Petition for Writ of Certiorari — Marcus T. Simmons, Petitioner v. United States

Supreme Court briefNov 4, 2019

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No. 19-_______

__________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________________

MARCUS T. SIMMONS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________________

ELIZABETH B. FORD

Federal Community Defender

JENNIFER NILES COFFIN

Assistant Federal Defender

Counsel of Record

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

QUESTIONS PRESENTED

In 2001, when the guidelines were mandatory, Marcus Simmons was

sentenced as a career offender under U.S.S.G. § 4B1.1 based on two prior Tennessee

convictions for aggravated assault. At the time, one of his aggravated assault

convictions qualified as a crime of violence only under the residual clause in

§ 4B1.2(a)(2). In 2015, this Court struck down as void for vagueness the identical

residual clause in the Armed Career Criminal Act’s definition of “violent felony” at

18 U.S.C. § 924(e)(2)(B)(ii). Johnson v. United States, 135 S. Ct. 2551 (2015). Within

a year, Mr. Simmons filed a § 2255 motion challenging his career offender

designation in light of the new rule announced in Johnson. But the district court

dismissed the motion as untimely under 28 U.S.C. § 2255(f)(3) as required by the

Sixth Circuit’s decision in Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), in

which it held that the new rule announced in Johnson does not apply to the

mandatory guidelines unless and until this Court says so.

The questions presented are:

Whether, for purposes of 28 U.S.C. § 2255(f)(3), the new rule announced

in Johnson applies to the identical residual clause in the mandatory

guidelines, U.S.S.G. § 4B1.2 (2000)?

II. Whether the residual clause

in the mandatory guidelines, U.S.S.G.

§ 4B1.2 (2000), is void for vagueness?

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

(1) United States v. Simmons, No. 1:01-cr-007, District Court for the Eastern

District of Tennessee. Judgment entered June 8, 2001, amended December 15,

2010.

(2) United States v. Simmons, No. 01-6315, U.S. Court of Appeals for the Sixth

Circuit. Order dismissing for lack of jurisdiction entered November 6, 2001.

(3) Simmons v. United States, No. 1:02-cv-151, District Court for the Eastern

District of Tennessee. Decision and order entered July 30, 2004.

(4) Simmons v. United States, No. 04-6080, U.S. Court of Appeals for the Sixth

Circuit. Judgment entered May 1, 2016.

(5) Simmons v. United States, No. 1:01-cr-007 (1:16-cv-241), District Court for the

Eastern District of Tennessee. Decision and order entered October 15, 2018.

(6) Simmons v. United States, No. 18-6336, U.S. Court of Appeals for the Sixth

Circuit. Order entered August 7, 2019.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

PARTIES TO THE PROCEEDINGS ........................................................................... iii

RELATED CASES ........................................................................................................ iii

TABLE OF AUTHORITIES .......................................................................................... v

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 2

STATEMENT OF THE CASE ....................................................................................... 3

A. Legal background ............................................................................................. 4

B. Proceedings below ............................................................................................ 8

REASONS FOR GRANTING THE PETITION .......................................................... 14

The circuits are split on the question whether, for puroses of 28 U.S.C.

§ 2255(f)(3), the new retroactive rule announced in Johnson applies to

the residual clause in the mandatory guidelines ............................................... 14

II.

The circuits holding that Johnson does not apply by its own force to

the mandatory guidelines’ residual clause are wrong. ....................................... 17

III. This Court should resolve this extremely important question .......................... 26

IV. This Court should also resolve whether the mandatory guidelines’

residual clause is void for vagueness. ................................................................. 28

CONCLUSION............................................................................................................. 28

APPENDIX

Order Denying Application for a Certificate of Appealability,

No. 18-6336 (6th Cir. August 7, 2019) ........................................................... 1a-4a

Memorandum and Order Dismissing § 2255,

No. 1:01-cr-007 (E.D. Tenn. October 15, 2018) ............................................ 5a-12a

TABLE OF AUTHORITIES

CASES

Beckles v. United States,

137 S. Ct. 886 (2017) .........................................................................................passim

Begay v. United States,

553 U.S. 137 (2008) ................................................................................................... 8

Blackmon v. United States,

2019 WL 3767511 (D. Conn. Aug. 9, 2019) ....................................................... 15-16

Brown v. United States,

139 S. Ct. 14 (2018) ....................................................................................... 4, 19, 26

Buford v. United States,

532 U.S. 59 (2001) ..................................................................................................... 6

Butler v. McKellar,

494 U.S. 407 (1990) ............................................................................................. 21-22

Chaidez v. United States,

568 U.S. 342 (2013) ............................................................................................ 21-22

Chambers v. United States,

763 F. App’x 514 (6th Cir. 2019) ................................................................ 13, 14, 16

Daniels v. United States,

__ F.3d __, 2019 WL 4891991 (7th Cir. Oct. 4, 2019) ............................................ 16

Godfrey v. Georgia,

446 U.S. 420 (1980) ........................................................................................... 18, 20

Hodges v. United States,

778 F. App’x 413 (9th Cir. 2019) ...................................................................... 15, 16

In re Griffin,

823 F.3d 1350 (11th Cir. 2016) ................................................................... 14, 15, 20

In re Sapp,

827 F.3d 1334 (11th Cir. 2016) ............................................................................... 15

In re Waters,

2018 U.S. App. LEXIS 30510 (6th Cir. Oct. 26, 2018) .......................................... 18

Johnson v. United States,

135 S.Ct. 2551 (2015) .......................................................................................passim

Lester v. United States,

921 F.3d 1306 (11th Cir. 2019) ................................................................... 15, 16, 20

Mapp v. United States,

2018 WL 3716887 (E.D.N.Y. Aug. 3, 2018) ............................................................ 16

Maynard v. Cartwright,

486 U.S. 356 (1988) ........................................................................................... 18, 20

Mistretta v. United States,

488 U.S. 361 (1989) ............................................................................................. 6, 24

Moore v. United States,

871 F.3d 72 (1st Cir. 2018) ......................................................................... 15, 17, 25

Mora-Higuera v. United States,

914 F.3d 1152 (8th Cir. 2019) ................................................................................. 16

Raybon v. United States,

867 F.3d 625 (6th Cir. 2017) ...........................................................................passim

Russo v. United States,

902 F.3d 880 (8th Cir. 2018) ....................................................................... 14, 20, 21

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) .....................................................................................passim

