Reply Brief — Paul Lewis, Petitioner v. United States

No. 17-9490

IN THE

Supreme Court of the United States

______________

PAUL LEWIS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

______________

REPLY BRIEF FOR PETITIONER

______________

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

ANDREW L. ADLER

Counsel of Record

ASS’T FED. PUBLIC DEFENDERS

150 W. Flagler St., Suite 1500

Miami, FL 33130-1555

(305) 536-5900

Andrew_Adler@fd.org

Counsel for Petitioner

SEPTEMBER 6TH, 2018

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................... ii

REPLY BRIEF FOR PETITIONER .............................................................................. 1

CONCLUSION............................................................................................................... 6

i

TABLE OF AUTHORITIES

CASES

Beckles v. United States,

580 U.S. __, 137 S. Ct. 886 (2017) .......................................................................... 2, 3

Cross v. United States,

892 F.3d 288 (7th Cir. 2018) .................................................................................. 1, 2

Cutter v. Wilkinson,

544 U.S. 709 (2005) ................................................................................................... 6

Hawkins v. United States,

706 F.3d 820 (7th Cir. 2013) ...................................................................................... 3

In re Griffin,

823 F.3d 1350 (11th Cir. 2016) .......................................................................... 2, 5, 6

Johnson v. United States,

576 U.S. __, 135 S. Ct. 2551 (2015) .................................................................. passim

Miller v. Florida,

482 U.S. 423 (1987) .................................................................................................... 3

Stinson v. United States,

508 U.S. 36 (1993) ...................................................................................................... 5

Stokeling v. United States

(U.S. No. 17-554) (argument set for Oct. 9, 2018) ..................................................... 5

United States v. Bell,

840 F.3d 963 (8th Cir. 2016) ...................................................................................... 6

United States v. Booker,

543 U.S. 220 (2005) .......................................................................................... passim

United States v. Rollins,

846 F.3d 737 (7th Cir. 2016) (en banc) ...................................................................... 6

ii

United States v. Soto-Rivera,

811 F.3d 53 (1st Cir. 2016) ......................................................................................... 6

Welch v. United States,

578 U.S. __, 136 S. Ct. 1257 (2016) ........................................................................ 2, 3

STATUTES

28 U.S.C. § 2255 ................................................................................................... passim

28 U.S.C. § 2255(f)(3) ..................................................................................................... 3

SENTENCING GUIDELINE

U.S.S.G. § 4B1.2(a)(2) ......................................................................................... passim

RULE

Sup. Ct. R. 10 ................................................................................................................. 2

OTHER AUTHORITY

Cross v. United States, Order Denying Gov't Petitoin for Rehearing En Banc,

Case No. 17-2282 (7th Cir. Aug. 31, 2018) ................................................................ 1

iii

REPLY BRIEF FOR PETITIONER

_________________________________________

1.

In its brief in opposition, the government acknowledges that “a circuit

disagreement exists on the viability of a claim like petitioner’s.”

BIO 3.

The

government nonetheless argues that this admitted circuit conflict “may soon resolve

itself without the need for this Court’s intervention,” because the government filed a

petition for rehearing en banc in Cross v. United States, 892 F.3d 288 (7th Cir.

2018). BIO 3. But that argument has been proven wrong: the Seventh Circuit has

since denied the government’s petition (without noted dissent or even a poll). Case

No. 17-2282, DE 44 (7th Cir. Aug. 31, 2018). Accordingly, the circuit conflict is now

intractable. Geography alone will determine whether federal prisoners may obtain

relief from their career-offender sentences imposed before United States v. Booker,

543 U.S. 220 (2005). Only this Court can resolve that untenable disparity.

2.

Seeking to shield that conflict from review, the government argues

that the questions presented are of “limited importance” because they affect only a

“closed-set of cases.”

Gipson BIO 16.

