Opinion
Case No. 3:16-CV-620 Case No. 3:14-CR-146-RPC-1
06-22-2016
Jeffrey Townsley Plaintiff v. United States of America Defendant
(
Memorandum
I. Background.
We consider here a Motion to Correct Sentence (Doc. 53) pursuant to 28 U.S.C. § 2255 filed by Petitioner Jeffrey Townsley. Mr. Townsley was sentenced to 151 months imprisonment on April 16, 2015 after pleading guilty to two counts of bank robbery (18 U.S.C. §2113(a)) and seven counts of interference with commerce by threats for violence (18 U.S.C. §1951(a)). Mr. Townsley's sentence was pursuant to the United Stated Sentencing Guidelines and based on the Court's acceptance of the Probation Office's Guideline calculations that placed Mr. Townsley in Criminal History Category VI and set his Final Offense Level at Level 29. Mr. Townsley's sentence was at the absolute bottom of the aforementioned Guideline range, 151-188 months imprisonment. The Court's selection of Mr. Townsley's sentencing range was partially dependent upon its conclusion that he was appropriately characterized as a "career offender" pursuant to U.S.S.G. §4B1.1. Had the Court not assessed Mr. Townsley to be a career offender, his appropriate Guideline range would have been 120-150 months imprisonment based upon a Final Offense Level of Level 27 and a Criminal History Category V profile. Thus, the sentencing range in which Mr. Townsley was sentenced abuts, but does not overlap, the sentencing range he claims to be the correct one. If Mr. Townsley's position is correct, the only way this Court could have properly imposed the sentence Townsley received would be via a departure or variance from the Guidelines. Mr. Townsley's motion alleges that he was inappropriately characterized as a career offender and must be re-sentenced pursuant to United States v. Johnson, 135 S.Ct. 2551 (2015).
II. Discussion.
The Johnson case invalidated the "residual clause" of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(hereinafter "ACCA"). The ACCA provides for a statutory mandatory minimum sentence of 15 years imprisonment for recidivists convicted of unlawful possession of a firearm under 18 U.S.C. § 922(g) who have three prior state or federal convictions of either violent felonies or serious drug offenses. The now discredited residual clause of the ACCA included among violent felonies any crime that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). The Johnson decision describes the longstanding difficulty that Courts have experienced in deciding whether various felonies are "violent" and the sentencing imprecision that results from the inherent difficulty in deciding whether certain felonies are indeed violent. The Johnson court noted particularly cases involving attempted burglary, DUI, flight from law enforcement, carrying a concealed firearm, and failing to report for a prison sentence as examples of the difficulty of grappling with the definition of violent felony in the residual clause. The Supreme Court stated: "Nine years' experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but 'their sum makes a task for us which, at best, could only be guesswork.'...Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process." Johnson at 2560. (Citation omitted). Johnson's invalidation of the ACCA residual clause was made retroactive by a subsequent opinion of the Supreme Court, Welch v. United States, 136 S.Ct. 1257 (April 18, 2016).
The parties agree that the residual clause of U.S.S.G. § 4B1.2(a)(2), which defines "crime of violence" for purposes of the Guidelines' career offender enhancement, is textually identical to the ACCA residual clause invalidated by Johnson. The parties also agree that Johnson applies retroactively to all ACCA cases and to Guideline cases on direct appeal. The parties' sole disagreement is whether Mr. Townsley may receive the benefit of re-sentencing under Johnson because his case is before us on collateral review. (See Government's Brief, Doc. 55 at 3-5). This argument is quite technical and turns on whether the Supreme Court's invalidation of the residual clause discussed above should be viewed as "substantive" or "procedural" in the context of the United States Sentencing Guidelines.
The Government had previously conceded that the residual clause of the Guidelines career offender enhancement is unconstitutional in United States v. Townsend, 2015 WL 9311394 (3d. Cir., December 12, 2015).
The Government does not contest Mr. Townsley's assertion that his prior criminal conduct does not include the requisite two predicate acts that, after Johnson, may appropriately be characterized as serious drug offenses or crimes of violence. Our review of Mr. Townsley's criminal history persuades this Court that, in light of Johnson, he was inappropriately characterized as a "career offender". Accordingly, his contention that he should have been viewed as a Criminal History Category V offender with a Final Offense Level of 27 is unrefuted.
Procedural changes in the criminal law are generally inapplicable to cases which, like the instant case, are before the Court on collateral review. Teague v. Lane, 489 U.S. 288, 311 (1989). The Government reasons that, in the context of the Guidelines, Johnson announces a new rule that is merely procedural because it does not necessarily alter the permissible range of sentences. (Doc. 55 at 13). The Government alludes to the new advisory nature of the Guidelines after United States v. Booker, 543 U.S. 220 (2005), and to the fact that the establishment of the correct Guideline range is merely a step in the current sentencing process. (Doc. 55 at 16). Accordingly, the Government cites Gall v. United States, 552 U.S. 38, 51 (2007) for the proposition that a failure to select the correct Guideline range constitutes mere procedural error. The Government contends, that the Guideline calculation of Mr. Townsley's sentencing range, although admittedly inaccurate, "...is a procedural step in a multi-step process that results in a court's selection of a sentence, not a substantive rule that expands the statutory range of outcomes." (Doc. 55 at 18). Thus, the Government reasons, Johnson's effect on the Guidelines is merely procedural and therefore not subject to retroactive application under Teague, supra.