Slack v. McDaniel,

529 U.S. 473 (2000) ................................................................................................. 12

Stinson v. United States,

508 U.S. 36 (1993) ............................................................................................... 6, 24

Stringer v. Black,

503 U.S. 222 (1992) ........................................................................................... 18, 20

Teague v. Lane,

489 U.S. 288 (1989) ..................................................................................... 20, 21, 22

United States v. Blackstone,

903 F.3d 1020 (9th Cir. 2018) ..................................................................... 14, 15, 19

United States v. Booker,

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

United States v. Brown,

868 F.3d 297 (4th Cir. 2017) ............................................................................. 14, 17

United States v. Cooper,

739 F.3d 873 (6th Cir. 2014) ..................................................................................... 8

United States v. Cross,

892 F.3d 288 (7th Cir. 2018) ................................................................. 14, 16, 25, 28

United States v. Davis,

139 S. Ct. 2319 (2019) ......................................................................................passim

United States v. Green,

898 F.3d 315 (3d Cir. 2018) .............................................................................. 14, 18

United States v. Greer,

881 F.3d 1241 (10th Cir. 2018) ......................................................................... 17, 18

United States v. Hammond,

351 F.3d 106 (D.D.C. 2018) .................................................................................... 15

United States v. LaBonte,

520 U.S. 751 (1997) ................................................................................................... 7

United States v. London,

937 F.3d 502 (5th Cir. 2019) ................................................................. 14, 15, 20, 22

United States v. McMurray,

653 F.3d 367 (6th Cir. 2011) ..................................................................................... 8

United States v. Moore,

2018 WL 5982017 (D. Mass. Nov. 14, 2018) .......................................................... 16

United States v. Portela,

469 F.3d 496 (6th Cir. 2006) ..................................................................................... 8

United States v. Pullen,

913 F.3d 1270 (10th Cir. 2019) ............................................................. 14, 15, 20, 21

United States v. R.L.C.,

503 U.S. 291 (1992) ............................................................................................. 6, 24

United States v. Wolfe,

767 F. App’x 390 (3d Cir. 2019) .............................................................................. 13

Walker v. United States,

769 F. App’x 195 (6th Cir. 2019) ............................................................................ 12

Walker v. United States,

931 F.3d 467 (6th Cir. 2019) ................................................................................... 13

Welch v. United States,

136 S. Ct. 1257 (2016) ................................................................. 5, 10, 12, 13, 20, 27

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. V ..................................................................................................... 3

U.S. Const. amend. VI ...................................................................................... 5, 22, 23

18 U.S.C. § 16(b) ............................................................................................... 5, 16, 17

18 U.S.C. § 2113(d) ........................................................................................................ 8

18 U.S.C. § 3553(b) .................................................................................................. 6, 23

18 U.S.C. § 924(c) ....................................................................................................... 8, 9

18 U.S.C. § 924(c)(3)(B) ..................................................................................... 5, 17, 18

18 U.S.C. § 924(e)................................................................................................... 3, 4, 7

18 U.S.C. § 924(e)(2)(B)(ii)....................................................................................... 5, 28

28 U.S.C. § 994(h) .......................................................................................................... 7

28 U.S.C. § 1254(1) ........................................................................................................ 2

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

28 U.S.C. § 2255(a) ........................................................................................................ 4

28 U.S.C. § 2255(f)(1) ..................................................................................................... 4

28 U.S.C. § 2255(f)(3) ................................................................................... 5, 11, 14, 25

28 U.S.C. § 2255(h)(2) .................................................................................................. 18

Tenn. Code Ann. § 39-13-101 (1990) ......................................................................... 3, 8

Tenn. Code Ann. § 39-13-102 (1990) ......................................................................... 3, 8

OTHER AUTHORITIES

U.S.S.G. § 4B1.1 ......................................................................................................... 7, 8

U.S.S.G. § 4B1.2 (1989) ................................................................................................. 7

U.S.S.G. § 4B1.2(a) (2001) ....................................................................................passim

U.S.S.G. ch. 5 (Sentencing Table) ................................................................................. 9

vii

No. 19-_______

__________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________________

MARCUS T. SIMMONS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________________

Petitioner Marcus T. Simmons respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Courts of Appeals for the

Sixth Circuit.

OPINIONS BELOW

The unpublished order of the United States Court of Appeals for the Sixth

Circuit appears at pages 1a to 4a of the appendix to this petition. The district

court’s unpublished decision denying and dismissing Mr. Simmons’ motion under

28 U.S.C. § 2255 appears along with the order at pages 5a to 12a of the appendix to

this petition.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). The court of appeals’

denial of Mr. Simmons’ certificate of appealability was entered on August 7, 2019.

Pet. App. 1a. This petition is timely filed pursuant to Supreme Court Rule 13.1.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment’s Due Process Clause provides:

No person shall . . . be deprived of life, liberty, or property, without due process

of law.

28 U.S.C. § 2255(f) provides:

A 1-year period of limitation shall apply to a motion under this section. The

limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United

States is removed, if the movant was prevented from making a motion by

such governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented

could have been discovered through the exercise of due diligence.

U.S.S.G. § 4B1.2(a) (2001) provides:

(a)

The term “crime of violence” means any 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.

Tenn. Code Ann. § 39-13-101 (1990) provided:

(a) A person commits assault who:

(1)

Intentionally, knowingly or recklessly causes bodily injury

to another;

(2)

Intentionally or knowingly causes another to reasonably

fear imminent bodily injury; or

(3)

Intentionally or knowingly causes physical contact with

another and a reasonable person would regard the contact

as extremely offensive or provocative.

Tenn. Code Ann. § 39-13-102 (1990) provided in relevant part:

(a) A person commits aggravated assault who:

(1) Commits an assault as defined in § 39-13-101, and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon[.]

...

(b) Aggravated assault is a Class C felony.

STATEMENT OF THE CASE

Marcus Simmons is serving a career offender sentence based on a prior

conviction that qualified as a crime of violence only under § 4B1.2(a)’s hopelessly

vague residual clause, which because the guidelines were mandatory fixed his

permissible sentencing range. This Court in Johnson v. United States, 135 S. Ct.

2551 (2015), struck down as void for vagueness the identical residual clause in 18

U.S.C. § 924(e), then applied the rule in Johnson to strike down as void for

vagueness two similar residual clauses in two different statutes. Each was applied

in the same categorical way. Yet, the courts of appeals cannot agree on whether

Johnson likewise invalidates the mandatory guidelines’ residual clause, though it

was identical to the one struck down in Johnson and was applied in the same

categorical way to fix sentencing ranges. Because the lower courts have reached a

deep and intractable impasse, only this Court can resolve the matter.

