Cross v. United States

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Wood, Chief Judge.
• Citation: Cross v. United States, 892 F.3d 288 (7th Cir. 2018)
• Decision Date: 07 June 2018
• Docket Number: Nos. 17-2282 & 17-2724,s. 17-2282 & 17-2724
• Parties: De'Angelo A. CROSS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, and Carl Leo Davis, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

892 F.3d 288

De'Angelo A. CROSS, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee,andCarl Leo Davis, Petitioner-Appellant,

v.United States of America, Respondent-Appellee.

Nos. 17-2282 & 17-2724

United States Court of Appeals, Seventh Circuit.

Argued January 10, 2018

Decided June 7, 2018

Shelley M. Fite, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Petitioners–Appellants.

Jonathan H. Koenig, Rebecca Taibleson, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Respondent–Appellee.

Before Wood, Chief Judge, Hamilton, Circuit Judge, and Bucklo, District Judge.^*

Wood, Chief Judge.

When 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 criminals. This class of repeat felons was limited to those previously convicted twice for drug crimes or crimes of violence. The latter offenses included any felony "involv[ing] conduct that present[ed] a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2) (1992) ; U.S.S.G. § 4B1.2(a)(2) (2000). We will call that definition of a crime of violence the "residual clause" in this opinion.

The Supreme Court jettisoned the mandatory nature of the guidelines in 2005, in its decision in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. The Booker decision did not, however, immediately affect sentences imposed on defendants previously. Thus, De'Angelo Cross and Carl Davis continued to serve obligatory sentences as career offenders as required by the mandatory guidelines. Both Cross and Davis qualified for that designation because of the residual clause. Their present appeal challenged the constitutionality of that clause.

Two recent developments form the backdrop for our decision: first, the Supreme Court’s holding in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the identical language in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012), is unconstitutionally vague; and second, the Court’s ruling in Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), that Johnson does not extend to the post- Booker advisory guidelines, including the career-offender guideline. We conclude that Beckles applies only to advisory guidelines, not to mandatory sentencing rules. Under Johnson , the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre- Booker defendants. Cross and Davis are both entitled to be resentenced.

I

Cross and Davis brought their cases to the district court through motions under 28 U.S.C. § 2255 for relief from their sentences. Each was unsuccessful before the district court and appealed to this court. In light of the substantial overlap in the issues presented, we consolidated their cases.

When the district court sentenced Cross (2000) and Davis (1992), the then-mandatory sentencing guidelines prescribed an elevated sentence for those denominated career offenders. U.S.S.G. § 4B1.1. A defendant qualified as a career offender upon his third felony conviction for either a crime of violence or a drug offense. Id . The guidelines defined the term "crime of violence" in three ways: an elements approach, U.S.S.G. § 4B1.2(a)(1) ; an enumerated offense approach, id. § 4B1.2(a)(2), first part; and the residual clause, id. § 4B1.2(a)(2), final clause. As we noted, the residual clause covered any offense that "involves conduct that presents a serious potential risk of physical injury to another." Id . Both Cross and Davis were sentenced as career offenders on the basis of the residual clause, and neither objected at trial. Davis did not file a direct appeal. Although Cross filed a notice of appeal (despite generally waiving his right to appeal or to file for collateral relief in his plea agreement), this court dismissed his case as frivolous after his attorney filed a no-merit brief to which Cross did not respond. United States v. Cross , 24 Fed.Appx. 576, 577 (7th Cir. 2001) ; see Anders v. California , 386 U.S. 738, 744–45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Since Davis’s and Cross’s convictions, the Supreme Court has dramatically altered the federal sentencing landscape. First, Booker demoted the federal sentencing guidelines from mandatory to advisory. 543 U.S. 220, 125 S.Ct. 738. Then Johnson struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague, overruling contrary decisions in James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), and upsetting a host of decisions from every court of appeals in the country. The residual clause of the ACCA, which imposed increased minimum and maximum sentences, used identical language to that employed in the guidelines. Compare 18 U.S.C. § 924(e)(2)(B) (2012) with U.S.S.G. § 4B1.2(a)(2) (1992 and 2000). The Court subsequently declared Johnson retroactive. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Meanwhile, the Court applied the ex post facto clause to bar a retrospective increase in an advisory guidelines range. Peugh v. United States , 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). Yet contrary to this circuit’s expectations, see United States v. Hurlburt , 835 F.3d 715 (7th Cir. 2016) (en banc ) (declaring the residual clause in the advisory guidelines void for vagueness under Johnson ), the Court held in Beckles that the void-for-vagueness doctrine has no role to play in the advisory guidelines and upheld the use of the residual clause in that context, 137 S.Ct. 886.

