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Cross v. United States

United States Court of Appeals, Seventh Circuit

June 7, 2018

De'Angelo A. Cross, Petitioner-Appellant,
United States of America, Respondent-Appellee, and Carl Leo Davis, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued January 10, 2018

          Appeals from the United States District Court for the Eastern District of Wisconsin. No. 15-C-1338 - J. P. Stadtmueller, Judge, and No. 16-C-747 - William C. Griesbach, Chief Judge.

          Before Wood, Chief Judge, Hamilton, Circuit Judge, and Bucklo, District Judge. [*]

          Wood, Chief Judge.

         When compliance with the U.S. Sentencing Guidelines was still understood to be mandatory, district courts were required to impose an extended term of incarceration on so-called career criminals. This class of repeat felons was limited to those previously convicted twice for drug crimes or crimes of violence. The later offenses included any felony "involv[ing] conduct that present[ed] a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2) (1992); U.S.S.G. § 4B1.2(a)(2) (2000). We will call that definition of a crime of violence the "residual clause" in this opinion.

         The Supreme Court jetisoned the mandatory nature of the guidelines in 2005, in its decision in United States v. Booker, 543 U.S. 220. The Booker decision did not, however, immediately affect sentences imposed on defendants previously. Thus, De'Angelo Cross and Carl Davis continued to serve obligatory sentences as career offenders as required by the mandatory guidelines. Both Cross and Davis qualified for that designation because of the residual clause. Their present appeal challenged the constitutionality of that clause.

         Tw o recent developments form the backdrop for our decision: first, the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), that the identical language in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012), is unconstitutionally vague; and second, the Court's ruling in Beck-les v. United States, 137 S.Ct. 886 (2017), that Johnson does not extend to the post-Booker advisory guidelines, including the career-offender guideline. We conclude that Beckles applies only to advisory guidelines, not to mandatory sentencing rules. Under Johnson, the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants. Cross and Davis are both entitled to be resentenced.


         Cross and Davis brought their cases to the district court through motions under 28 U.S.C. § 2255 for relief from their sentences. Each was unsuccessful before the district court and appealed to this court. In light of the substantial overlap in the issues presented, we consolidated their cases.

         When the district court sentenced Cross (2000) and Davis (1992), the then-mandatory sentencing guidelines prescribed an elevated sentence for those denominated career offenders. U.S.S.G. § 4B1.1. A defendant qualified as a career offender upon his third felony conviction for either a crime of violence or a drug offense. Id. The guidelines defined the term "crime of violence" in three ways: an elements approach, U.S.S.G. § 4B1.2(a)(1); an enumerated offense approach, id. § 4B1.2(a)(2), first part; and the residual clause, id. § 4B1.2(a)(2), final clause. As we noted, the residual clause covered any offense that "involves conduct that presents a serious potential risk of physical injury to another." Id. Both Cross and Davis were sentenced as career offenders on the basis of the residual clause, and neither objected at trial. Davis did not file a direct appeal. Although Cross filed a notice of appeal (despite generally waiving his right to appeal or to file for collateral relief in his plea agreement), this court dismissed his case as frivolous after his atorney filed a no-merit brief to which Cross did not respond. United States v. Cross, 24 Fed.Appx. 576, 577 (7th Cir. 2001); see Anders v. California, 386 U.S. 738, 744-45 (1967).

         Since Davis's and Cross's convictions, the Supreme Court has dramatically altered the federal sentencing landscape. First, Booker demoted the federal sentencing guidelines from mandatory to advisory. 543 U.S. 220. Then Johnson struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague, overruling contrary decisions in James v. United States, 550 U.S. 192');">550 U.S. 192 (2007), and Sykes v. United States, 564 U.S. 1 (2011), and upseting a host of decisions from every court of appeals in the country. The residual clause of the ACCA, which imposed increased minimum and maximum sentences, used identical language to that employed in the guidelines. Compare 18 U.S.C. § 924(e)(2)(B) (2012) with U.S.S.G. § 4B1.2(a)(2) (1992 and 2000). The Court subsequently declared Johnson retroactive. Welch v. United States, 136 S.Ct. 1257 (2016). Meanwhile, the Court applied the ex post facto clause to bar a retrospective increase in an advisory guidelines range. Peugh v. United States, 569 U.S. 530 (2013). Yet contrary to this circuit's expectations, see United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en banc) (declaring the residual clause in the advisory guidelines void for vagueness under Johnson), the Court held in Beckles that the void-for-vagueness doctrine has no role to play in the advisory guidelines and upheld the use of the residual clause in that context, 137 S.Ct. 886.