This question is extremely important. Its resolution “could determine the

liberty of over 1,000 people.” Brown v. United States, 139 S. Ct. 14, 16 (2018)

(Sotomayor, J., dissenting from the denial of certiorari). With the residual clause

excised as unconstitutional, Mr. Simmons’ § 2255 motion should be considered on

the merits, and he may be entitled to § 2255 relief depending on the resolution of an

underlying substantive question this Court may also decide this Term. If

resentenced today, he would be released from prison immediately.

Legal background

A federal prisoner may move to vacate his sentence under § 2255 if the

sentence violates the Constitution. See 28 U.S.C. § 2255(a). Any such motion

generally must be filed within one year of the date on which the judgment of

conviction becomes final. 28 U.S.C. § 2255(f)(1). However, a federal prisoner may

later file a § 2255 motion within one year from “the date on which the right asserted

was initially recognized by the Supreme Court, if that right has been newly

recognized by the Supreme Court and made retroactively applicable to cases on

collateral review.” 28 U.S.C. § 2255(f)(3).

In 2015, this Court in Johnson struck down as void for vagueness the

residual clause in the Armed Career Criminal Act at 18 U.S.C. § 924(e)(2)(B)(ii),

thereby announcing a new, substantive rule retroactively applicable to cases on

collateral review. 135 S. Ct. at 2557, 2563; Welch v. United States, 136 S. Ct. 1257,

1265 (2016). Then in Dimaya, this Court applied Johnson to strike down § 16(b)’s

residual clause as void for vagueness. 138 S. Ct. at 1214-15. And in Davis, the Court

applied Johnson to strike down the residual clause at § 924(c)(3)(B) as void for

vagueness, once it confirmed that the same categorical approach applied to it as to

the others. United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (“We agree with the

court of appeals’ conclusion that § 924(c)(3)(B) is unconstitutionally vague.”). By

that time, even the government “acknowledge[d] that, if [the categorical approach

applies to § 924(c)(3)(B)], then § 924(c)(3)(B) must be held unconstitutional too.” Id.

at 2326-27.

When Mr. Simmons was sentenced in 2001, the guidelines were mandatory.

When the guidelines were mandatory, they “impose[d] binding requirements on all

sentencing judges.” United States v. Booker, 543 U.S. 220, 233 (2005). It was the

“binding” nature of the guidelines that created the constitutional problem in Booker:

“[i]f the Guidelines as currently written could be read as merely advisory

provisions,” “their use would not implicate the Sixth Amendment.” Id. And this

“mandatory and binding” nature of the guidelines came directly from Congress. Id.

at 233-34; see 18 U.S.C. § 3553(b) (directing that courts “shall impose a sentence of

the kind, and within the range” established by the Guidelines). “Because they are

binding on judges, we have consistently held that the Guidelines have the force and

effect of laws.” 543 U.S. at 234.

Booker made clear that the availability of departures in no way rendered the

guidelines less than mandatory and binding laws. “In most cases, as a matter of

law, the Commission will have adequately taken all relevant factors into account,

and no departure will be legally permissible. In those instances, the judge is bound

to impose a sentence within the Guidelines range.” Id. (emphasis added). Indeed,

Booker acknowledged that had the district court departed from the mandatory

guidelines range in Booker’s case, the judge “would have been reversed.” Id. at 23435. And Booker’s understanding that the mandatory guideline range fixed the

statutory penalty range was well-established. United States v. R.L.C., 503 U.S. 291,

297 (1992) (“The answer to any suggestion that the statutory character of a specific

penalty provision gives it primacy over administrative sentencing guidelines is that

the mandate to apply the Guidelines is itself statutory.”); Mistretta v. United States,

488 U.S. 361, 391 (1989) (“the Guidelines bind judges and courts in the exercise of

their uncontested responsibility to pass sentence in criminal cases”); Stinson v.

United States, 508 U.S. 36, 42 (1993) (noting “the principle that the Guidelines

Manual is binding on federal courts”).

The career offender guideline creates a “category of offender subject to

particularly severe punishment.” Buford v. United States, 532 U.S. 59, 60 (2001).

Congress mandated that the Sentencing Commission “specify a sentence to a term

of imprisonment at or near the maximum term authorized” for “categories of

defendants” convicted for at least the third time of a “felony that is” a “crime of

violence” or “an offense described in” particular federal statutes prohibiting drug

trafficking. See 28 U.S.C. § 994(h). The Commission implemented the directive by

tying the offense level to the statutory maximum for the instant offense of

conviction and automatically placing the defendant in Criminal History Category VI

if the defendant’s instant offense, and at least two prior convictions, constitute a

“crime of violence” or a “controlled substance offense.” U.S.S.G. § 4B1.1(a)-(b).

Beginning in 1989 and continuing through 2015, the Commission used the

definition of “violent felony” in § 924(e) to define “crime of violence” as an offense

punishable by a term of imprisonment 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.” U.S.S.G. § 4B1.2 (1989).

Because Congress mandated that the Commission specify a term of

imprisonment at or near the statutory maximum, the Commission’s one attempt to

ameliorate the severity of the guideline when it was mandatory was held invalid.

See United States v. LaBonte, 520 U.S. 751, 757 (1997). At the same time, courts

applied the guideline broadly under the vague language of the residual clause,

imagining all sorts of potential risk posed by the idealized “ordinary” case. See

Johnson, 135 S. Ct. at 2557-58, 2561. Many career offenders sentenced to harsh

prison terms based on minor offenses have been unable to get relief under guideline

amendments or changes in law.

Proceedings below

1. In 2001, Marcus Simmons pled guilty in the Eastern District of Tennessee

to bank robbery, in violation of 18 U.S.C. § 2113(d), and to using and carrying a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c). The Presentence Report determined that he qualified as a career

offender under U.S.S.G. § 4B1.1 based on a 1993 Tennessee conviction for

aggravated assault and a 1996 Tennessee conviction for aggravated assault. (PSR

¶¶ 27, 36, 37.) At the time, his 1993 aggravated assault conviction—because it

resulted from a guilty plea to a Class C felony—could have been for a reckless

offense so could have qualified as a “crime of violence” only under the residual

clause in § 4B1.2(a).1

2. The district court applied the career offender guideline. This determination

dictated an enhanced offense level of 34 and a mandatory guideline range of 272

to 319 months (which included a mandatory consecutive 84-month term for the

See Tenn. Code Ann. §§ 39-13-101, 39-13-102 (1990); United States v. Portela, 469

F.3d 496, 499 (6th Cir. 2006) (reckless offenses do not qualify under the guidelines’

identical force clause in former § 2L1.2).

