United States v. Autrey

• Citation: 263 F.Supp.3d 582
• Decision Date: 19 June 2017
• Docket Number: Criminal No. 1:99–cr–467,Civil Action No. 1:16–cv–788
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Tylan Tremaine AUTREY

263 F.Supp.3d 582

UNITED STATES of America

v.Tylan Tremaine AUTREY

Criminal No. 1:99–cr–467

Civil Action No. 1:16–cv–788

United States District Court, E.D. Virginia, Alexandria Division.

Signed June 19, 2017

MEMORANDUM OPINION

T. S. Ellis Ill, United States District Judge

At issue in this kidnapping case is defendant's petition to set aside and correct his sentence pursuant to 28 U.S.C. § 2255 and the Supreme Court's recent decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

On February 15, 2000, defendant pled guilty to one count of kidnapping, in violation of 18 U.S.C. § 1201. Thereafter, on April 21, 2000, defendant received a sentence of 262 months' imprisonment as a career offender because defendant's kidnapping offense constitutes a "crime of violence," and because defendant had at least two prior convictions for "controlled substance offense[s]" or crimes of violence pursuant to the United States Sentencing Guidelines ("U.S.S.G.") §§ 4B1.1 & 4B1.2.

Over 15 years later, defendant has moved pursuant to 28 U.S.C. § 2255 to vacate and correct his sentence on the ground that the Supreme Court's decision in Johnson operates to invalidate U.S.S.G. § 4B1.2's residual clause. A hearing on the motion is unnecessary because the matter has been fully briefed and the facts and law are fully set forth in the existing record, and because "the motion and the files of the case conclusively show that the prisoner is entitled to no relief[.]" 28 U.S.C. § 2255(b).

Accordingly, the matter is now ripe for disposition and must be denied.

I.

In July 1999, defendant and a confederate carjacked and kidnapped a woman in Fairfax County, Virginia. Defendant drove the victim to the District of Columbia and there ordered her to exit her car. Defendant then drove the vehicle to Texas, where he and his confederate were arrested. Thereafter, a grand jury indicted defendant on one count of kidnapping in violation of 18 U.S.C. § 1201(a) and one count of interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312. On February 15, 2000, defendant pled guilty to the kidnapping charge. At sentencing on April 21, 2000, defendant received a sentence of 262 months' imprisonment, a sentence at the bottom of the Guidelines range after applying § 4B1.1's career offender sentencing enhancement.

In the course of the sentencing hearing, defendant was deemed a career offender pursuant to § 4B1.1 because his instant offense, kidnapping, was a crime of violence, and because he had prior convictions for at least one "controlled substance offense" and one "crime of violence" as defined by the then-mandatory Guidelines. See U.S.S.G. §§ 4B1.1 & 4B1.2.¹ Specifically, the Guidelines at the time 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2 (1998) (emphasis added). The first clause in subsection (1) is commonly referred to as the "force clause," whereas the italicized clause in subsection (2) is commonly referred to as the "residual clause." See Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 891, 197 L.Ed.2d 145 (2017). The term, "physical force," as used in § 4B1.2's force clause means "force capable of physical pain or injury to another person." Curtis Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Curtis Johnson ").

Specifically, the Presentence Investigation Report prepared in this case reflected (1) that defendant's kidnapping conviction constituted a crime of violence under § 4B1.2, (2) that defendant had a prior "controlled substance offense" conviction for possessing with intent to distribute cocaine, and (3) that defendant had previously committed a "crime of violence" by violating Virginia's maiming statute, Va. Code § 18.2–51.² Accordingly, defendant's mandatory Guidelines range was 262 to 327 months' imprisonment. Without the career offender finding, defendant's Guidelines range would have been 120 to 150 months' imprisonment. Defendant's sentence of 262 months of imprisonment thus represented the bottom of the Guidelines range for his kidnapping conviction and career offender enhancement.