In light of these developments and within one year of Johnson , Cross and Davis each sought resentencing under 28 U.S.C. § 2255. In Cross’s case, even though the judge expressed considerable sympathy for Cross’s vagueness argument, he thought himself bound by this court’s refusal to entertain vagueness challenges to the mandatory guidelines in United States v. Brierton , 165 F.3d 1133, 1139 (7th Cir. 1999), and advisory guidelines in United States v. Tichenor , 683 F.3d 358, 364–65 (7th Cir. 2012). Notwithstanding the fact that we had reversed course in Hurlburt , the judge "c[ould] not conclude with certainty that Hurlburt ’s abrogation of Tichenor [and Brierton ] remain[ed effective] notwithstanding Beckles ," in which the Supreme Court abrogated the specific holding of Hurlburt . In the alternative, he held that the broad waiver of appellate rights in Cross’s plea agreement could not be overcome, even though the appeal waiver permitted motions "based on ... the sentencing court’s reliance on any constitutionally impermissible factor."

A different district judge handled Davis’s motion, but he too concluded that relief was not in order. He found that Davis’s motion was barred by the one-year limitations period in 28 U.S.C. § 2255(f). He acknowledged that section 2255(f)(3) reopens the limitations period for an additional year from "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 . § 2255(f)(3). He also recognized that Davis filed his petition within a year of Johnson ’s issuance. Nonetheless, the judge believed that the Supreme Court’s invalidation of the residual clause in the ACCA did not carry over to the residual clause in the pre- Booker , mandatory version of the career-criminal sentencing guideline. In the alternative, he held that Davis qualified as a career offender under the elements clause of the guidelines. See U.S.S.G. § 4B1.2(a)(1) ("crime of violence" also includes any felony that "has as an element the use, attempted use, or threatened use of physical force"). On that basis, he concluded that Davis was still a career offender notwithstanding Johnson .

II

Because Cross’s and Davis’s appeals present legal, rather than factual disputes, we consider the district courts' conclusions de novo . Delatorre v. United States , 847 F.3d 837, 843 (7th Cir. 2017). We begin by explaining why we reject the various procedural hurdles that the government has raised as a bar to our reaching the merits of both these appeals.

A

Cross and Davis each filed his section 2255 motion within one year of the Supreme Court’s decision in Johnson . The government nonetheless argues that their motions were untimely. Federal prisoners "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." 28 U.S.C. § 2255(a). They must, however, file their motion within a specified time. Id. § 2255(f). The only limitation period potentially applicable to Cross’s and Davis’s cases runs for one year from "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. § 2255(f)(3). Dodd v. United States clarifies that this limitation period begins when the Supreme Court declares a new right, not when courts first acknowledge that right to be retroactive. 545 U.S. 353, 356–60, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). Thus, the timeliness of Cross’s and Davis’s motions hinges on whether the right they "assert[ ] was initially recognized by" Johnson . 28 U.S.C. § 2255(f)(3).

The government argues that Johnson recognized the invalidity of the residual clause only vis-à-vis the ACCA. Cross and Davis, unlike Johnson, were sentenced under the residual clause of the guidelines. The government concludes, therefore, that section 2255(f)(3) cannot help them, unless and until the Supreme Court explicitly extends ...