After Begay v. United States, 553 U.S. 137 (2008), a reckless offense would not

have qualified under the residual clause, either. United States v. McMurray, 653

F.3d 367, 378 (6th Cir. 2011) (holding that a conviction for Class C aggravated

assault under the statute in effect in 1993, becaue it encompassed reckless offense,

did not qualify under the force clause or the residual clause); see United States v.

Cooper, 739 F.3d 873, 882 n.4 (6th Cir. 2014).

conviction under 18 U.S.C. § 924(c). (PSR ¶¶ 27, 78.) Mr. Simmons was sentenced

on June 8, 2001 to serve a term of 296 months in prison to be followed by 4 years’

supervised release. (Judgment, R. 29; Amended Judgment, R. 49.)

Without the career offender enhancement, his guideline range (after

including the mandatory 84-month consecutive term) would likely have been 147 to

162 months, based on a total offense level of 20 and a criminal history category of V.

(PSR ¶¶ 17, 26, 51.) U.S.S.G. ch. 5 (Sentencing Table). The career offender guideline

thus increased the bottom of his guideline range by 125 months—over ten years.

3. Mr. Simmons filed an untimely appeal, which the Sixth Circuit dismissed

for lack of jurisdiction. He then filed a timely motion under 28 U.S.C. § 2255 on the

ground that he received ineffective assistance of counsel because his attorney failed

to file a notice of appeal. The district court denied that motion, and the Sixth Circuit

affirmed.

4. On August 14, 2015, within one year of the Supreme Court’s decision in

Johnson v. United States, 135 S. Ct. 2251, 2563 (2015), he filed a pro se motion in

the district court seeking to raise a claim under Johnson, which was transferred to

the Sixth Circuit because it was his second § 2255 motion. (Motion to Vacate

Sentence Pursuant to 28 U.S.C. § 2255, R. 51; Order, R. 59.) In the motion, he

asserted that his sentence was imposed in violation of the Constitution because he

was classified as a career offender based solely on the residual clause in § 4B1.2.

The Sixth Circuit granted Mr. Simmons’ motion to file a second or successive § 2255

motion on June 20, 2016, Order, No. 16-5185 (6th Cir. June 20, 2016), and the

motion was docketed in the district court on June 22, 2016. (Motion to Vacate, R.

64.)

While his motion was pending, the Supreme Court decided Beckles v. United

States and held that Johnson does not invalidate the residual clause in the advisory

career offender guideline. 137 S. Ct. 886, 892 (2017). In later filings, Mr. Simmons

argued that Beckles does not foreclose his claim that the rule announced in Johnson

invalidates the residual clause under the mandatory career offender guideline at

§ 4B1.2(a), and that the rule he asks to be applied is the rule announced in Johnson,

without need for any “extension” by the Supreme Court or any court. (See

Supplement to 2255 Motion, R. 78; Reply to Gov’t Response, R. 85.) He further

maintained that the rule is substantive and applies retroactively to his case, as held

in Welch v. United States, 136 S. Ct. 1257 (2016), and that his claim is timely filed.

(Ibid.) In the absence of the residual clause, he argued, he is not subject to the

career offender guideline because his 1993 Tennessee conviction for aggravated

assault counted only under the residual clause. (Supplement, R. 78.) As a result, he

is entitled to be resentenced.

The government opposed the motion. (Gov’t Response in Opposition to

Supplement, R. 81.) Its position was that applying the rule in Johnson to the

mandatory guidelines would require an “extension” of that rule, and further that

the right Mr. Simmons asserts is a non-watershed procedural rule that the Supreme

Court has not made retroactively applicable on collateral review. (Id. (summarizing

and reiterating its responses).) The government otherwise argued that even if

Johnson applies retroactively to mandatory guidelines cases on collateral review,

Mr. Simmons is still a career offender because his 1993 aggravated assault

conviction still qualifies as a career offender predicate under the so-called “force

clause” in § 4B1.2(a)(1). (Response in Opposition, R. 70.)

Mr. Simmons disputed the government’s claim that he is still a career

offender in the absence of the residual clause, pointing to the record of his state

conviction and binding circuit precedent. Because the record of his conviction

necessarily established at most that his conviction was for reckless conduct, it did

not qualify under the force clause. (Supplement at 12, R. 78.)

5. Thereafter, in Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), the

Sixth Circuit concluded that the Supreme Court has not yet held that the rule in

Johnson applies to the mandatory guidelines’ residual clause, even though it is

identical to the ACCA’s residual clause and also requires a felony offense, and even

though both are applied categorically. As a result, it held, Raybon’s Johnson-based

§ 2255 motion was not timely filed under § 2255(f)(3) because it was filed more than

one year after the judgment became final.

Also after the parties’ briefing was complete, the Sixth Circuit changed the

law in the circuit regarding reckless offenses. In United States v. Verwiebe, 874 F.3d

258, 262 (6th Cir. 2017), it held offenses with a reckless mens rea do qualify as a

crime of violence under the force clause in U.S.S.G. § 4B1.2(a)(1). It did so in light of

this Court’s decision in Voisine v. United States, 136 S. Ct. 2272, 2278 (2016), which

interpreted a different force clause in a different statute that governs whether a

misdemeanor offense qualifies a crime of violence. See 18 U.S.C. § 921(a)(33)(A),

Relying on Raybon, the district court denied Mr. Simmons’ motion as

untimely, and dismissed the case with prejudice. Pet. App. 5a-9a. It noted that

“[t]he Supreme Court to date has not recognized that individuals have a

constitutional right not to be sentenced as career offenders under the residual

clause of the pre-Booker mandatory [Sentencing Guidelines].” Pet. App. 9a n.2.

Because the court denied Mr. Simmons’ claim as untimely, it did not reach

the merits. It denied him permission to proceed in forma pauperis on appeal, and

denied any future request for a certificate of appealability. Pet. App. 11a-12a.

7. Mr. Simmons filed a timely notice of appeal and asked the Sixth Circuit

for a certificate of appealability and to proceed in forma pauperis. Pointing to the

disagreement among the circuits and within circuits, he argued that reasonable

jurists can and do debate whether this Court recognized in Johnson that a person

has a constitutional right not to be sentenced as a career offender under the

residual clause of the mandatory guidelines. See Welch, 136 S. Ct. at 1263 (citing

Slack v. McDaniel, 529 U.S. 473, 484 (2000)). As for the merits, he contended that

reasonable jurists can and do debate whether an offense that can be committed

recklessly qualifies as a crime of violence under the force clause, when previously it

did not under binding circuit precedent. He pointed to the circuit split on the

question and the ongoing disagreement among the judges in the Sixth Circuit. See

Walker v. United States, 769 F. App’x 195, 200 (6th Cir. 2019) (Stranch, J.,

concurring).

