United States v. Blackstone

Citation903 F.3d 1020
Decision Date12 September 2018
Docket NumberNo. 17-55023,17-55023
Parties UNITED STATES of America, Plaintiff-Appellee, v. Antonio Dean BLACKSTONE, aka Lil Sule, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

903 F.3d 1020

UNITED STATES of America, Plaintiff-Appellee,
v.
Antonio Dean BLACKSTONE, aka Lil Sule, Defendant-Appellant.

No. 17-55023

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2018, Pasadena, California
Filed September 12, 2018


903 F.3d 1022

Alyssa Bell (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

L. Ashley Aull (argued); Bryan Y. Yang, Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, United States Attorney; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Mary M. Schroeder, Richard R. Clifton, and Milan D. Smith, Jr., Circuit Judges.

CLIFTON, Circuit Judge:

Antonio Dean Blackstone appeals the district court’s denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, the version of habeas corpus review that applies to federal sentences. In May 2000, Blackstone was sentenced to 290 months of incarceration under the then-mandatory Sentencing Guidelines, based in part on the court’s conclusion that he had previously been convicted of crimes of violence. Blackstone argues that his sentence must be vacated because, after Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the relevant Sentencing Guideline provision, U.S.S.G. § 4B1.2, is unconstitutionally vague and, as a result, his prior California convictions are no longer treated as crimes of violence under the federal sentencing laws.

Normally, a § 2255 motion must be filed within a year of the date the conviction became final, a period that expired years ago for Blackstone. See 28 U.S.C. § 2255(f)(1). The statute also authorizes filing within one year of "the date on which the right asserted was initially recognized

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by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. § 2255(f)(3). Blackstone argues that the Supreme Court recognized a new right in Johnson , a right that was made retroactively applicable in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). We conclude, however, that the Supreme Court has not yet recognized the right asserted by Blackstone. The Supreme Court has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge. As a result, Blackstone’s current motion is not timely under the statute. In reaching that conclusion, we agree with similar rulings by three other circuit courts that have considered this issue. We deny a similar challenge by Blackstone to a conviction and sentence under 18 U.S.C. § 924(c) for use of a firearm during a crime of violence because the Supreme Court has not recognized that right, either. We affirm the denial of Blackstone’s motion.

I. Background

On August 19, 1999, a jury found Antonio Dean Blackstone guilty of multiple offenses: conspiring to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 ; committing Hobbs Act robbery; and using and carrying a firearm during a "crime of violence," in violation of 18 U.S.C. § 924(c). On May 8, 2000, the district court sentenced Blackstone to a total of 290 months of incarceration. That total consisted of two parts: 230 months for the two Hobbs Act convictions (specifically, two sentences each of 230 months to be served concurrently), and sixty months for the 18 U.S.C. § 924(c) conviction, to be served consecutively to the Hobbs Act sentences. When Blackstone was sentenced, the Sentencing Guidelines were mandatory, not advisory. See United States v. Booker , 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding that prior mandatory application of the Sentencing Guidelines had violated the Sixth Amendment and that the Guidelines were "effectively advisory" going forward).

In calculating the sentence, the district court concluded that Blackstone qualified as a career offender under U.S.S.G. § 4B1.1, also known as the career offender Guideline, because he had previously been convicted of two prior felony crimes of violence: second-degree robbery, in violation of California Penal Code § 211 ; and voluntary manslaughter, in violation of California Penal Code § 192(a). As a result, Blackstone’s Guideline range for the two Hobbs Act convictions increased from 70 to 87 months to 210 to 240 months. The district court imposed a sentence of 230 months for those counts. The firearms conviction carried a mandatory consecutive sentence of 60 months, 18 U.S.C. § 924(c)(1), bringing the total to 290 months.

Blackstone appealed his sentence, but this court affirmed. United States v. Gaines , 8 F. App'x 635 (9th Cir. 2001). Blackstone’s petition for a writ of certiorari was denied. Blackstone v. United States , 534 U.S. 910, 122 S.Ct. 248, 151 L.Ed.2d 180 (2001). Thereafter, Blackstone filed a 28 U.S.C. § 2255 motion and a 28 U.S.C. § 2241 petition, both of which were denied and neither of which raised the issues presented in this appeal.

Within one year after the Supreme Court issued its opinion in Johnson , Blackstone filed an application with this court for authorization to file a second or successive motion to vacate under § 2255. That application was granted, and Blackstone filed his motion to vacate with the district court.

Blackstone’s motion presented two primary arguments. For one, he argued that Johnson also applies to the mandatory Sentencing Guidelines, in particular to the

903 F.3d 1024

residual clause of the definition of "crime of violence" within the career offender enhancement provision, U.S.S.G. § 4B1.2. Because his prior California convictions only qualified as crimes of violence based on the residual clause, he contended, his sentence for the Hobbs Act robbery convictions should be vacated and a new sentence imposed. In addition, he argued that the residual clause in 18 U.S.C. § 924(c) is void for vagueness following Johnson , so his conviction and consecutive sentence for use of a firearm in connection with a crime of violence should be vacated.

The district court concluded that Blackstone’s motion was timely because Johnson applied retroactively on collateral review to the Sentencing Guidelines and to the firearms statute, 18 U.S.C. § 924(c). But the district court denied Blackstone’s motion on the merits. It held that, even after Johnson , Blackstone’s prior California convictions for robbery and voluntary manslaughter are still crimes of violence under U.S.S.G. § 4B1.2. The district court granted a certificate of appealability on that issue. The district court held that Blackstone’s current Hobbs Act robbery convictions are for crimes of violence under 18 U.S.C. § 924(c) and did not grant a certificate of appealability for that issue.

II. The Timeliness of the Motion

We review the denial of Blackstone’s motion de novo. See United States v. Geozos , 870 F.3d 890, 894 (9th Cir. 2017). We will take up Blackstone’s two challenges separately.

A. The Hobbs Act Robbery Sentences

In addition to disputing Blackstone’s arguments on the merits, the Government continues to argue that Blackstone’s § 2255 motion is untimely. It contends that the Supreme Court’s decisions in Johnson and Welch have not authorized a motion by Blackstone at this point because those decisions pertained to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), and that neither addressed whether Johnson applies to other clauses providing for enhanced sentences based on convictions for crimes of violence.

Under the statute of limitations applicable to a § 2255 motion challenging a federal conviction and sentence, 28 U.S.C. § 2255(f), a defendant has one year to file such a motion, measured from the latest of four possible dates. Two of those dates are relevant here. One is "the date on which the judgment of conviction becomes final." Id. § 2255(f)(1). That was in 2001 for Blackstone, so the current motion is too late under that measure. The other is "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." Id. § 2255(f)(3). In other words, a right newly recognized by the Supreme Court may open the door to filing a § 2255 motion later in time. The question presented in this case is whether Johnson and Welch have opened that door. We conclude that they have not.

1. Johnson and Subsequent Supreme Court Decisions

In Johnson , the Supreme Court held that part of the definition of "violent felony" in the ACCA is void for vagueness. 135 S.Ct. at 2557. The ACCA provided for a sentencing enhancement if a defendant had three previous convictions "for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The statute defined "violent felony" in multiple ways.1 The problem identified in Johnson concerned the last portion of the definition,

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