But, as Petitioner explained, there are

literally thousands of pre-Booker career offenders who remain incarcerated, many of

whom are in the Eleventh Circuit. Pet. 25–27. The government does not dispute

the numerical estimates supplied in petition. And the multiple pending petitions

presenting related questions confirm that those questions do indeed affect

numerous federal prisoners.

The government fails to explain why this Court’s

review is not warranted to resolve a circuit conflict that will determine whether

numerous federal prisoners are serving illegal sentences.

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3.

While an immutable circuit conflict on an important federal question

alone compels reviews, see Sup. Ct. R. 10(a), (c), the government’s argument on the

merits is particularly weak. Indeed, it wholly fails to dispute Petitioner’s main

assertion: that the then-mandatory residual clause in U.S.S.G. § 4B1.2(a)(2) is void

for vagueness in light of Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551

(2015) and Beckles v. United States, 580 U.S. __, 137 S. Ct. 886 (2017). See Pet. 14–

21.

Thus, the government has no answer for the Seventh Circuit’s thorough

decision in Cross, confirming Petitioner’s argument on that point. 892 F.3d at 299–

306. And the government does not defend the Eleventh Circuit’s contrary decision

in In re Griffin, 823 F.3d 1350, 1354–55 (11th Cir. 2016), upon which the decision

below exclusively relied, Pet. App. 2a–4a. That silence is deafening.

Resorting instead to procedure, the government argues that the invalidation

of the mandatory Guidelines’ residual clause would not have retroactive effect in

collateral cases. Gipson BIO 12–14. But, as the petition explained, this Court’s

decision in Welch v. United States, 578 U.S. __, 136 S. Ct. 1257 (2016) refutes that

argument. See Pet. 22–24. Welch held that Johnson’s invalidation of the ACCA’s

residual clause was a “substantive rule” with retroactive effect because it narrowed

the class of persons subject to the enhancement.

The same logic applies here.

Devoting only a sentence to Welch, the government suggests that it is

distinguishable because, unlike those who are erroneously subject to the ACCA

enhancement, those who were erroneously subject to a mandatory career-offender

enhancement are still sentenced within the statutory range. That is unpersuasive.

2

The government’s argument fails to recognize that, before Booker, the

guideline range was the functional equivalent of what the statutory range is today:

sentencing judges were bound by it. Booker, 543 U.S. at 233–35. The government

emphasizes that departures were permitted in appropriate circumstances.

But

statutory ranges have exceptions too. See Hawkins v. United States, 706 F.3d 820,

822 (7th Cir. 2013). The government does not argue that an upward departure

would have been available here. And, most importantly, Booker already explained

that the limited availability of departures did not render the Guidelines any less

mandatory. 543 U.S. at 233–34. Thus, the government is wrong to suggest that a

sentence exceeding the mandatory guideline range was something judges could

lawfully impose; rather, doing so would have guaranteed reversal. Id. at 234–35.

Lastly, the government makes no mention of this Court’s precedent in Miller v.

Florida, 482 U.S. 423 (1987), characterizing as “substantive” a change to a guideline

range that was merely presumptive rather than mandatory. Pet. 24.

4.

Because the government cannot get around this Court’s precedents in

Beckles and Welch, it argues that Petitioner’s 28 U.S.C. § 2255 motion was not

timely under § 2255(f)(3), reasoning that Johnson did not recognize the “new right”

that Petitioner now seeks.

BIO 2–3; Gipson BIO 9–12.

In other words, the

government asserts that, until this Court applies Johnson to the Guidelines, any

§ 2255 motion challenging a pre-Booker career-offender enhancement would be

premature and thus untimely. But that begs the question: how could this Court

ever decide whether to apply Johnson to that context unless career offenders are

3

permitted to challenge their sentences in court? The government’s position would

essentially require career offenders to file untimely § 2255 motions just to get the

issue before this Court.

And now that issue has arrived at the Court, the

government opposes review by arguing that the motion is untimely.

The

government’s Kafkaesque position would prevent this class of prisoners from ever

challenging their illegal sentences in court.

