In re Embry

• Decision Date: 29 July 2016
• Docket Number: No. 16–5447,16–5447
• Citation: 831 F.3d 377
• Parties: In re Alford D. Embry, Movant.
• Court: U.S. Court of Appeals — Sixth Circuit

831 F.3d 377

In re Alford D. Embry, Movant.

No. 16–5447

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 29, 2016

ON RESPONSE: Debra A. Breneman, United States Attorney's Office, Knoxville, Tennessee, for Respondent. ON REPLY: Erin P. Rust, Federal Defender Services, Chattanooga, Tennessee, for Movant. ON MOTION: Alford D. Embry, Jr., Welch, West Virginia, pro se.

Before: KEITH, ROGERS, and SUTTON, Circuit Judges.

OPINION

SUTTON

, Circuit Judge.

Alford Embry seeks leave to file a successive motion to vacate or lower his sentence. See 28 U.S.C. § 2255

. Invoking Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which voided for vagueness the residual clause of a sentencing statute (the Armed Career Criminal Act), he claims a right to relief because the district court treated him as a career offender under an identically worded clause of the Sentencing Guidelines (U.S.S.G. § 4B1.2(a)(2) ). In one sense, there is something to be said for his request. For United States v. Pawlak , 822 F.3d 902 (6th Cir. 2016), extended Johnson to invalidate the Sentencing Guidelines' residual clause. But in another sense, there are some things that cut against his request. For the right to bring a successive § 2255 motion does not turn on circuit authority alone. To bring a successive § 2255 motion (or for that matter a successive § 2254 habeas petition), an inmate must rely on a “new rule” “made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). The Supreme Court, however, has not yet determined whether Johnson also dooms the Guidelines' residual clause, and there are respectable constitutional arguments that the vagueness doctrine does not apply to the advisory Guidelines. The Supreme Court has agreed to resolve the point next Term in Beckles v. United States , No. 15–8544, ––– U.S. ––––, –––S.Ct. ––––, ––– L.Ed.2d ––––, 2016 WL 1029080 (U.S. June 27, 2016) (Mem.). In the interim, it is not clear whether to treat Pawlak as a new rule that the Supreme Court has not yet made retroactive or as a rule dictated by Johnson that the Supreme Court has made retroactive.

Now is not the time to decide that question, and this is not the venue for resolving it. Embry need only make a “prima facie” showing of an entitlement to relief, 28 U.S.C. § 2244(b)(3)(C)

, and the district court is free to decide for itself whether Embry's claim relies on a new rule made retroactive by the Supreme Court, see 28 U.S.C. § 2244(b)(4). The outcome of Beckles, one hopes, will make all of this a lot easier. We therefore grant the motion and transfer the case to the district court, to be held in abeyance pending the Supreme Court's decision in Beckles v. United States.

In 2000, Embry pled guilty to three counts of bank robbery, three counts of being a felon in possession of a firearm, and a single count of using a firearm in relation to a crime of violence. See 18 U.S.C. §§ 2113(a)

, 922(g), 924(c). In calculating his sentencing range under the Guidelines, the court treated him as a career offender based on prior convictions for robbery and wanton endangerment, and increased his advisory sentencing range (and eventually his actual sentence) accordingly. See U.S.S.G. § 4B1.1

. In 2016, he filed this motion to vacate his sentence, which the district court transferred to this court for permission (or not) to proceed. 28 U.S.C. § 2244(b)(3).

The court of appeals may authorize a successive motion to vacate a sentence or conviction if the inmate “makes a prima facie showing” that his proposed claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §§ 2244(b)(3)(C)

, 2255(h)(2). In Johnson, the Supreme Court announced a new rule of constitutional law that the Court eventually made retroactive to cases on collateral review. See

Welch v. United States , –––U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

In Pawlak

, our court held that the Guidelines' residual clause is also unconstitutionally vague. 822 F.3d at 911. At stake is whether Pawlak applied the “new rule” announced in Johnson or recognized a “new rule” of its own. If Pawlak merely applied the Johnson rule, Embry has shown that his claim relies on a new rule that the Supreme Court has made retroactive on collateral review. But if the Pawlak rule is distinct from the Johnson rule, Embry has a problem because the Supreme Court has not yet recognized this rule or made it retroactive.

What, then, is a “new rule”? 28 U.S.C. § 2255(h)(2)

. One that is “not dictated by precedent,” says Teague v. Lane , 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). A rule is not dictated by precedent, another case says, unless it is “apparent to all reasonable jurists.” Chaidez v. United States , ––– U.S. ––––, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013) (quotation omitted). Our decision in Pawlak thus amounts to a “new rule” unless “all reasonable jurists” would adopt the rule based on existing precedent. At the same time, we are mindful that “a case does not announce a new rule, when it is merely an application of the principle that governed a prior decision to a different set of facts.” Id. (quotation omitted).