While his request was pending, the Sixth Circuit denied en banc rehearing of

the timeliness issue in Chambers v. United States, 763 F. App’x 514 (6th Cir. 2019),

reh’g en banc denied, No. 18-3298 (6th Cir. June 26, 2019), and denied rehearing of

the reckless-offense issue in Walker v. United States, 931 F.3d 467 (6th Cir. 2019),

over the dissent of four judges, id. at 467-70 (Kethledge, J., joined by Moore,

Stranch, & White, JJ., dissenting) (noting that “the lower courts had uniformly

applied [the pre-Verwiebe rule] for more than a decade” and explaining why, in their

view, Verwiebe was wrongly decided).

8. Viewing itself bound by Raybon and Chambers, the Sixth Circuit deemed

Mr. Simmons’s § 2255 motion time-barred and denied his application for a

certificate of appealability. Pet. App. 1a-4a. The Sixth Circuit did not address the

reckless-offense issue.

Mr. Simmons now seeks review of the legal questions related to timeliness

directly implicated by the Sixth Circuit’s denial of his certificate of appealability.

Welch, 136 S. Ct. at 1264-65. Becaue his petition implicates these important

questions as well as the important question whether reckless offenses qualify under

§ 4B1.2’s force clause, he asks that his petition be granted and held until the Court

rules on similar cases presenting the issues raised here and considered at that

time.2

2 On the timeliness question, see, e.g., Pullen v. United States, No. 19-5219; Bronson

v. United States, No. 19-5316; Douglas v. United States, No. 19-___; Autrey v. United

States, No. 19-____.

On the reckless-offense question, see Borden v. United States, No. 19-5410;

Walker v. United States, No. 19-373; Bettcher v. United States, No. 19-5652. The

REASONS FOR GRANTING THE PETITION

The circuits are split on the question whether, for purposes of 28

U.S.C. § 2255(f)(3), the new retroactive rule announced in Johnson

applies to the residual clause in the mandatory guidelines.

The circuits are divided. The Seventh Circuit has held that, for purposes of

§ 2255(f)(3), the new retroactive rule announced in Johnson applies to the residual

clause in the mandatory guidelines. United States v. Cross, 892 F.3d 288, 299-306

(7th Cir. 2018). In direct conflict, eight circuits (including the Sixth Circuit) have

held that Johnson’s new retroactive right does not apply to the residual clause in

the mandatory guidelines. United States v. Green, 898 F.3d 315 (3d Cir. 2018);

United States v. Brown, 868 F.3d 297 (4th Cir. 2017), cert. denied, 139 S. Ct. 14

(2018); United States v. London, 937 F.3d 502 (5th Cir. 2019); Raybon v. United

States, 867 F.3d 625 (6th Cir. 2017); Russo v. United States, 902 F.3d 880 (8th Cir.

2018); United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018); United States v.

Pullen, 913 F.3d 1270, 1283-84 (10th Cir. 2019); In re Griffin, 823 F.3d 1350 (11th

Cir. 2016).

Even within these eight circuits, judges sharply disagree. See, e.g., Brown,

868 F.3d at 304-05, 310 (Gregory, C.J., dissenting), cert. denied, 139 S. Ct. 14 (2018)

(“Because Brown asserts th[e] same right [recognized in Johnson], I would find his

petition timely under § 2255(f)(3), even though his challenge is to the residual

clause under the mandatory Sentencing Guidelines, rather than the ACCA.”);

Chambers v. United States, 763 F. App’x 514, 519 (6th Cir. Feb. 21, 2019) (Moore, J.,

Solicitor General has asked this Court to grant review this Term in either Borden or

Walker to resolve the reckless-offense question.

concurring), pet. for rh’g denied, No. 18-3298 (6th Cir. June 26, 2019) (expressing

view that Raybon “was wrong on this issue.”); London, 937 F.3d at 510 (5th Cir.)

(Costa, J., concurring in judgment) (“We are on the wrong side of a split. . . . Our

approach fails to apply the plain language of the statue and undermines the prompt

presentation of habeas claims the statute promotes.”); Hodges v. United States, 778

F. App’x 413, 414-15 (9th Cir. 2019) (Berzon, J., concurring) (“[I]n my view,

Blackstone was wrongly decided.”); Lester v. United States, 921 F.3d 1306, 1319

(11th Cir. 2019) (en banc) (Martin, J., joined by Rosenbaum and J. Pryor, JJ.,

statement respecting the denial of rehearing en banc) ([T]he opinion in In re Griffin

is mistaken.”); id. at 1328-33 (Rosenbaum, J., joined by Martin and J. Pryor, JJ.);

see also In re Sapp, 827 F.3d 1334, 1336-41 (11th Cir. 2016) (Jordan, Rosenbaum,

Pryor, JJ.) (calling Griffin into question).

The First, Second, and D.C. Circuits have not decided the question, but the

First Circuit strongly implied (in the context of the prima facie showing required for

certification of a second or successive § 2255 motion) that it would agree with the

Seventh Circuit on the merits. Moore v. United States, 871 F.3d 72, 81-82 (1st Cir.

2017); see Pullen, 913 F.3d at 1284 n.16 (noting that “language in Moore suggests

the panel of the First Circuit would have reached the same conclusion had it been

conducting a [substantive] analysis”). Meanwhile district courts in these three

circuits have granted Johnson relief to individuals sentenced under the residual

clause in the mandatory guidelines. United States v. Hammond, 351 F. Supp. 3d

106 (D.D.C. 2018); Blackmon v. United States, 2019 WL 3767511, at *6 (D. Conn.

Aug. 9, 2019); United States v. Moore, 2018 WL 5982017 (D. Mass. Nov. 14, 2018);

Mapp v. United States, 2018 WL 3716887 (E.D.N.Y. Aug. 3, 2018).

The deep disagreement between and within the circuits is cemented. By

denying rehearing en banc in Chambers, the Sixth Circuit reaffirmed its holding in

Raybon despite this Court’s “straightforward application” in Dimaya of the rule in

Johnson to invalidate § 16(b)’s residual clause. 138 S. Ct. at 1213. The Fifth and

Eleventh Circuits also recently denied rehearing en banc. Order, Hodges v. United

States, 778 F. App’x 413 (Oct. 17, 2019) (No. 17-35408); Lester, 921 F.3d at 1307.

