period
begins when the Supreme Court declares a new right, not when
courts first acknowledge that right to be retroactive.
See Dodd v. United States, 545 U.S. 353, 356-60
(2005). Thus, the timeliness of Meadow's
motions hinges on whether the right he "assert[s] was
initially recognized by" Johnson. 28 U.S.C.
are split on the question of whether a sentence enhanced by
the career-offender guideline-imposed when the Guidelines
were mandatory-is a right recognized by Johnson and
thus, retroactively applicable to petitioners like Meadows.
On one side of the issue, some courts have found that the
"new right" recognized by Johnson and made
retroactive in Welch is not the same right asserted
by Meadows (and petitioners like him), and as a result their
Section 2255 petitions are untimely. The Fourth, Sixth and
Eleventh Circuits, along with a number of district courts,
have taken this approach. See Raybon v. United
States, 867 F.3d 625 (6th Cir. 2017); United States
v. Brown, 868 F.3d 297 (4th Cir. 2017); United
States v. Greer, 2018 WL 721675 (11th Cir.
2018). These courts narrowly construe the term
"right" as used in Section 2255 to encompass only
the precise holding of the Supreme Court case at issue. Such
a holding means the "right" recognized by
Johnson is that a sentence enhanced under the
residual clause of the Armed Career Criminal Act is
unconstitutional and must be vacated. Under this approach,
only petitioners challenging sentences imposed under the
Armed Career Criminal Act's residual clause may take
advantage of the tolling provision of Section 2255(f)(3).
See, e.g., Raybon, 867 F.3d at 630 (extension of
Johnson to the mandatory Guidelines would recognize a
"new right"); Brown, 868 F.3d at 302
("Beckles confirms that the Supreme Court has
yet to recognize a broad right invalidating all residual
clauses as void for vagueness simply because they exhibit
wording similar to [Armed Career Criminal Act's] residual
other hand, courts have determined that the statutory
language of Section 2255(f)(3) should be read more broadly.
The First Circuit concluded that:
Congress in [section] 2255 used words such as
"rule" and "right" rather than
"holding." Congress presumably used these broader
terms because it recognizes that the Supreme Court guides the
lower courts not just with technical holdings but with
general rules that are logically inherent in those holdings,
thereby ensuring less arbitrariness and more consistency in
Moore v. United States,
871 F.3d 72, 82 (1st Cir.
2017); see also Cross v. United States, 892 F.3d
288, 294 (7th Cir. 2018) (holding that Johnson
recognized "the right to be resentenced on the ground
that the vague (yet mandatory) residual clause
unconstitutionally fixed their terms of imprisonment").
These opinions conclude that challenges to sentences imposed
under then-mandatory Guidelines rely on "exactly the
right" Johnson recognized. Moore, 871
F.3d at 83.These courts looked to the reasoning of
Johnson-that a person has a right not to have his
sentence dictated by the unconstitutionally vague
language of the mandatory residual clause-to hold ...