Moore v. United States

• Citation: 871 F.3d 72
• Decision Date: 13 September 2017
• Docket Number: No. 16-1612.,16-1612.
• Parties: Darnell A. MOORE, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — First Circuit

871 F.3d 72

Darnell A. MOORE, Petitioner,

v.UNITED STATES of America, Respondent.

No. 16-1612.

United States Court of Appeals, First Circuit.

September 13, 2017

Inga L. Parsons, Marblehead, MA, for petitioner.

Michael A. Rotker, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Kenneth A. Blanco, Acting Assistant Attorney General, U.S. Department of Justice, Criminal Division, Trevor N. McFadden, Deputy Assistant Attorney General, U.S. Department of Justice, Criminal Division, William D. Weinreb, Acting U.S. Attorney, and Dina M. Chaitowitz, Assistant U.S. Attorney, Chief, Appellate Division, were on brief, for respondent.

Before Thompson, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

Darnell Moore seeks to file a successive motion to vacate his federal sentence under 28 U.S.C. § 2255. Before he can do so, this court must certify that his motion "contain[s] ... 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. § 2255(h). The new rule upon which Moore's motion relies, according to Moore, is that announced in Johnson v. United States (Johnson II ), ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson II declared unconstitutionally vague the residual clause in the Armed Career Criminal Act's (ACCA) definition of a "violent felony," see 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court made Johnson II retroactive to cases on collateral review in Welch v. United States, –––U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Moore seeks to argue in the district court that the new rule created by Johnson II invalidates the residual clause of the career offender guideline applied at his sentencing, which occurred before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the guidelines advisory, id. at 245, 125 S.Ct. 738 (opinion of Breyer, J.). For the following reasons, we grant Moore the certification he requests.

I.

In July 2000, Darnell Moore was charged with two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). See United States v. Moore, 362 F.3d 129, 131 (1st Cir. 2004). He pleaded guilty in May 2002. Id. Sentencing occurred in October 2002, id. at 133–34, prior to the Supreme Court's decision in Booker.

The sentencing court concluded that Moore fell under the career offender guideline. Moore, 362 F.3d at 131–32. That guideline applied to defendants who were at least eighteen years old at the time of the offense of conviction, whose offense of conviction was a "crime of violence or a controlled substance offense," and who had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1 (U.S. Sentencing Comm'n Nov. 1, 2001). The definition of a "crime of violence" included

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id.§ 4B1.2 (Nov. 1, 2001). Moore had prior convictions in Massachusetts state courts for assault and battery, assault and battery on a corrections officer, breaking and entering during the daytime, and assault with a dangerous weapon. To classify Moore as a career offender, the district court must have concluded that at least two of these prior convictions satisfied the guidelines' definition of "crime of violence."

The career offender guideline increased Moore's criminal history category to VI and, because the unarmed bank robbery conviction carried a statutory maximum sentence of twenty years, see 18 U.S.C. § 2113(a), increased Moore's offense level to thirty-two. See U.S.S.G. § 4B1.1 (Nov. 1, 2001). Using this offense level and this criminal history category, Moore's mandatory guidelines sentencing range was 210 to 262 months.¹ See Moore, 362 F.3d at 133–34 ; see also U.S.S.G. Ch. 5, Pt. A (Nov. 1, 2001) (Sentencing Table). The district court sentenced him to 216 months' imprisonment. Moore, 362 F.3d at 134.

In March 2005, Moore filed a motion to vacate his sentence under 28 U.S.C. § 2255. He argued, among other things, that Booker applied retroactively and thus the district court erred by treating the guidelines as mandatory at his sentencing. The district court denied the motion, ruling that Booker did not have retroactive effect. Moore did not appeal that denial.²

In June 2015, the Supreme Court handed down its opinion in Johnson II. The opinion addressed the ACCA, which mandates the increase of minimum and maximum sentences for certain crimes whenever the defendant has previously been convicted of a "violent felony." The ACCA's definition of a "violent felony" reads, in relevant part:

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

18 U.S.C. § 924(e)(2)(B) (emphasis added).

In Johnson II, the Supreme Court held that the clause underlined above, called the "residual clause," was so vague that it violated due process for the ACCA to use it to increase minimum or maximum allowable sentences. 135 S.Ct. at 2557. The Court's prior opinions had established that the residual clause was to be applied in the following way: First, a court would identify an "ordinary case" of the crime in question. Id. Second, the court would determine whether that ordinary case presented a serious potential risk of physical injury to another, with the level of risk that qualified as "serious" being identified with reference to the level of risk involved in the enumerated offenses (burglary, arson, extortion, or a crime involving the use of explosives). Id.

The Court concluded that this way of analyzing the residual clause "combin[ed] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony." Id. at 2558. That is, it was unclear both how to identify the "ordinary case" of a crime and how much risk of physical injury to another counted as a "serious potential risk." This compounded indeterminacy "both denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges." Id. at 2557. The residual clause thereby contravened a central component of due process: "[t]he prohibition of vagueness in criminal statutes," id. at 2556–57, which applies "not only to statutes defining elements of crimes, but also to statutes fixing sentences," id. at 2557.

The question before the Court in Welch was whether Johnson II applied retroactively to cases on collateral review. The first step in answering this question was determining whether Johnson II announced a new rule of constitutional law. " ‘[A] case announces a new rule ... when it breaks new ground or imposes a new obligation’ on the government." Chaidez v. United States, 568 U.S. 342, 347, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (first alteration in original) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (O'Connor, J., plurality opinion)). "To put it differently, ... a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. (emphasis omitted) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060 ). A holding is only dictated by precedent if "it would have been ‘apparent to all reasonable jurists.’ " Id. (quoting Lambrix v. Singletary, 520 U.S. 518, 527–528, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) ). However, "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. (alterations in original) (emphasis omitted) (quoting Teague, 489 U.S. at 307, 109 S.Ct. 1060 ). The parties in Welch agreed that Johnson II announced a new rule of constitutional law.

A new rule of constitutional law applies retroactively to cases on collateral review only if it is a "substantive rule[ ]," Welch, 136 S.Ct. at 1264 (emphasis omitted) (quoting Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ), or if it is a "watershed rule[ ] of criminal procedure," id. (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) ). The parties in Welch also agreed that Johnson II was not a watershed rule of criminal procedure. Id. So, the question before the Court in Welch was whether Johnson II announced a substantive rule.

The Court concluded that it did. "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Id. at 1264–65 (quoting Schriro, 542 U.S. at 353, 124 S.Ct. 2519 ). The Court reasoned that "[b]y striking down the residual clause as void for vagueness, [ Johnson II] changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes.’ " Id. at 1265 (second alteration in original) (quoting Schriro, 542 U.S. at 353, 124 S.Ct. 2519 ). Johnson II was a substantive rule because, before that decision, "the [ACCA] applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause." Id. After that decision, by contrast, " ‘even the use of impeccable factfinding procedures could not legitimate’ a sentence based on...