16‐1530 Blow v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________

August Term, 2015

(Submitted: July 11, 2016 Decided: July 14, 2016 Amended: July 29, 2016)

Docket No. 16‐1530 _________________________

MICHAEL A. BLOW,

Petitioner,

‐‐ v. ‐‐

UNITED STATES OF AMERICA,

Respondent. _________________________

Before:

KATZMANN, Chief Judge, WESLEY, and HALL, Circuit Judges.

_________________________

Michael Blow moves for leave to file a successive

motion

challenging his 2009 sentence for conspiracy to distribute cocaine base. Because

we find that he has made a prima facie showing that his claim warrants relief, we

GRANT his motion.

_________________________

Barclay T. Johnson, Research & Writing Attorney, Office of the Federal Public Defender, Burlington, Vermont, for Petitioner.

Gregory L. Waples, Assistant United States Attorney, for Eric S. Miller, United States Attorney for the District of Vermont, Burlington, Vermont, for Respondent. _________________________

PER CURIAM:

Michael Blow pleaded guilty to one count of conspiring to distribute five

grams or more of cocaine base, in violation of

(b)(1)(B) and 846.

The district court sentenced him to 130 months in prison due, in part, to the

court’s finding that Blow qualified as a career offender under United States

Sentencing Guidelines Manual (“USSG”) § 4B1.1. Section 4B1.1 enhances a

defendant’s offense level under the Guidelines if the defendant, inter alia, has at

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least two previous convictions for a “crime of violence” or a “controlled

substance offense.” USSG § 4B1.1(a)(3). “Crime of violence” is defined as:

[A]ny offense under federal or state law, 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, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a) (emphasis added). The italicized portion of § 4B1.2(a)(2) is known

as the “residual clause.”

Blow, having previously challenged his conviction under

,

now moves for leave to file a successive § 2255 motion. He argues that his

§ 4B1.1 sentence enhancement was rendered unconstitutional by Johnson v.

United States,

(2015). In that case, the Supreme Court declared that

the residual clause of the Armed Career Criminal Act (“ACCA”), found in

(e)(2)(B)(ii), was unconstitutionally vague. The ACCA provides for a

15‐year mandatory minimum sentence for defendants convicted under

(g) if they have three prior “violent felon[ies]” or “serious drug offense[s].”

(e)(1). The ACCA’s definition of “violent felony” contains a

residual clause that is identical to the residual clause of § 4B1.2(a)(2). See id.

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§ 924(e)(2)(B)(ii). Blow claims that one of his two prior convictions that the

district court found to be crimes of violence under USSG § 4B1.2(a)(2) was a

Vermont conviction for aggravated domestic assault under 13 V.S.A. § 1043(a)(3).

This conviction, he asserts, could only have qualified as a crime of violence

under § 4B1.2(a)(2)’s residual clause, and is therefore no longer a valid basis for

enhancement under § 4B1.1 after Johnson. The Government opposes the motion

on the grounds that Johnson is not retroactive to cases on collateral review

challenging Guidelines sentencing range calculations.

This Court must deny leave to file a successive § 2255 claim unless, in

relevant part, it “contain[s]” “a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was previously

unavailable.”

(h)(2). This Court may authorize the filing of a

successive § 2255 motion only if the movant has made a prima facie showing that

the proposed motion satisfies the successive criteria.

(b)(3)(C);

see Bell v. United States,

(2d Cir. 2002) (per curiam) (stating that

the prima facie standard applies to § 2255(h) motions). “A prima facie showing

is not a particularly high standard. An application need only show sufficient

likelihood of satisfying the strict standards of § 2255 to ‘warrant a fuller

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exploration by the district court.’” Bell,

(quoting Bennett v. United

States,

(7th Cir. 1997)).

The Supreme Court has held that Johnson announced a new rule of

constitutional law that is retroactive on collateral review. Welch v. United States,

(2016). Furthermore, the statutory language that was found

unconstitutionally vague in Johnson is identical to the language in § 4B1.2(a)(2)

now challenged by Blow. However, there are conflicting decisions in other

circuits as to the question of whether Johnson and Welch apply to Guidelines

provisions. The Eleventh Circuit held, in a direct appeal involving a Johnson‐

based challenge to the § 4B1.2(a)(2) residual clause, that Guidelines provisions

cannot be attacked as unconstitutionally vague. United States v. Matchett,

(11th Cir. 2015). But other circuits have rejected that conclusion.

See United States v. Madrid,

, 1212 n.10 (6th Cir. 2015); United States v.

Taylor,

(8th Cir. 2015); United States v. Townsend, 638 Fed. App’x

172, 178 n.14 (3d Cir. 2015) (unpublished).

The Supreme Court recently granted certiorari in another Eleventh Circuit

case to determine, inter alia, the precise question at issue here—whether Johnson

applies retroactively to § 4B1.2(a)(2)’s residual clause. See Beckles v. United States,

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No. 15‐8544,

(U.S. Jun. 27, 2016). The Eleventh Circuit in Beckles

affirmed the denial of a § 2255 motion challenging the § 4B1.2(a)(2) residual

clause based on Johnson partially on the grounds that the opinion in Johnson does

not purport to affect anything other than the ACCA’s residual clause. Beckles v.

United States,

(11th Cir. 2015) (per curiam) (unpublished).

But the Fourth Circuit recently decided, contrary to the Eleventh Circuit, to grant

a motion to file a successive § 2255 motion raising the same issue, concluding, in

part, that Johnson announced a substantive rule that shortened the reach of USSG

§ 4B1.2(a)(2), and the decision’s effect was thus retroactive under Welch. In re

Hubbard, No. 15‐276,

, at *3–6 (4th Cir. Jun. 8, 2016).

In sum, there is substantial disagreement among other circuits on the

question on which the Supreme Court has granted certiorari in Beckles. On

consideration, we conclude that Blow has made a prima facie showing that his

claim satisfies § 2255(h) and warrants fuller exploration by the district court.

Accordingly, IT IS ORDERED that the motion is GRANTED, and the case is

transferred to the district court pursuant to

. However, because

the Supreme Court will likely decide in Beckles whether Johnson applies

retroactively to the Guidelines, the district court is instructed to hold Blow’s

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§ 2255 motion in abeyance pending the outcome of Beckles. The district court is

free to consider termination of the stay, on motion or sua sponte.

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