The inquiry is not an easy one. The Fifth and Eighth Circuits have concluded that Johnson

does not dictate the invalidation of the Guidelines' residual clause, and have denied motions like Embry's. In re Arnick , No. 16–10328, 826 F.3d 787, 788–89, 2016 WL 3383487, at *1 (5th Cir. June 17, 2016) (per curiam); Donnell v. United States , No. 15–2581, 826 F.3d 1014, 1016–17, 2016 WL 3383831, at *2 (8th Cir. June 20, 2016). The Second, Fourth, and Tenth Circuits have gone the other way. Blow v. United States , No. 16–1530, 829 F.3d 170, 172–73, 2016 WL 3769712, at *2 (2d Cir. July 14, 2016) (per curiam); In re Hubbard , No. 15–276, 825 F.3d 225, 233–35, 2016 WL 3181417, at *6–7 (4th Cir. June 8, 2016) ; In re Encinias , 821 F.3d 1224, 1226 (10th Cir. 2016) (per curiam). Making matters more complicated, the Eleventh Circuit disagrees with Pawlak across the board, and has held that the vagueness doctrine does not apply to the Guidelines, which create recommended sentencing ranges, not required sentencing ranges. United States v. Matchett , 802 F.3d 1185, 1193–96 (11th Cir. 2015).

When it comes to deciding whether Embry has made a prima facie showing of a right to relief, there are two sides to this debate, each with something to recommend it.

On the one hand : there is much to support the idea that Pawlak

is a new rule. What was true in Johnson for the residual clause of the Armed Career Criminal Act was not obviously true in Pawlak for the residual clause of the Sentencing Guidelines. Before a court could invoke Johnson

to invalidate the residual clause of the Guidelines, it would have to resolve a threshold question: Do the due process concerns about notice and arbitrary enforcement that undergird the prohibition on vague criminal statutes, see

Johnson , 135 S.Ct. at 2556–57, apply to the advisory Sentencing Guidelines?

The answer to this gateway question is not self-evident. Yes, many of the courts that have confronted the issue, including ours in Pawlak

, have permitted vagueness challenges to the Guidelines' residual clause in the wake of Johnson, often (it bears noting) because the government has conceded the point. See

Pawlak , 822 F.3d at 907 ; United States v. Madrid , 805 F.3d 1204, 1211 (10th Cir. 2015) (permitting a vagueness challenge to the Guidelines); United States v. Townsend , 638 Fed.Appx. 172, 177–78 & n. 14 (3d Cir. 2015) (accepting the government's concession); United States v. Welch , No. 12–4402, 641 Fed.Appx. 37, 42–43, 2016 WL 536656, at *4 (2d Cir. Feb. 11, 2016) (per curiam) (same). But respected courts and jurists disagree. See

Matchett , 802 F.3d at 1193–96 (holding that advisory guidelines are not susceptible to vagueness challenges); cf.

United States v. Taylor , 803 F.3d 931, 933–35 (8th Cir. 2015) (Colloton, J., dissenting) (arguing the same); United States v. Lee , 821 F.3d 1124, 1133–35 (9th Cir. 2016) (Ikuta, J., dissenting) (same).

In rejecting a vagueness challenge to the Guidelines' residual clause, the Eleventh Circuit held that “[b]ecause there is no constitutional right to ... a less discretionary application of sentences than that permitted prior to the Guidelines ... the limitations the Guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague.” Matchett , 802 F.3d at 1194–95

(quotation omitted). The Seventh Circuit said something similar in reaching the same conclusion prior to Johnson : “The vagueness doctrine is concerned with providing fair notice and preventing arbitrary enforcement. Since the Guidelines are merely advisory, defendants cannot rely on them to communicate the sentence that the district court will impose.” United States v. Tichenor , 683 F.3d 358, 365 (7th Cir. 2012). A distinction between the application of the vagueness doctrine to mandatory sentencing increases and to advisory sentencing increases is a reasonable one, as confirmed by the many jurists who have adopted it. Among those many jurists, we should add, are three judges from our own court, reasonable all, who embraced that same distinction before Pawlak. See

United States v. Smith , 73 F.3d 1414, 1417–18 (6th Cir. 1996).

The Pawlak

court, it is true, reasoned that Peugh v. United States , –––U.S. ––––, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), undermined this distinction because it held that the Ex Post Facto Clause prevented a court from applying a Guidelines amendment that increased the sentencing range for bank fraud to a defendant whose alleged crime took place before the amendment was enacted. Pawlak , 822 F.3d at 905–07. The court read Peugh to “reflect[ ] the [Supreme] Court's judgment that the Guidelines are subject to constitutional...