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United States v. Taylor

United States Court of Appeals, Tenth Circuit

February 21, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JOHN R. TAYLOR, Defendant-Appellant.

         D.C. Nos. 5:16-CV-00428-D and 5:95-CR-00158-D-1 (W.D. Okla.)

          Before LUCERO, O'BRIEN, and MORITZ, Circuit Judges.

          ORDER DENYING CERTIFICATE OF APPEALABILITY

          Terrence L. O'Brien United States Circuit Judge

         In September 1997, John R. Taylor was convicted by a jury of various drug offenses. His criminal history included California convictions for kidnapping and second-degree robbery. The district judge concluded these convictions constituted "crime[s] of violence" under the career-offender sentencing guideline. See USSG §§ 4B1.1, 4B1.2(1).[1] That guideline increases a sentence if, among other things, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense."[2] USSG § 4B1.1. A "crime of violence" is any federal or state offense "punishable by imprisonment for a term exceeding one year" that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the force or elements clause), (2) "is burglary of a dwelling, arson, or extortion, [or] involves use of explosives" (the enumerated-offense clause), or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). USSG § 4B1.2(1). The commentary to § 4B1.2 defines "crime of violence" to include "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." USSG § 4B1.2, comment. (n.2).

         The career-offender enhancement resulted in a guideline range of 360 months to life imprisonment; the judge sentenced Taylor to 360 months. Had the career-offender guideline not applied, the applicable guideline range would have been 262-327 months in prison. At the time of Taylor's sentencing, the guidelines were mandatory.[3]

         We affirmed on direct appeal. See United States v. Taylor, 183 F.3d 1199 (10th Cir.), cert. denied, 528 U.S. 904 (1999). Since then, Taylor has made various attempts, all unsuccessful, to overturn his conviction and sentence, including filing a first § 2255 motion and a motion for sentence reduction under 18 U.S.C. § 3582(c)(2). He also filed several second or successive § 2255 motions; in each case we denied authorization under 28 U.S.C. § 2255(h).

         On June 26, 2015, the United States Supreme Court decided Johnson v. United States, ___U.S.__, 135 S.Ct. 2551 (2015). It held the Armed Career Criminal Act's (ACCA) definition of "violent felony" to include any felony that "involves conduct that presents a serious potential risk of physical injury to another" (also known as the residual clause) is unconstitutionally vague. Id. at 2557, 2563. On April 18, 2016, it made Johnson's holding retroactive to cases on collateral review. Welch v. United States, ___U.S. ___, 136 S.Ct. 1257, 1265 (2016).

         Relying on Johnson, Taylor requested and obtained this Court's authorization to file a second or successive § 2255 motion. See 28 U.S.C. § 2255(h)(2). His second § 2255 motion contends the prior robbery conviction qualified as a "crime of violence" only under § 4B1.2(1)(ii)'s residual clause. Because that clause, like its identically worded ACCA counterpart, is unconstitutionally vague, he claims he was entitled to be resentenced without the career-offender guideline enhancement.[4]

         During the pendency of the § 2255 proceedings, the Supreme Court decided Beckles v. United States, ___U.S. ___, 137 S.Ct. 886 (2017). It held the advisory sentencing guidelines "are not subject to a vagueness challenge under the Due Process Clause" because they "merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Id. at 892. As a result, "[t]he residual clause in [the career-offender guideline] . . . is not void for vagueness." Id.

         Taylor argued Beckles did not foreclose relief because its holding was limited to the advisory guidelines and left open the question whether defendants, like himself, sentenced under the mandatory guidelines "may mount vagueness attacks on their sentences." Id. at 903 n.4 (Sotomayor, J., concurring in judgment). He claimed that because the mandatory guidelines fixed the permissible range of his sentence, they, like the ACCA, are subject to vagueness challenges.

         The district judge concluded he need not decide whether Johnson applied to the mandatory guidelines because Taylor's § 2255 motion did not "contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, " one of the requirements for filing a second or successive § 2255 motion. See 28 U.S.C. § 2255(h)(2) (emphasis added). He explained: The only Supreme Court case that might satisfy this requirement for a career-offender guideline claim based on Johnson would be Welch, but Welch only addressed the retroactivity of Johnson. The Supreme Court concluded Johnson was retroactive to cases on collateral review because it was a substantive decision-it affected the reach of the ACCA rather than the judicial procedures by which it is applied. The same reasoning, the judge said, would not apply to a Supreme Court decision invalidating the residual clause of the mandatory career-offender guideline. The mandatory guidelines, he said, are not the equivalent of a criminal statute and cannot require a particular punishment. Rather, they provide a punishment or range of punishments a sentencing court may impose, but only as one factor to be considered under 18 U.S.C. § 3553(a) in fashioning an appropriate sentence for a particular defendant. "Thus, Welch would not necessarily mandate that a Supreme Court decision invalidating the residual clause of the career offender guideline would be given retroactive effect to cases on collateral review." (R. at 202.)

         In so concluding, the judge acknowledged we had granted Taylor authorization to file a second or successive § 2255 motion. Nevertheless, he concluded we had made only a preliminary assessment of whether the motion met the gatekeeping requirements of § 2255(h)(2) and he must definitely decide the issue. Indeed, 28 U.S.C. § 2244(b)(4) requires dismissal of any claim presented in a second § 2255 motion that fails to meet the requirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4) ("A district court must dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.").

         The judge denied a certificate of appealability (COA); Taylor renews his request here. A COA is a jurisdictional prerequisite to our review of the denial of a § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He must show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted).

         We agree with the district judge; Taylor is not entitled to relief. But ...


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