United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION DENYING
PETITIONER'S MOTION FOR RELIEF UNDER 28 U.S.C. §
CAMPBELL U.S. District Court Judge.
Yellowbear pled guilty to being a felon in possession of a
firearm. Because he had previously committed at least two
“crimes of violence” as defined by the
then-current version of the United States Sentencing
Guidelines (Guidelines), Mr. Yellowbear's recommended
sentence was enhanced. Mr. Yellowbear petitioned the court to
vacate his sentence, arguing that the Guidelines enhancement
was unconstitutional under the Supreme Court's ruling in
Johnson v. United States, 135 S.Ct. 2551 (2015).
However, not long after Mr. Yellowbear filed his petition,
the Supreme Court held in Beckles v. United States
that the ruling in Johnson does not apply to the
Guidelines. 137 S.Ct. 886, 897 (2017). Because
Johnson does not apply to the Guidelines, the court
dismisses Mr. Yellowbear's petition.
Yellowbear pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). His presentence report considered two of his prior
convictions as “crimes of violence” under the
Guidelines. These prior convictions increased the recommended
sentencing range under the Guidelines. However, the court
sentenced Mr. Yellowbear below the range suggested by the
2015, the Supreme Court ruled in Johnson v. United
States that the residual clause of the Armed Career
Criminal Act (ACCA) was unconstitutionally vague. 135 S.Ct.
2551 (2015). Under the ACCA, a felon convicted of possessing
a firearm is subject to a fifteen-year mandatory minimum
sentence when he has three prior convictions for either a
“violent felony” or a “serious drug
offense.” 18 U.S.C. § 924(e). Before the
Court's decision in Johnson, the ACCA contained
a “residual clause” which defined violent
felonies to include crimes that “involve conduct that
presents a serious potential risk of physical injury to
another.” Id. § 924(e)(2)(B)(ii).
the ACCA, the Guidelines provide enhancements for crimes
constituting a “crime of violence.” Mirroring the
residual clause's definition provided under the ACCA,
section 4B1.2(a)(2) of the Guidelines defines a “crime
of violence” to include a crime that “involves
conduct that presents a serious potential risk of physical
injury to another.” After Johnson, the Tenth
Circuit held in United States v. Madrid that the
Guidelines' residual clause is also unconstitutionally
vague. 805 F.3d 1204, 1210 (10th Cir. 2015).
to the Supreme Court's ruling in Johnson, and
the Tenth Circuit's ruling in Madrid, Mr.
Yellowbear filed a petition under 28 U.S.C. § 2255,
asking the court to vacate his sentence and resentence him
without the Guidelines' residual clause. Though Mr.
Yellowbear argued both that his attorney provided
constitutionally deficient counsel and that his sentence was
miscalculated, both arguments were based on
Johnson's retroactive application to the
after Mr. Yellowbear filed his petition, the Supreme Court
decided Beckles v. United States. 137 S.Ct. 886
(2017). There, the Court overturned Madrid and
unequivocally ruled that “the Guidelines are not
subject to a vagueness challenge under the Due Process
Clause” and “[t]he residual clause in §
4B1.2(a)(2) therefore is not void for vagueness.”
Id. at 892.
to Beckles, the Government filed a motion to dismiss
Mr. Yellowbear's petition.
Yellowbear's petition raises two arguments, both based
explicitly on Johnson's application to the
Guidelines. First, Mr. Yellowbear contends that his attorney
gave constitutionally ineffective assistance by failing to
argue that the Guidelines' residual clause is void for
vagueness. Second, Mr. Yellowbear asserts that
Johnson applies to the Guidelines and, consequently,
his range for sentencing was calculated incorrectly.
the Supreme Court's decision in Beckles
forecloses both of Mr. Yellowbear's arguments. First, Mr.
Yellowbear's counsel was not deficient: Beckles
rejects the very argument Mr. Yellowbear alleges his counsel
should have made. Id. An attorney does not provide
ineffective assistance by failing to bring a meritless
argument. See Strickland v. Washington, 466 U.S.
668, 687-88 (1984) (holding that
ineffective-assistance-of-counsel claims require a showing
that counsel's performance “fell below an objective
standard of reasonableness”).
Mr. Yellowbear's claim that his Guideline range was
calculated incorrectly explicitly fails under
Beckles. By holding that the Guidelines'
residual clause is not void for vagueness, the Supreme Court
upheld the basis for Mr. Yellowbear's Guidelines'