         In light of these developments and within one year of Johnson, Cross and Davis each sought resentencing under 28 U.S.C. § 2255. In Cross's case, even though the judge expressed considerable sympathy for Cross's vagueness argu- ment, he thought himself bound by this court's refusal to entertain vagueness challenges to the mandatory guidelines in United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999), and advisory guidelines in United States v. Tichenor, 683 F.3d 358, 364-65 (7th Cir. 2012). Notwithstanding the fact that we had reversed course in Hurlburt, the judge "c[ould] not conclude with certainty that Hurlburt's abrogation of Tichenor [and Brierton] remain[ed effective] notwithstanding Beckles, " in which the Supreme Court abrogated the specific holding of Hurlburt. In the alternative, he held that the broad waiver of appellate rights in Cross's plea agreement could not be overcome, even though the appeal waiver permited motions "based on … the sentencing court's reliance on any constitutionally impermissible factor."

         A different district judge handled Davis's motion, but he too concluded that relief was not in order. He found that Da-vis's motion was barred by the one-year limitations period in 28 U.S.C. § 2255(f). He acknowledged that section 2255(f)(3) reopens the limitations period for an additional year from "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). He also recognized that Davis filed his petition within a year of Johnson's issuance. Nonetheless, the judge believed that the Supreme Court's invalidation of the residual clause in the ACCA did not carry over to the residual clause in the pre-Booker, mandatory version of the career-criminal sentencing guideline. In the alternative, he held that Davis qualified as a career offender under the elements clause of the guidelines. See U.S.S.G. § 4B1.2(a)(1) ("crime of violence" also includes any felony that "has as an element the use, atempted use, or threatened use of physical force"). On that basis, he concluded that Davis was still a career offender notwithstanding Johnson.


         Because Cross's and Davis's appeals present legal, rather than factual disputes, we consider the district courts' conclusions de novo. Delatorre v. United States, 847 F.3d 837, 843 (7th Cir. 2017). We begin by explaining why we reject the various procedural hurdles that the government has raised as a bar to our reaching the merits of both these appeals.


         Cross and Davis each filed his section 2255 motion within one year of the Supreme Court's decision in Johnson. The government nonetheless argues that their motions were untimely. Federal prisoners "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States" may ask the sentencing court to "vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). They must, however, file their motion within a specified time. Id. § 2255(f). The only limitation period potentially applicable to Cross's and Davis's cases runs for one year from "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). Dodd v. United States clarifies that this limitation period begins when the Supreme Court declares a new right, not when courts first acknowledge that right to be retroactive. 545 U.S. 353, 356-60 (2005). Thus, the timeliness of Cross's and Davis's motions hinges on whether the right they "assert[] was initially recognized by" Johnson. 28 U.S.C. § 2255(f)(3).

         The government argues that Johnson recognized the invalidity of the residual clause only vis-à-vis the ACCA. Cross and Davis, unlike Johnson, were sentenced under the residual clause of the guidelines. The government concludes, therefore, that section 2255(f)(3) cannot help them, unless and until the Supreme Court explicitly extends the logic of Johnson to the pre-Booker mandatory guidelines. The Fourth and Sixth Circuits have both accepted this view. Raybon v. United States, 867 F.3d 625, 629-31 (6th Cir. 2017); United States v. Brown, 868 F.3d 297, 301-04 (4th Cir. 2017). The First Circuit has rejected it. Moore v. United States, 871 F.3d 72, 80-84 (1st Cir. 2017).

         The government's approach suffers from a fundamental flaw. It improperly reads a merits analysis into the limitations period. Section 2255(f)(3) runs from "the date on which the right asserted was initially recognized by the Supreme Court." 28 U.S.C. § 2255(f)(3) (emphasis added). It does not say that the movant must ultimately prove that the right applies to his situation; he need only claim the benefit of a right that the Supreme Court has recently recognized. An alternative reading would require that we take the disfavored step of reading "asserted" out of the statute. See Duncan v. Walker, 533 U.S. 167, 174 (2001) ("It is our duty 'to give effect, if possible, to every clause and word of a statute." (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955)).

         Here, Cross and Davis claim the right to be resentenced on the ground that the vague (yet mandatory) residual clause unconstitutionally fixed their terms of imprisonment. The right not to be sentenced under a rule of law using this vague language was recognized in Johnson. 135 S.Ct. at 2556-57 ("The prohibition of vagueness in criminal statutes … appl[ies] not only to statutes defining elements of crimes, but also to statutes fixing sentences … . [T]he indeterminacy of the … residual clause … denies due process of law."); see also Beckles, 137 S.Ct. at 892 ("In Johnson, we applied the vagueness rule to a statute fixing permissible sentences. The ACCA's residual clause … fixed-in an impermissibly vague way-a higher range of sentences for certain defendants.").