Although the government’s position cannot possibly be correct, this Court

need not decide that issue at all. Determining whether the mandatory residual

clause is retroactively void for vagueness would obviate any issue about timeliness.

If the Court ultimately concludes either that § 4B1.2(a)(2)’s mandatory residual

clause is not void for vagueness, or that its invalidation would not have retroactive

effect, then § 2255 motions would fail for those reasons, regardless of timeliness. By

contrast, if the Court concludes that § 4B1.2(a)(2)’s mandatory residual clause is

retroactively void for vagueness, then the Court’s retroactivity holding will require

it to identify the “rule” underlying its decision. If the rule is the same substantive

rule recognized in Johnson, then § 2255 motions filed within one year of Johnson

will be timely. Or, if applying the rule in Johnson to the Guidelines creates a “new”

substantive rule, then all previously-filed § 2255 motions will become timely once

this Court recognizes that new rule.

Either way, resolving the two questions

presented here would effectively obviate any issue about timeliness.

5.

That dynamic reinforces why this case is an ideal vehicle.

The

Eleventh Circuit’s decision below rested exclusively on its circuit precedent in In re

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Griffin, which held that: 1) the mandatory residual clause is not void for vagueness;

and 2) its invalidation would not have retroactive effect. As a result, the petition

here presented only those two questions for review, and the government does not

dispute that they are squarely presented.

See Pet. 27–28.

And because the

Eleventh Circuit did not make—and has not since made—any ruling about the

timeliness of § 2255 motions challenging pre-Booker career offender sentences,

Petitioner has not raised that question in his petition and would not need to brief it

on the merits. Thus, this case neatly presents only two questions—not three—and

their resolution would resolve the viability of all mandatory Guidelines cases.

The government nonetheless argues that this case is an unsuitable vehicle

because, under current circuit precedent, Petitioner’s predicate convictions satisfy

the elements clause in § 4B1.2(a). BIO 4–5. But the government acknowledges

that, whether his Florida robbery conviction satisfies the elements clause is now

directly before this Court in Stokeling v. United States, No. 17-554 (argument set for

Oct. 9, 2018), which could abrogate current Eleventh Circuit precedent. BIO 5 n.3.

The government also argues that the residual clause was not vague “as applied” to

Petitioner because two of his predicate convictions were listed in the commentary.

BIO 3–4. But Johnson itself foreclosed such as-applied vagueness challenges. See

135 S. Ct. at 2560–61; id. at 2580–82 (Alito, J., dissenting). And several circuits

have since held that, where an offense listed in the commentary does not satisfy a

definition in the text of the Guideline, then the commentary is invalid under

Stinson v. United States, 508 U.S. 36 (1993). See United States v. Soto-Rivera, 811

5

F.3d 53, 59–61 (1st Cir. 2016); United States v. Rollins, 846 F.3d 737, 742–43 (7th

Cir. 2016) (en banc); United States v. Bell, 840 F.3d 963, 967–69 (8th Cir. 2016).

In any event, none of those issues were decided below, and this Court is a

“court of review, not of first view.”

(2005).

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

Again, the Eleventh Circuit affirmed the denial of Petitioner’s § 2255

motion exclusively under its binding precedent in In re Griffin, which held that the

mandatory residual clause is not void for vagueness and that its invalidation would

not have retroactive effect.

Were Petitioner to prevail on those two questions

presented here, the Eleventh Circuit could address any remaining issues on

remand, per this Court’s customary procedure. So those issues pose no obstacle to

review here.

CONCLUSION

For the foregoing reasons, and those set forth in the petition, the Court

should grant the petition for a writ of certiorari.

Respectfully submitted,

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

/s/ Andrew L. Adler

ANDREW L. ADLER

Counsel of Record

ASS’T FED. PUBLIC DEFENDER

150 W. Flagler St., Suite 1500

Miami, FL 33130-1555

(305) 536-5900

Andrew_Adler@fd.org

Counsel for Petitioner

6