United States v. Swerdon

• Decision Date: 19 September 2016
• Docket Number: No. 3:12cr87, No. 3:16cv313,3:12cr87
• Citation: 207 F.Supp.3d 525
• Parties: UNITED STATES of America v. Joseph SWERDON, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

207 F.Supp.3d 525

UNITED STATES of America

v.Joseph SWERDON, Defendant.

No. 3:12cr87

No. 3:16cv313

United States District Court, M.D. Pennsylvania.

Signed September 19, 2016

John C. Gurganus, Jr., Assistant U.S. Attorney—U.S. Attorney's Office, Scranton, PA, for United States of America.

Shelley L. Centini, Shelly L. Centini, Esq., Wilkes-Barre, PA, for Defendant.

MEMORANDUM

JAMES M. MUNLEY, United States District Judge

Before the court for disposition is Defendant Joseph Swerdon's (hereinafter "defendant") motion under 28 U.S.C. § 2255 (hereinafter " section 2255") to vacate, set aside, or correct his sentence. (Doc. 51). The matter has been fully briefed and is ripe for disposition. After careful consideration, we will grant the defendant's motion.

Background

The United States (hereinafter "government") filed a criminal complaint against the defendant on August 25, 2011, alleging that on or about October 30, 2010, he aided and abetted a bank robbery and conspired to use a firearm in relation to the bank robbery. (Doc. 1, Criminal Compl.). On April 30, 2012, the defendant pled guilty to these crimes. (Doc. 36, Def.'s Plea).

In preparation for sentencing, the United States Probation Office prepared a presentence investigation report (hereinafter "PSR") on July 17, 2012. The PSR determined the defendant to be a "career offender" under the U.S. Sentencing Guidelines (hereinafter "U.S.S.G." or "Sentencing Guidelines" or "Guidelines") based on a prior Pennsylvania conviction for resisting arrest and a prior controlled substance offense.¹ (PSR ¶¶ 35, 49 & 60). Thus, the PSR calculated the defendant's sentencing guideline range to be 188 to 235 months based on a total offense level of 31 and a criminal history category of VI. (PSR ¶ 95).

On September 19, 2012, we sentenced the defendant to ninety-four (94) months of incarceration. (Doc. 48, Judgment). We departed from the guideline range based on a 5K1.1 plea agreement. (Statement of Reasons ¶ V). The defendant did not directly appeal his sentence. Due to medical issues, the defendant is presently serving his sentence at the federal medical facility located in Springfield, Missouri.

The defendant filed the instant section 2255 motion on February 22, 2016. (Doc. 51). He contends that, following the Supreme Court of the United States' decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his prior conviction for resisting arrest no longer qualifies as a crime of violence, and therefore, his classification as a career offender under the Sentencing Guidelines violates due process of law. Moreover, absent the Career Offender Guidelines' enhancement, the defendant argues his guideline range would be reduced to 130 to 162 months based on an offense level of 27 and criminal history category of VI. Thus, according to the defendant, a comparable downward departure would reduce his actual sentence. The parties then briefed the issues, bringing the case to its current procedural posture.

Jurisdiction

As defendant brings his motion under section 2255, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We also have jurisdiction under 28 U.S.C. § 2241 ("Writs of habeas corpus may be granted by...the district courts[.]").

Standard of Review

Generally, a federal prisoner in custody under the sentence of a federal court may, within one year from when the judgment becomes final, move the sentencing court to "vacate, set aside, or correct" a sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Federal law also provides that a federal prisoner may file a section 2255 motion within one year from "[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). A section 2255 motion may attack a federal prisoner's sentence on any of the following grounds: "[1] that the judgment was rendered without jurisdiction, or [2] that the sentence imposed was not authorized by law or otherwise open to collateral attack, or [3] that there has been such a denial or infringement of the Constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack...." 28 U.S.C. § 2255(b).

Section 2255, however, does not afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig , 10 F.3d 968, 977 n.25 (3d Cir. 1993). Rather, section 2255 permits relief for an error of law or fact constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman , 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio , 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) ). If the court determines that the sentence was not authorized by law, was unconstitutional, or is otherwise open to collateral attack, the court must either vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate. See 28 U.S.C. § 2255(b).