         We are satisfied that the requirements of section 2255(f)(3) are met. Under Johnson, a person has a right not to have his sentence dictated by the unconstitutionally vague language of the mandatory residual clause. Davis and Cross assert precisely that right. They complied with the limitations period of section 2255(f)(3) by filing their motions within one year of Johnson. See also Vitrano v. United States, 721 F.3d 802, 807-08 (7th Cir. 2013) (holding that the Supreme Court recognized the general right not to be subject to an enhanced sentence based on an understanding of the term "violent felony" that conflicted with Begay v. United States, 553 U.S. 137, 148 (2008), and thus holding motion under section 2255 untimely when it was filed more than a year after Begay was decided).


         The government next raised the ubiquitous specter of procedural default. Because neither Cross nor Davis challenged the constitutionality of the residual clause at trial or on direct appeal, the government argues they are barred from doing so now.

         As an initial mater, forfeiture and waiver can stymie an appellee as well as an appellant. In Cross's case, the government waived its procedural default argument vis-à-vis Cross by failing to assert it adequately in the district court. Atempt-ing to make the best of a bad showing, the government admits that it raised procedural default only "succinctly" in a footnote. This is not enough, as we have held repeatedly. United States v. White, 879 F.2d 1509, 1513 (7th Cir. 1989); see also Harmon v. Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013).

         In general, habeas corpus petitioners may not raise any issue that they might have presented on direct appeal. McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). A petitioner may, however, overcome procedural default by showing cause for the default and actual prejudice, Bousley v. United States, 523 U.S. 614, 622 (1998), or that "failure to consider the defaulted claim will result in a fundamental miscarriage of justice, " Johnson v. Loftus, 518 F.3d 453, 455-56 (7th Cir. 2008). Cross and Davis have established their right to raise this claim by way of the "cause and prejudice" avenue. We thus have no need to discuss the question whether the "fundamental miscarriage of justice" approach might also support their motions.

         We have no doubt that an extended prison term-which was imposed on both men as a result of their designation as career offenders-constitutes prejudice. See Glover v. United States, 531 U.S. 198, 203 (2001). That narrows our inquiry to whether they have shown cause for not objecting at trial. A change in the law may constitute cause for a procedural default if it creates "a claim that 'is so novel that its legal basis is not reasonably available to counsel.'" Bousley, 523 U.S. at 622 (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). In Reed, the Court identified three nonexclusive situations in which an atorney may lack a "reasonable basis" to raise a novel claim:

First, a decision of this Court may explicitly overrule one of our precedents. Second, a decision may "over-tur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved." And, finally, a decision may "dis-approv[e] a practice this Court arguably has sanctioned in prior cases."

Reed, 468 U.S. at 17 (quoting United States v. Johnson, 457 U.S. 537, 551 (1982)).

         The government, relying on a footnote in Richardson v. Lemke, 745 F.3d 258, 274 n.7 (7th Cir. 2014), suggests that Reed is no longer good law. In Richardson, we assumed the validity of Reed, even as we noted that in Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990), we had questioned Reed's continuing force after Teague v. Lane, 489 U.S. 288 (1989). Later cases, however, put our concerns to rest. The Supreme Court has since relied on Reed, see Bousley, 523 U.S. at 622, as have we, e.g., McCoy v. United States, 815 F.3d at 295- 96 (7th Cir. 2016); McKinley v. Butler, 809 F.3d 908, 912 (7th Cir. 2016). Moreover, Prihoda did not hold that legal change as understood by Reed could never constitute cause; rather, it said that legal change had to qualify as retroactive under Teague for the petitioner to prevail. Prihoda, 910 F.2d at 1385-86. In other words, we thought that legal change under Teague was concentrically nested within legal change under Reed, rendering the latter superfluous once a claim qualified under Teague. Id.

         Cross and Davis could not reasonably have challenged the guidelines residual clause when the district court sentenced them in 1992 and 2000 respectively. On this point, we agree with our sister circuits that "no one-the government, the judge, or the [defendant]-could reasonably have anticipated Johnson." United States v. Snyder, 871 F.3d 1122, 1127 (10th Cir. 2017) (quoting United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016)). In fact, the Johnson Court expressly overruled its own precedent, 135 S.Ct. 2563 ("Our contrary holdings in James[, 550 U.S. 192');">550 U.S. 192, ] and Sykes[, 131 S.Ct. 2267, ] are overruled."), and so satisfied the first criterion of Reed. Although Johnson involved the ACCA rather than the career-offender guidelines, the language it evaluated was nearly identical to that in the career-offender guidelines. We acknowledge that the cases overruled by Johnson were not decided until 2007 and 2011-after the petitioners' sentencing- and thus could not themselves have influenced petitioners' failure to object at trial. Nonetheless, when the Supreme ...

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