The Third and Eighth Circuits have likewise signaled they are not budging. United

States v. Wolfe, 767 F. App’x 390, 391 (3d Cir. 2019); Mora-Higuera v. United States,

914 F.3d 1152, 1154 (8th Cir. 2019). And the Seventh Circuit has declined the

government’s suggestion to reconsider Cross, Sotelo v. United States, 922 F.3d 848,

851 (7th Cir. 2019), reaffirming just last month its view that the mandatory

guidelines’ residucal clause is void for vagueness under Johnson, Daniels v. United

States, __ F.3d __, 2019 WL 4891991, at *1, *4 (7th Cir. Oct. 4, 2019). This conflict

will remain until this Court resolves it.

As Judge Moore in Chambers urged,

[This] Court should resolve this matter. It is problematic that these

individuals are potentially sentenced in violation of the Constitution or

laws of the United States without clarification as to whether Johnson

applies to a sentencing provision that is worded identically to, and is

equally binding as, the ACCA’s unconstitutionally vague residual

clause.

Chambers, 763 F. App’x at 526-27 (Moore, J., concurring).

II.

The circuits holding that Johnson does not apply by its own force to

the mandatory guidelines’ residual clause are wrong.

1. The Fourth and Tenth Circuits held before Dimaya that Johnson does not

apply beyond cases involving the exact statute at issue in Johnson. Brown, 868

F.3d at 302; Greer, 881 F.3d at 1258. But Dimaya proves them wrong. It applied

Johnson to strike down as unconstitutionally vague a similar provision in a

different statute, explaining that “Johnson is a straightforward decision, with

equally straightforward application here,” and “tells us how to resolve this [§ 16(b)]

case,” 138 S. Ct. at 1213, 1223.

Then in Davis, this Court applied Johnson to strike down an identical

provision in a different statute as unconstitutionally vague, explaining that

Johnson and Dimaya “teach that the imposition of criminal punishment can’t be

made to depend on a judge’s estimation of the degree of risk posed by a crime’s

imagined ‘ordinary case.’” 139 S. Ct. 2319, 2326 (2019). After Dimaya, even the

government “acknowledge[d] that, if [the categorical approach applies to

§ 924(c)(3)(B)], then § 924(c)(3)(B) must be held unconstitutional too.” Id. at 232627; see also Moore, 871 F.3d at 82 (noting that government “appear[ed] to agree

that the rule is broader than [Johnson’s] technical holding”). Once this Court held

that the categorical approach applies to § 924(c)(3)(B), the Court simply applied

the rule in Johnson to invalidate it. Id. at 2336 (“We agree with the court of

appeals’ conclusion that § 924(c)(3)(B) is unconstitutionally vague.”). The Fourth

and Tenth Circuit’s reasoning cannot survive Dimaya and Davis.

The Third Circuit also adopted an exact-statute approach, but it did so after

Dimaya. Green, 898 F.3d at 321-22. The decision in Green is just as unpersuasive as

Brown and Greer, however, because that decision ignores Dimaya entirely. Ibid.

These circuits’ exact-statute approach conflicts with this Court’s void-forvagueness habeas precedent. In Godfrey v. Georgia, this Court held unconstitutional

a vague Georgia capital-sentencing statute. 446 U.S. 420, 433 (1980). In a later

habeas case, Maynard v. Cartwright held unconstitutional a vague Oklahoma

capital-sentencing statute. 486 U.S. 356, 363-64 (1988). The decision in Maynard

was “controlled by Godfrey,” even though Godfrey and Maynard involved different

sentencing statutes. Stringer v. Black, 503 U.S. 222, 228-29 (1992). And Godfrey

also controlled in Stringer even though that case involved a vague Mississippi

capital-sentencing scheme of a different character than the one in Godfrey. Id. at

229. This line of precedent makes clear that an exact-statute approach is wrong.

They show that this case is “controlled by [Johnson],” even though Johnson involved

a different law fixing permissible sentences. 3

The Sixth and Ninth Circuits relied primarily on Beckles (as did the Third

Circuit in addition to the exact-statute approach). Raybon, 867 F.3d at 63;

Blackstone, 903 F.3d at 1026; Green, 898 F.3d at 321-22. Beckles held that Johnson

3 Although Raybon might be read as limited to the guidelines’ context, the

Sixth

Circuit after Dimaya has also applied Raybon as an exact-statute rule, this before

Davis in the context of the residucal clause in § 924(c)(3)(B) and § 2255(h)(2). In re

Waters, No. 18-5580, 2018 U.S. App. LEXIS 30510, at *4 (6th Cir. Oct. 26, 2018). It

acknowledged that Johnson and Dimaya may “require the invalidation” of that

statute’s residual clause, but said that this Court had not yet so held. But under the

Godfrey/Maynard/Stringer line of precedent, if Johnson “requires the invalidation”

of a criminal provision fixing the scope of criminal liability, then Johnson is the rule

Mr. Simmons needs for his petition to be timely.

does not provide relief for individuals sentenced under the advisory guidelines’

residual clause because the advisory guidelines “do not fix the permissible range of

sentences.” 137 S. Ct. at 892. But Beckles distinguished advisory guidelines from

mandatory guidelines, id. at 894, and cabined its decision: “We hold only that the

advisory Sentencing Guidelines, including § 4B1.2(a)’s residual clause, are not

subject to a challenge under the void-for-vagueness doctrine,” id. at 896. Beckles

does not hold that Johnson’s rule does not apply to the mandatory guidelines.

The Sixth and Ninth Circuits also relied on footnote 4 of Justice Sotomayor’s

concurrence in Beckles. Blackstone, 903 F.3d at 1026; Raybon, 867 F.3d at 629-30.

In that footnote, Justice Sotomayor, like the majority opinion, cabined the decision

in Beckles to the advisory guidelines:

The Court’s adherence to the formalistic distinction between

mandatory and advisory rules at least leaves open the question

whether defendants sentenced to terms of imprisonment before our

decision in [Booker]—that is, during the period in which the Guidelines

did “fix the permissible range of sentences”— may mount vagueness

attacks on their sentences.

Beckles, 137 S. Ct. at 903 n.4 (cleaned up). Rather than take Beckles (and Justice

Sotomayor’s concurrence) at its word—that Johnson does not extend to the advisory

guidelines—the courts fixate on Justice Sotomayor’s use of the phrase “leaves open

the question” to conclude that Johnson could not apply to the mandatory guidelines

because that question is an open one. Blackstone, 903 F.3d at 1027; Raybon, 867

F.3d at 629-30. But it is the decision in Beckles, not Johnson, that purports to leave

that question open. Brown, 139 S. Ct. at 15 (Sotomayor, J., dissenting). Although

the advisory guidelines are not subject to void-for-vagueness challenges, that does

not mean that the mandatory guidelines are not. Beckles, 137 S. Ct. at 894-96.

