Shea v. United States, No. 17-1899

• Citation: 976 F.3d 63
• Decision Date: 28 September 2020
• Docket Number: No. 17-1899
• Parties: Anthony M. SHEA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

976 F.3d 63

Anthony M. SHEA, Petitioner, Appellant,

v.UNITED STATES of America, Respondent, Appellee.

No. 17-1899

United States Court of Appeals, First Circuit.

September 28, 2020

Wade M. Zolynski, Federal Public Defender Office, for appellant.

Seth Aframe, Assistant United States Attorney, for appellee.

Before Thompson, Selya, and Barron, Circuit Judges.

THOMPSON, Circuit Judge.

In Johnson v. United States, 576 U.S. 591, 597, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held that a jumble of words in a federal law could not be used to fix a defendant's sentence, a rule that applies retroactively. See Welch v. United States, ––– U.S. ––––, 136 S. Ct. 1257, 1264, 194 L.Ed.2d 387 (2016). Years ago, judges used the same wording in another binding rule with "the force and effect of law[ ]," United States v. Booker, 543 U.S. 220, 234, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) — § 4B1.2(a)(2) of the U.S. Sentencing Guidelines — to fix defendants' sentences. Because Johnson made that unconstitutional, we reverse the district court's decision denying the motion to vacate and remand for further proceedings.

Background

Twenty-five years ago, Anthony M. Shea drove a stolen minivan to try to rob a bank in Londonderry, New Hampshire. See United States v. Shea, 159 F.3d 37, 38 (1st Cir. 1998). Using a pair of revolvers, Shea and another robber marched two bank tellers to the vault. Id. When the tellers couldn't open it (a timed locking device kept it shut), Shea and his partner left empty-handed. Id. One week later, Shea's criminal career came to an abrupt stop: after another aborted robbery in neighboring Massachusetts, his getaway car hit a telephone pole. See United States v. Shea, 150 F.3d 44, 47 (1st Cir. 1998). A squad of FBI agents, who'd been in hot pursuit, pulled Shea from the wreckage and a black revolver from his pants. See id. One of the Londonderry tellers later identified the gun as the weapon Shea had used in New Hampshire. Shea, 159 F.3d at 38.

For the Londonderry robbery, Shea was tried in the federal court for the District of New Hampshire, where a jury found him guilty of four charges: armed attempted bank robbery under 18 U.S.C. § 2113(a) and (d), using a firearm during a crime of violence under 18 U.S.C. § 924(c), interstate transportation of a stolen vehicle under 18 U.S.C. § 2312, and interstate possession of a stolen vehicle under § 2312. Id. at 38. For purposes of Count Two, § 924(c)(3) defined "crime of violence" as a felony offense that

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

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). The government alleged that Count One — the armed attempted bank robbery — qualified as a "crime of violence." Soon after the guilty verdict, the judge sentenced Shea to 567 months (that is, over forty-seven years) in federal prison, where he dwells to this day.¹

At the time, the U.S. Sentencing Guidelines ordinarily set the range of sentences the judge could impose. Then, as they do now, the Guidelines gave each defendant two scores — an "offense level" (based on the seriousness of his offense of conviction, plus specified aggravating and mitigating facts in the defendant's particular case) and a "criminal history category" (based on the defendant's prior convictions). United States v. Martínez-Benítez, 914 F.3d 1, 2 n.2 (1st Cir. 2019). The judge plotted those two scores on a chart and got the applicable sentencing range. Id. When Shea was sentenced, the Guidelines were "mandatory and binding on all judges." Booker, 543 U.S. at 233, 125 S.Ct. 738.

To begin with, Shea's crimes of conviction and (fairly long) criminal history gave him an offense level of 28 and a criminal history category of V. See U.S. Sentencing Guidelines Manual ch. 3, pt. A (U.S. Sentencing Comm'n 1995) (hereinafter "U.S.S.G."). Standing alone, that would have yielded a Guideline range of 130–162 months in prison, plus the mandatory twenty-year consecutive sentence for his § 924(c) conviction, which was unaffected by the Guideline calculation — nothing to shrug off. As then required, however, the judge classified Shea as a "Career Offender" under § 4B1.1, which applies when a defendant commits his third "crime of violence" or "controlled substance offense." U.S.S.G. § 4B1.1. At the time, the Guidelines defined "crime of violence" like the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B), defined "violent felony": as a felony offense 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.