Discussion

The defendant argues that his Pennsylvania resisting arrest conviction no longer qualifies as a "crime of violence" under the Sentencing Guidelines, and that he should be resentenced.² The government challenges the defendant's section 2255 motion on four grounds. First, the vagueness doctrine does not apply to the Sentencing Guidelines. Second, if the vagueness doctrine does apply to the sentencing guidelines rendering the Career Offender Guidelines' residual clause unconstitutional, this new rule does not apply retroactively. Third, the defendant waived his right to collaterally attack his conviction and sentence. Fourth, the defendant procedurally defaulted on his Johnson claim.

Prior to addressing the government's arguments, we will briefly discuss recent Supreme Court cases that redefine and inform the substantive contours of this area of law.

I. Recent Supreme Court opinions

Over the past fifteen months, the Supreme Court of the United States has issued three opinions regarding the Fifth Amendment Due Process Clause's prohibition on vague criminal laws and the interplay between the Sentencing Guidelines and federal sentences.³ On June 26, 2015, the Supreme Court determined that the Armed Career Criminal Act's (hereinafter "ACCA") residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), violates the Fifth Amendment Due Process Clause's prohibition against vague criminal laws.⁴

Johnson , 135 S.Ct. at 2563. Thus, after Johnson , the sentences of criminal defendants can no longer be increased using the ACCA's residual clause.

The following term, the Supreme Court declared that its decision in Johnson announced a substantive rule that applies retroactively to cases on collateral review—even cases that were final before Johnson . Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). Two days after the Supreme Court decided Welch , the Court addressed the Sentencing Guidelines and discussed the significant role the Guidelines play in sentencing federal defendants. Specifically, the Court held that a criminal defendant establishes a reasonable probability of a different sentence when the trial court sentences him under an incorrect guideline range, regardless of whether or not the defendant's ultimate sentence falls within the correct range. Molina – Martinez v. United States , ––– U.S. ––––, 136 S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016).

Accordingly, we must address whether these legal precepts apply to the identically-worded Career Offender Guidelines' residual clause, U.S.S.G. § 4B1.2(a)(2) (hereinafter " § 4B1.2(a)(2)") and if so, whether our decision announces a substantive rule retroactive to cases on collateral review. If necessary, we will then address the government's arguments pertaining to waiver and procedural default.

II. Vagueness doctrine applies to the federal sentencing guidelines

The defendant argues that the vagueness problems that led to the unconstitutionality of the ACCA's residual clause in Johnson render the identically-worded Career Offender Guidelines' residual clause equally unconstitutional. We agree.

The Third Circuit Court of Appeals recently determined this very issue that Johnson 's holding—the ACCA's residual clause, 18 U.S.C. § 924(e)(1), is unconstitutional as void for vagueness under the Fifth Amendment's Due Process Clause—applies to the identically-worded Career Offender Guidelines' residual clause. United States v. Calabretta , 831 F.3d at 134 (3d Cir. 2016) ; United States v. Cabrera , 660 Fed.Appx. 126, 131–32, 2016 WL 4375623, at *4 (3d Cir. Aug. 17, 2016). Thus, the Career Offender Guidelines' residual clause is unconstitutional as void for vagueness. Id.

III. Retroactivity

Having determined that the Career Offender Guidelines' residual clause is unconstitutional, we next address the issue of retroactivity–that is, whether this new rule applies retroactively to Guidelines cases on collateral review. Under Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), "courts must give retroactive effect to new substantive rules of constitutional law," while new rules of criminal procedure generally do not apply on collateral review. Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016). " ‘A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.’ " Welch , 136 S.Ct. at 1264–65 (quoting Schriro v. Summerlin , 542 U.S. 348, 353 , 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ).

For reasons recently explained by other courts, we will give retroactive effect to our determination that § 4B1.2(a)(2)'s residual clause is unconstitutional. See, e.g. , In re Encinias , 821 F.3d 1224, 1226 (10th Cir. Apr. 29, 2016) ; ...