United States District Court, D. Idaho
MEMORANDUM DECISION, ORDER, AND DENIAL OF CERTIFICATE
Lynn Winmill Chief U.S. District Court Judge
moves to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. The Government has filed a
response, arguing that Whitlow's motion must be dismissed
as a matter of law. The matter is fully briefed by both sides
and at issue.
the Court finds that the governing issue is a matter of law,
no evidentiary hearing is necessary. For the reasons
explained below, the Court finds that Johnson does not apply
and that Whitlow's motion must be denied.
was originally charged in two separate cases for drug and
firearm offenses. His cases were consolidated for trial, and
a jury convicted him on all counts against him. In 2003,
Whitlow was sentenced to 444 months of imprisonment after the
Court deemed him to be a Career Offender under the
Guidelines. He appealed and won a reversal of his conspiracy
conviction. He was resentenced in 2006 to 300 months of
imprisonment, again based on a finding that he was a Career
Offender. That resentencing was affirmed by the Ninth Circuit
in 2009. See U.S. v. Whitlow, 308 F. App'x 236
(9th Cir. 2009).
first motion under § 2255 was denied. See Whitlow v.
U.S., 2012 WL 4758073 (D. Idaho, Oct. 5, 2012).
Following the Supreme Court's decision in Johnson v.
U.S., 135 S.Ct. 2551 (2015), the Ninth Circuit granted
Whitlow's request to file a second motion under §
2255 to argue issues raised by Johnson. See Whitlow v.
U.S., No. 16-71585 (9th Cir. Dec. 27, 2016).
argues that Johnson renders unconstitutional the residual
clause of the Career Offender provisions of the Guidelines,
resulting in a substantial reduction in his sentence. Whitlow
was deemed a Career Offender due to two prior convictions,
one for second degree assault in Oregon and another for
conspiracy to manufacture a controlled substance. See
Guideline § 4B1.1. Whitlow argues that his Oregon
conviction cannot qualify as a “crime of
violence” under Johnson, and that he was erroneously
sentenced as a Career Offender.
Johnson, the Supreme Court struck down the residual clause of
the Armed Career Criminal Act (ACCA) as unconstitutionally
vague. Whitlow points out that the residual clause in the
Career Offender provision of the Sentencing Guidelines is
identical to that struck down in Johnson, and that it follows
from Johnson that the Guideline provision must fall as well.
that argument was rejected in Beckles v. U.S., 137
S.Ct. 886 (2017). There the Supreme Court distinguished the
ACCA from the Guidelines, holding that the Guidelines are
advisory and do not fix the permissible range of sentences
but merely guide the exercise of a court's discretion in
choosing an appropriate sentence within the statutory range.
Accordingly, Beckles held that the Career Offender provisions
of the Guidelines are not subject to a vagueness challenge
under the Due Process Clause.
was originally sentenced in 2003, at a time when the
Guidelines were mandatory. But after a successful appeal, he
was resentenced in 2006, a year after the Supreme Court
declared the Guidelines as advisory only. See U.S. v.
Booker, 543 U.S. 220 (2005). Because Whitlow's final
sentence was issued under the advisory Guidelines, Beckles
governs the result in this case, and Whitlow's motion
must be denied.
independent reason for denying Whitlow's motion, the
Court notes that he was not sentenced under the residual
clause - he was sentenced under the elements clause. Even so,
Whitlow responds, his sentence under the elements clause is
void because the Oregon statute for second degree assault is
overbroad and unconstitutional. But years have passed between
the time Whitlow's resentencing was affirmed by the Ninth
Circuit in 2009, and his filing of this second habeas
petition on 2016. The one-year limitations period imposed by
§ 2255(f) starts running from the latest of the
following four events: (1) the date on which the judgment
became 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 U.S. is removed; (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 presented could have been discovered
through due diligence.
did not need to await the discovery of any facts to challenge
his sentence under the elements clause, and there has been no
newly recognized right granted, or impediment removed, that
would result in the limitations period starting sometime
after Whitlow's resentencing became final when the Ninth
Circuit rejected his appeal in 2009. By the time Whitlow
filed this second habeas petition in 2016, the ...