Beckles did not answer this question because it was not presented. These circuits

have misinterpreted Beckles to preclude them from doing what they may certainly

do: apply the rule in Johnson to an identical residual clause applied in the identical

categorical way to fix the permissible range of sentences.

The Eleventh Circuit in Griffin drew a line between statutes and guidelines

and held that a guideline could never be void for vagueness—whether advisory or

mandatory. 823 F.3d at 1355. But it used bad reasoning. According to the Eleventh

Circuit, guidelines cannot be vague because they “do not establish the illegality of

any conduct and are designed to assist and limit the discretion of the sentencing

judge.” Id. But this equally describes the recidivist sentencing statute held void for

vagueness in Johnson. And as mentioned above, this Court declared sentencing

provisions void for vagueness in Godfrey, Maynard, and Stringer. The Eleventh

Circuit’s reasoning also “denies [] reality” by pretending that the mandatory “‘were

never really mandatory,’” even though courts applied them that way for two

decades.” Lester, 921 F.3d at 1330-31 (Rosenbaum, J., joined by Martin and J.

Pryor, JJ.,).

The Fifth, Eighth, and Tenth Circuits engaged in a retroactivity analysis

under Teague v. Lane, 489 U.S. 268 (1989), to define the scope of Johnson’s right.

London, 937 F.3d at 506-07; Russo, 902 F.3d at 882-83; Pullen, 913 F.3d at 1280-81.

But Johnson’s retroactivity is not in question. This Court has already held that

Johnson’s new rule is retroactive. Welch, 136 S. Ct. at 1265. The dispositive

question here is the substantive scope of the rule, which this Court has defined as

applying to provisions that “fix the permissible range of sentences.” Beckles, 137 S.

Ct. at 892.

The Tenth Circuit adopted the test employed by the Eighth Circuit in Russo.

Pullen, 913 F.3d at 1281. That test asks whether the application of the newly

recognized right is “dictated by precedent” and “apparent to all reasonable jurists”

as opposed to “susceptible to debate among reasonable minds.” Id. The Eighth

Circuit derived this test from three decisions: Teague, 489 U.S. at 301, Butler v.

McKellar, 494 U.S. 407, 415 (1990), and Chaidez v. United States, 568 U.S. 342, 347

(2013).

These decisions dealt with retroactivity, not the scope of a newly recognized

right. In Teague, this Court conducted a retroactivity analysis and determined that

the petitioners’ proposed new rule would not apply retroactively to cases on

collateral review. 489 U.S. at 301. Thus, this Court declined to consider “whether

the fair cross section requirement should be extended to the petit jury.” Id. at 30910, 316. Because Teague did not address the scope of the right asserted by the

defendant, Teague provides no direct guidance on that issue.

Butler also involved retroactivity. There, a later decision made clear that the

defendant’s interrogation was unconstitutional. 494 U.S. at 411-12. The scope of the

new right was not in question, only whether this right applied retroactively to cases

on collateral review. Id. at 412-13. The issue here is not whether Johnson is

retroactive. It is. The issue is whether Johnson’s right encompasses the mandatory

guidelines. Nothing in Butler helps to answer that question.

Chaidez also involved retroactivity, so for that reason is also not directly on

point. 568 U.S. at 344. Even so, as Judge Costa recognized, the retroactivity

analysis provides a useful analogy for defining the scope of a newly recognized right.

London, 937 F.3d at 512 (Costa, J., concurring in the judgment). Chaidez explains

“that a case does not announce a new rule when it is merely an application of the

principle that governed a prior decision to a different set of facts.” Id. at 347-48

(cleaned up).

Where the beginning point of our analysis is a rule of general

application, a rule designed for the specific purpose of evaluating a

myriad of factual contexts, it will be the infrequent case that yields a

result so novel that it forges a new rule, one not dictated by precedent.

Otherwise said, when all we do is apply a general standard to the kind

of factual circumstances it was meant to address, we will rarely state a

new rule for Teague purposes.

Id. at 348 (cleaned up). If anything, Chaidez confirms that Johnson’s newly

recognized right applies to the mandatory guidelines. Dimaya plainly shows us

that Johnson announced “a rule of general application, a rule designed for the

specific purpose of evaluating a myriad of factual contexts,” id.; 138 S. Ct. at 121023, while Booker establishes that the mandatory guidelines fixed the permissible

range of sentences, satisfying Beckles’ test for the substantive scope of Johnson’s

rule.

2. Booker held that the application of the mandatory guidelines violated a

defendant’s Sixth Amendment right to have a jury find facts “essential to his

punishment.” 543 U.S. at 232. Because, under a mandatory guidelines scheme,

judges were authorized to find facts “necessary to support a sentence exceeding the

maximum authorized by” a defendant’s guilty plea or a jury’s verdict, the

mandatory guidelines violated the Sixth Amendment. Id. at 244 (emphasis added).

Booker made clear that the mandatory guidelines “impose[d] binding requirements

on all sentencing judges.” Id. at 233. It was the “binding” nature of the guidelines

that triggered a constitutional problem: “[i]f the Guidelines as currently written

could be read as merely advisory provisions,” “their use would not implicate the

Sixth Amendment.” Id. And this “mandatory and binding” nature of the guidelines

came directly from Congress. Id. at 233-34; 18 U.S.C. § 3553(b) (directing that

courts “shall impose a sentence of the kind, and within the range” established by

the Guidelines). “Because they are binding on judges, we have consistently held

that the Guidelines have the force and effect of laws.” 543 U.S. at 234.

Booker rejected the idea that the availability of departures rendered the

guidelines anything less than mandatory and binding laws. “In most cases, as a

matter of law, the Commission will have adequately taken all relevant factors into

account, and no departure will be legally permissible. In those instances, the judge

is bound to impose a sentence within the Guidelines range.” Id. (emphasis added).

Indeed, Booker acknowledged that, had the district court departed from the

mandatory guidelines range in Mr. Booker’s case, the judge “would have been

reversed.” Id. at 234-35.

In Booker, the government argued that the guidelines did not violate the

Sixth Amendment because they “were promulgated by a Commission rather than

the Legislature.” Id. at 237. But Booker rejected the distinction. “In our judgment

the fact that the Guidelines were promulgated by the Sentencing Commission,

rather than Congress, lacks constitutional significance.” 543 U.S. at 237. It did not

matter “whether the legal basis of the accusation is in a statute or in guidelines

promulgated by an independent commission.” Id. at 239. Rather, “the Commission

is an independent agency that exercises policymaking authority delegated to it by

Congress.” Id. at 243.