The Petitioner relies upon Welch v. United States, 136 S.Ct. 1257 (2016), a case holding that Johnson's invalidation of the residual clause of ACCA is to be applied retroactively in all cases involving convictions under ACCA. The Welch court stated: "...Johnson is not a procedural decision. Johnson had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the ACCA. ...Johnson affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied. Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review." (citations omitted) 136 S.Ct. At 1265. Welch, however, does not directly discuss whether the retroactivity to be accorded those convicted under the ACCA residual clause should be extended to those whose Guideline range was wrongly calculated under the residual clause in U.S.S.G § 4B1.2(a)(2). The Petitioner contends that Welch can only be read to pronounce that Johnson's rejection of the residual clause must be extended to the Guidelines as well.
In the case sub judice the ACCA definition of crime of violence invalidated in Johnson and made retroactive as "substantive" under Welch is just as vague and likely to produce unjustifiable sentencing results in the context of the Guidelines. We observe, too, that the Supreme Court has held that the Guidelines are subject to constitutional challenge "notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range." Peugh v. United States, 133 S.Ct 2072, 2082 (2013). Just as the Welch court found that Johnson "affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied", this Court finds that the fatal vagueness of the residual clause in U.S.S.G. § 4B1.2(a)(2) affects the reach of the Guidelines rather than the judicial procedures by which the Guidelines are implemented. The "reach" of the Guidelines is affected to the extent that Mr. Townsley was placed in an overly punitive presumptive sentencing range as a result of the application of a definition that everyone now agrees is constitutionally infirm.
One appellate court that has considered whether Johnson ought to be given retroactive affect in Guideline cases has concluded that Johnson announces a rule that is substantive and must be applied to Guideline cases retroactively. See in re Encinias, ___ F.3d ___, 2016 WL 1719323 (Tenth Cir., April 29, 2016). Encinias permitted collateral action based on the Guideline Section 4B1.2(a)(2) definition of "crime of violence" without extensive discussion of why the Guideline's residual clause should be viewed as substantive rather than procedural. Apparently the Tenth Circuit thought that the residual clause was so obviously "substantive" that it did not discuss the prospect that it might be more properly viewed as "procedural". Of course, the Government may not have made the substantive/procedural argument in Encinias. In any event, Encinias categorically finds that the residual clause of Section 4B1.2(a)(2) is constitutionally infirm and that defendants affected by that infirmity are entitled to have their sentences reviewed collaterally. We agree. We note also that the Eleventh Circuit has concluded that the residual clause in U.S.S.G. Section 4B1.2(a)(2) cannot be used by an offender to obtain collateral review of his sentence because the Supreme Court has never issued an opinion expressly pronouncing that the Guidelines are subject to "void for vagueness" challenges. Rivero v. United States, 797, F.3d 986 (11th Cir. 2015). We do not believe that the Third Circuit will follow the Eleventh Circuit view in light of U.S. v. Jones, 979 F.2d 317 (3d. Cir. 1992)(cited by the dissent in Rivero, supra), in which the Third Circuit held that the Guidelines are subject to "void for vagueness" challenges despite the fact that no Supreme Court decision expressly validates that conclusion. --------
The Government had cited Gall, supra, for the proposition that the Guidelines are merely an initial step in arriving at a criminal sentence post-Booker. This is true. However, it is also true that Gall requires that "district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process." (emphasis supplied). Peugh, supra, at 2083. The Peugh Court also stated that in the usual sentencing "'the judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range.' Even if the sentencing judge sees a reason to vary from the Guidelines, 'if the judge uses the sentencing range as the beginning point to explain the decision or to deviate from it, then the Guidelines are in a real sense the basis for the sentence.'" Peugh, supra at 1282 (citing Freeman v. United States, 131 S.Ct. 2685, 2692 (2011).
The presumptive Guideline range obviously continues to have a heavy influence on sentencing outcomes even eleven years after the Booker decision rendered the Guidelines advisory. The United States Sentencing Commission's statistics for fiscal year 2015 indicate that, when one adjusts for Government driven "substantial assistance" departures, fully 54% of all criminal sentences are pronounced within the presumptive Guideline range. See U.S. Sentencing Commission Source Book 2015 at page entitled "National Data". It is, thus, obvious that being placed in an incorrect sentencing range presents an unacceptable probability that an offender's ultimate sentence will be more punitive than what otherwise would have been the case. The fact that judges have discretion to sentence outside the Guideline range hardly cures the substantive effect of being placed in the wrong sentencing range. When that occurs there is a likelihood that the sentence imposed will be outside the correct Guideline range without any supporting rationale. This would produce the type of sentencing imprecision the Supreme Court decried in Johnson and the "unwarranted disparity" that the U.S. Sentencing Guidelines were designed to minimize in the first place.
Because the Guidelines are the mandatory starting point for every sentencing judge's ruminations about what is the appropriate sentence in a given case, because the sentencing judge must remain constantly mindful of them throughout the sentencing process (see Peugh, supra, at 2083), and because the statistics indicate that correct calculation of the Guidelines range is a crucially important part of the sentencing process, we conclude that all those who have been sentenced under the unconstitutionally vague residual clause of U.S.S.G. § 4B1.2(a)(2) are entitled to collateral review of their sentences. Accordingly, Petitioner's Motion to Correct Sentence will be granted. An Order consistent with this determination will be filed contemporaneously. BY THE COURT
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court Dated: June 22, 2016