Fifteen years after defendant's conviction became final, the Supreme Court issued its decision in Johnson v. United States , addressing the definition of a "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). See ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569. There, the Supreme Court held that the ACCA's residual clause—the provision that defines a "violent felony" to include offenses that "involve[ ] conduct that presents a serious potential risk of physical injury to another"³ —is unconstitutionally vague, and that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563. Thereafter, on April 18, 2016, the Supreme Court held that Johnson announced a new "substantive rule that has retroactive effect in cases on collateral review." Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

On April 26, 2016, defendant filed a letter asking for "review" of his conviction and sentence. Subsequently, defendant was appointed counsel, and on June 26, 2016, counsel filed a § 2255 motion defendant's behalf. Defendant contends in his motion that Johnson operates to invalidate his sentence insofar as the Supreme Court's decision undermined the residual clause of U.S.S.G. § 4B1.2.

The day after defense counsel filed this § 2255 motion, on June 27, 2016, the Supreme Court granted certiorari in Beckles v. United States to address (1) whether the holding of Johnson applies to the residual clause of U.S.S.G. § 4B1.2, which is identical to the ACCA residual clause invalidated in Johnson ,⁴ and (2) whether Johnson applies retroactively to collateral challenges to federal sentences enhanced pursuant to the residual clause of U.S.S.G. § 4B1.2. See Beckles v. United States , ––– U.S. ––––, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). Thereafter, on July 15, 2016, the government moved for an order holding defendant's motion in abeyance pending the Supreme Court's decision in Beckles , which motion was granted. Several months later, the Supreme Court issued its Beckles opinion, concluding that "the advisory Sentencing Guidelines are not subject to a due process vagueness challenge" and thus § 4B1.2's "residual clause is not void for vagueness" in the context of advisory Guidelines. 137 S.Ct. at 897 (emphasis added).

Because the Supreme Court did not address mandatory Guidelines, defendant argues that Beckles is inapplicable and that his prior convictions for "crimes of violence" cannot constitutionally function as predicate offenses for his sentence enhancement. In defendant's view, Johnson 's reasoning regarding the ACCA's residual clause renders unconstitutional § 4B1.2's residual clause. In this regard, defendant asserts that none of his convictions qualifies as a crime of violence pursuant to § 4B1.2's force clause, and that therefore his career offender classification depends on the unconstitutional residual clause.

In response, the government has offered several procedural and substantive arguments, contending, inter alia , that defendant's § 2255 motion is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255(f).

For the reasons that follow, defendant's motion must be denied.

II.

To begin with, the government correctly observes that defendant's § 2255 motion is tardy. Specifically, the government asserts that because defendant filed his § 2255 motion almost two decades after his kidnapping conviction and sentence became final, the motion is barred by the one-year limitations period set forth in 28 U.S.C. § 2255(f)(1). Defendant seeks to avoid this result by arguing that his June 26, 2016 motion is timely pursuant to 28 U.S.C. § 2255(f)(3), which opened a one-year limitations period from June 26, 2015, the date Johnson was decided. This argument fails.⁵

Section 2255(f)(3) provides that a one-year limitations period runs from "the date on which the right asserted [by the movant] 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).⁶ In this regard, the Fourth Circuit has explained that a movant invoking § 2255(f)(3) must establish the following:

(1) that the Supreme Court recognized a new right;

(2) that the right ‘has been ... made retroactively applicable to cases on collateral review’; and

(3) that [the movant] filed his motion within one year of the date on which the Supreme Court recognized the right.

United States v. Mathur , 685 F.3d 396, 398 (4th Cir. 2012) (quoting § 2255(f)(3) ). Notably, the statute explicitly requires that the new right be recognized by the Supreme Court itself before a movant may properly invoke § 2255(f)(3). In other words, it is for the Supreme Court, not an "inferior court"⁷ —that is, a federal appellate or district court—to recognize the new right and to make it retroactive on collateral review for purposes of § 2255(f)(3). In the Fourth Circuit's words, § 2255(f)(3)"does not authorize [a lower court] to read between the lines of a prior opinion [by the Supreme Court] to discern whether that opinion, by implication, made a new rule retroactively applicable on collateral review." Mathur , 685 F.3d at 401 (holding that a § 2255 motion was time-barred). Simply put, defendant's argument fails because Johnson announced no new right applicable to the mandatory Guidelines.

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