U.S.S.G. § 4B1.2(a) (1997) (emphasis added). (Stick a pin in this: the first sentence is known as the "force clause" and the last, catch-all phrase is known as the "residual clause"). The court determined that two of Shea's past convictions — one in 1982 for federal armed bank robbery and another in 1992 for assault and battery on a police officer ("ABPO") under Massachusetts law — both fit the bill. At the time, they were both qualifying offenses under the residual clause. See United States v. Fernandez, 121 F.3d 777, 778–80 (1st Cir. 1997) ; United States v. McVicar, 907 F.2d 1, 1 (1st Cir. 1990). The Career Offender Guideline rocketed Shea's Guideline range (again minus the twenty-year § 924(c) tack-on) from 130–162 months to 262–327 months in prison. Because the Guidelines were mandatory, and no one (including the judge) identified any ground for departure, Shea claims that none was available, which meant the judge had to sentence him within the Guideline range.

A lot changed in the next twenty years. In Booker, the Supreme Court held the mandatory Guidelines system unconstitutional and struck the provision that made them binding on judges. 543 U.S. at 245, 125 S.Ct. 738. Now the Guidelines are "effectively advisory." Id. "Although [they] remain ‘the starting point and the initial benchmark’ for sentencing, a sentencing court may no longer rely exclusively on the Guidelines range; rather, the court ‘must make an individualized assessment based on the facts presented’ and the other statutory factors." Beckles v. United States, ––– U.S. ––––, 137 S. Ct. 886, 894, 197 L.Ed.2d 145 (2017) (quoting Gall v. United States, 552 U.S. 38, 49–50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (explaining that a sentencing judge may not even "presume the [guideline] range is reasonable").

Then, five terms ago, the Court held that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process" because the clause was unconstitutionally vague. Johnson, 576 U.S. at 606, 135 S.Ct. 2551. In doing so, the Court overturned its own precedent and announced a "new rule" of law — a rule not "dictated by precedent." Welch, 136 S. Ct. at 1264 (emphasis omitted) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ). "Generally, new rules of law do not apply to cases concluded before the new law is recognized."

Butterworth v. United States, 775 F.3d 459, 463 (1st Cir. 2015). But the Supreme Court soon made clear that Johnson triggered an exception: as a "substantive" rule that curbed the scope of a criminal law (the ACCA), it applies retroactively. See Welch, 136 S. Ct. at 1265–68.

Within a year after the Johnson decision, Shea moved to vacate his conviction and sentence under 28 U.S.C. § 2255, urging that the Court's reasoning in Johnson made the similar residual clauses in § 924(c) and § 4B1.2(a) unconstitutionally vague, as well. Shea argued that shorn of that clause, § 924(c) did not support his conviction for carrying a firearm in relation to a "crime of violence," and the pre- Booker Career Offender Guideline wrongfully enhanced his sentence. He urged (as he does on appeal) that his instant conviction for armed attempted bank robbery under federal law did not satisfy § 924(c)'s force clause, and that none of his prior convictions — including for federal armed bank robbery, Massachusetts ABPO, and Massachusetts assault and battery ("A&B") — satisfied § 4B1.2(a)'s force clause or matched the generic offenses it enumerates. See United States v. Faust, 853 F.3d 39, 58 (1st Cir. 2017) (holding intentional ABPO is not a violent felony under the ACCA's identical force clause); see also United States v. Rose, 896 F.3d 104, 110, 115 (1st Cir. 2018) (explaining that crimes carrying a mens rea of ordinary recklessness, including assault and battery with a dangerous weapon under Massachusetts and Rhode Island law, are not violent felonies under the force clause). Shea therefore asked the judge to vacate his § 924(c) (Count Two) conviction and resentence him without the Career Offender enhancement.

Generally, the federal habeas statute demands a prisoner file any motion to vacate within a year of "the date on which the judgment of conviction became final." 28 U.S.C. § 2255(f)(1). There are exceptions, though. Section 2255(f)(3) restarts the one-year clock on "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." Using that springboard, Shea claimed that Johnson reopened the one-year window to mount his vagueness challenges to the § 924(c) and § 4B1.2(a)(2) residual clauses, so the court should vacate his § 924(c) conviction and resentence him without the career-offender enhancement.

The district judge disagreed and dismissed Shea's claims. Shea had blown the usual one-year...