Nunez v. United States

• Decision Date: 30 March 2020
• Docket Number: August Term, 2019,Docket No. 18-1803-pr
• Parties: Miguel NUNEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

954 F.3d 465

Miguel NUNEZ, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

Docket No. 18-1803-pr

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: August 29, 2019

Decided: March 30, 2020

EDWARD S. ZAS, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Petitioner-Appellant Miguel Nunez.

NATHAN REHN, Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.

Before: POOLER, PARKER, and RAGGI, Circuit Judges.

Judge Pooler and Judge Raggi each concur in separate opinions.

POOLER, Circuit Judge:

Petitioner Miguel Nunez appeals from the May 24, 2018 judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, J .) denying as untimely Nunez’s 28 U.S.C. § 2255 motion challenging his February 7, 2000 sentence for substantive and conspiratorial Hobbs Act robbery. See 18 U.S.C. § 1951(a). Nunez is currently serving 360 months’ imprisonment for these crimes, a significant upward departure from the 151-to-188 month Guidelines range calculated by the district court under the presumptively binding pre- Booker Sentencing Guidelines. See United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). That Guidelines range was dictated by the Career Offender Guideline, see U.S.S.G. § 4B1.1, which the district court applied upon finding that Nunez’s present, and two prior, convictions were all for "crime[s] of violence," as defined in the Guideline’s residual clause, id . § 4B1.2. Nunez argues that this residual clause is unconstitutionally vague, and thus, his sentencing violates due process. In support, Nunez relies on Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which struck down an identically worded provision of the Armed Career Criminal Act as unconstitutionally vague. The issue presented to us on appeal is whether the right Nunez asserts was recognized in Johnson , rendering his motion timely pursuant to 28 U.S.C. § 2255(f)(3), or whether the right he asserts has yet to be recognized, rendering his motion untimely. We hold that Johnson did not itself render the residual clause of the pre- Booker Career Offender Guideline unconstitutionally vague and, thus, did not recognize the right Nunez asserts. We therefore affirm the district court’s denial of Nunez’s Section 2255 motion as untimely.

BACKGROUND

I. Nunez’s Conviction

On October 5, 1999, Miguel Nunez pled guilty to Hobbs Act robbery and conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). Nunez and two co-conspirators had broken into the apartment of a male and female couple who ran a florist business and stole between $12,000 and $14,000 in cash, along with other personal items of value. During the course of the robbery, Nunez and one of his co-conspirators tied both victims up with rope and raped the female proprietor of the florist business.

At the time of Nunez’s sentencing, a defendant was considered a career offender under the Sentencing Guidelines if,

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1 (1998). Nunez stipulated that he was eighteen years old at the time of his Hobbs Act offenses, he had two prior felony convictions for New York first-degree robbery, and Hobbs Act robbery was a crime of violence.

The Career Offender Guideline defined a crime of violence as "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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ."

U.S.S.G. § 4B1.2(a) (1998) (emphasis added). The first definition is known as the elements clause. The second definition is known as the enumerated offenses clause. The italicized part of the second definition is known as the residual clause. The district court concluded that Nunez’s Hobbs Act robbery, and two prior felony convictions, were "crimes of violence" under the residual clause. Thus, Nunez constituted a career offender.

As a career offender, Nunez’s Guidelines range was 151 to 188 months of imprisonment, as opposed to 121 to 151 months. The district court departed upwards from even this higher Guidelines range under provisions of the Guidelines that permit doing so when a defendant has caused extreme psychological injury in the victim and the conduct was extreme. Accordingly, the district court sentenced Nunez to 240 months for Hobbs Act robbery and 120 months for Hobbs Act conspiracy, for a total of 360 months of imprisonment. On appeal, this court upheld the sentence. United States v. Nunez , 8 F. App'x 81 (2d Cir. 2001).

II. Subsequent Supreme Court Decisions

Some years later, the Supreme Court decided United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held that a mandatory application of the Sentencing Guidelines was unconstitutional, see id. at 245-46, 125 S.Ct. 738, and to avoid that result, construed the Guidelines as advisory, see id. at 245, 259, 125 S.Ct. 738.

More recently, the Supreme Court decided Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). The Court in Johnson held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act"—which contained a residual clause identical to that in the crime of violence definition of the Career Offender Guideline—"violate[d] the Constitution’s guarantee of due process" because the clause was unconstitutionally vague. Id . at 2563. Using the rationale in Johnson , the Court subsequently struck down similarly worded residual clauses in the crime of violence definitions of the Immigration and Nationality Act, see Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), and in 18 U.S.C. § 924(c)(3)(B), see United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019).

The Supreme Court also dealt with a vagueness challenge to the residual clause of the Career Offender Guideline as applied after Booker in Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 197 L.Ed.2d 145 (2017). In Beckles , the defendant argued that the Guideline’s residual clause was void for vagueness, making his sentencing pursuant to the clause unconstitutional. Id . at 890-91. The Supreme Court rejected the argument, refusing to extend Johnson ’s reasoning to the post- Booker Guidelines. Id . at 891-92. The Court explained that unlike the ACCA’s residual clause, which mandated certain, higher sentence ranges, "the advisory Guidelines do not fix the permissible range of sentences." Id . at 892. The advisory Guidelines were for this reason not subject to a vagueness challenge. Id . In her concurring opinion, Justice Sotomayor noted that "[t]he 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 United States v. Booker ... may mount vagueness attacks on their sentences." Id . at 903 n.4 (Sotomayor, J. , concurring in the judgment) (internal quotation marks and citation omitted).

III. Nunez’s Section 2255 Motion

On June 21, 2016, eighteen years after his federal conviction, but less than one year after Johnson was decided, Nunez filed a motion under 28 U.S.C. § 2255 to vacate his 30-year sentence. He argued that Johnson renders the residual clause of the pre- Booker Career Offender Guideline unconstitutionally vague, so he should not have been sentenced as a career offender. See Nunez v. United States , No. 16-cv-4742, 2018 WL 2371714, at *1-2 (S.D.N.Y. May 24, 2018). The district court decided the motion was untimely because "the Supreme Court has not itself extended its holding in Johnson to the pre- Booker guidelines." Id . at *2. Nunez timely appealed.

DISCUSSION

On appeal from the denial of a Section 2255 motion, we review a district court’s conclusions of law de novo. Sapia v. United States , 433 F.3d 212, 216 (2d Cir. 2005).

Motions under Section 2255 are subject to a one-year statute of limitations that runs from several possible dates, only one of which is relevant here: "[T]he 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." 28 U.S.C. § 2255(f)(3).

Nunez claims that his motion is timely under Section 2255(f)(3) because he filed it less than one year after the Supreme Court in Johnson first recognized the right he invokes. Nunez argues that his Section 2255 motion challenging a career-offender sentence imposed under the mandatory Guidelines asserts the same due process right recognized in Johnson . He argues that, like the ACCA’s residual clause, the residual clause of the mandatory Career Offender Guideline "fixed" his sentencing range and was subject to the same concerns articulated in Johnson . Because the ACCA and residual clause of the Career Offender Guideline are identically worded and interpreted, Nunez claims the holding in Johnson applies equally to the residual clause in the Guideline and, thus, compels the conclusion that Johnson recognized the right he asserts.

We, however, conclude that Johnson did not itself render the residual clause of the...