Booker reflects this Court’s long understanding that the mandatory

guidelines range fixes the statutory penalty range. United States v. R.L.C., 503

U.S. 291, 297 (1992) (“The answer to any suggestion that the statutory character of

a specific penalty provision gives it primacy over administrative sentencing

guidelines is that the mandate to apply the Guidelines is itself statutory.”);

Mistretta v. United States, 488 U.S. 361, 391 (1989) (“the Guidelines bind judges

and courts in the exercise of their uncontested responsibility to pass sentence in

criminal cases”); Stinson v. United States, 508 U.S. 36, 42 (1993) (noting “the

principle that the Guidelines Manual is binding on federal courts”). In R.L.C., this

Court held that the applicable “maximum” term of imprisonment authorized for a

juvenile tried and convicted as an adult was the upper limit of the guidelines range

that would apply to a similarly situated adult offender. 503 U.S. at 306-307. The

decision in R.L.C. makes sense only if the mandatory guidelines range was the

statutory penalty range.

Beckles cabins Johnson’s right to provisions that “fix the permissible range

of sentences.” 137 S. Ct at 892. The mandatory guidelines did just that. Booker,

543 U.S. at 232-243; Cross, 892 F.3d at 306 (“as the Supreme Court understood in

Booker, the residual clause of the mandatory guidelines did not merely guide

judges’ discretion; rather, it mandated a specific sentencing range and permitted

deviation only on narrow, statutorily fixed bases”); Moore, 871 F.3d at 81 (noting

Booker “essentially resolved” this issue when it ruled that “the Guidelines [were]

binding on district judges”).

3. The Seventh Circuit got it right. It held that for purposes of § 2255(f)(3),

the new retroactive rule announced in Johnson applies to the residual clause in the

mandatory guidelines. United States v. Cross, 892 F.3d 288, 299-306 (7th Cir.

2018). In doing so, the Seventh Circuit rejected the approach taken by other

circuits, explaining that it “suffers from a fundamental flaw” because

[i]t improperly reads a merits analysis into the limitations period.

Section 2255(f)(3) runs from “the date on which the right asserted was

initially recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3)

(emphasis added). It does not say that the movant must ultimately

prove that the right applies to his situation; he need only claim the

benefit of a right that the Supreme Court has recently recognized. An

alternative reading would require that we take the disfavored step of

reading “asserted” out of the statute.

Id. at 293-94. The court held that the right asserted “was recognized in Johnson.”

Id. “Under Johnson, a person has a right not to have his sentence dictated by the

unconstitutionally vague language of the mandatory residual clause.” Id. at 294.

Because the appellants “assert precisely that right,” they therefore “complied with

the limitations period of section 2255(f)(3) by filing their motions within one year

of Johnson.” Id.

Turning to the merits question, the Seventh Circuit concluded that the

“same two faults” that render the ACCA’s residual clause—the combined

indeterminacy of how much risk the crime of conviction posed and the degree of

risk required—“inhere in the residual clause of the guidelines.” Id. at 299. It

“hardly could be otherwise” because the clauses are identically worded and the

categorical approach applies to both. Id. Additionally, the Seventh Circuit held

that the mandatory Guidelines’ residual clause implicated the twin concerns of the

vagueness doctrine because it fixed the permissible range of sentences. Id. at 305.

The court explained that Beckles “reaffirmed that the void-for-vagueness

doctrine applies to ‘laws that fix the permissible sentences for criminal offenses.’”

Id. (quoting Beckles, 137 S. Ct. at 892). “As Booker described, the mandatory

guidelines did just that. They fixed sentencing ranges from a constitutional

perspective.” Id. Because the Guidelines were “‘not advisory’” but “‘mandatory and

binding on all judges,’” id. (quoting Booker, 543 U.S. at 233-34), “[t]he mandatory

guidelines did . . . implicate the concerns of the vagueness doctrine.” Id.

In sum, because the Sixth Circuit’s decision is both inconsistent with this

Court’s precedent and incorrect on its own terms, review is necessary.

III.

This Court should resolve this extremely important question.

The importance of this issue cannot be understated. “Regardless of where

one stands on the merits of how far Johnson extends, this case presents an

important question of federal law that has divided the courts of appeals and in

theory could determine the liberty of over 1,000 people.” Brown, 139 S. Ct. at 14

(Sotomayor, J., dissenting from the denial of certiorari). And because the

guidelines are no longer mandatory, it is impossible to resolve this issue on direct

appeal.

It is no answer that some of these offenders ultimately may not be eligible

for relief. This Court in Welch decided the question of Johnson’s retroactivity even

though his eligibility for relief remained in dispute. Welch, 136 S. Ct. at 1263-64.

Mr. Simmons may well be eligible, depending on this Court’s resolution of the

reckless-offense issue—also an extremely important question the Solicitor General

has asked the Court to resolve this Term. If reckless offenses still do not qualify

under the force clause (as when Mr. Simmons was sentenced in 2001), he will serve

an illegal sentence simply because he was sentenced in the Sixth Circuit, while

untold numbers of offenders will get relief from their sentences in the Seventh

Circuit and elsewhere. Unless this Court grants certiorari to resolve the issue, the

liberty of federal prisoners sentenced under the mandatory residual clause will

continue to depend on the luck of geography.

This case squarely presents the timeliness question. Mr. Simmons preserved

the issue below, and the Sixth Circuit denied the certificate of appealability in these

§ 2255 proceedings based on its binding precedent in Raybon. Mr. Simmons also

preserved his claim that his 1993 aggravated assault conviction qualified only

under the residual clause under binding circuit precedent holding that reckless

offenses do not qualify. Should this Court hold that reckless offenses still do not

qualify under the force clause, Mr. Simmons would prevail on the merits of his

claim, and his correct guideline range would be reduced by over ten years. With

approximately three years left to serve, he would be eligible for immediate release.

IV.

This Court should also resolve whether the mandatory guidelines’

residual clause is void for vagueness.

The one circuit (the Seventh) that has definitively reached the merits of this

issue after Beckles has held that the mandatory guidelines’ residual clause is void

for vagueness. Cross, 892 F.3d at 307. That decision is correct. The language of

§ 4B1.2(a)(2)’s residual clause at issue in Cross (and here) is identical to the

residual clause struck down in Johnson (§ 924(e)(2)(B)(ii)). When mandatory, the

guidelines operated as statutes, so could be void for vagueness like statutes. See

Part II.2, supra. Just as the residual clauses at issue in Johnson, Dimaya, and

Davis are void for vagueness, § 4Bl.2(a)(2)'s mandatory residual clause must also be

void for vagueness.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

ELIZABETH B. FORD

Federal Community Defender

JENNIFER NILES COFFIN

Assistant Federal Defender

Counsel of Record

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

Counsel for Marcus T. Simmons

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.