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)
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 28 U.S.C. § 2255 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 21 U.S.C. §§ 841(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 28 U.S.C. § 2255,
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, 135 S. Ct. 2551 (2015). In that case, the Supreme Court declared that
the residual clause of the Armed Career Criminal Act (“ACCA”), found in 18
U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. The ACCA provides for a
15‐year mandatory minimum sentence for defendants convicted under 18 U.S.C.
§ 922(g) if they have three prior “violent felon[ies]” or “serious drug offense[s].”
18 U.S.C. § 924(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.” 28 U.S.C. § 2255(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. 28 U.S.C. § 2244(b)(3)(C);
see Bell v. United States, 296 F.3d 127, 128 (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, 296 F.3d at 128 (quoting Bennett v. United
States, 119 F.3d 468, 469 (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,
136 S. Ct. 1257 (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, 802
F.3d 1185, 1196 (11th Cir. 2015). But other circuits have rejected that conclusion.
See United States v. Madrid, 805 F.3d 1204, 1212 n.10 (6th Cir. 2015); United States v.
Taylor, 803 F.3d 931, 933 (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, 2016 WL 1029080 (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, 616 F. App’x 415, 416 (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, 2016 WL 3181417, 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 28 U.S.C. § 1631. However, because
the Supreme Court will likely decide in Beckles whether Johnson applies
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retroactively to the Guidelines, the district court is instructed to hold Blow’s
§ 2255 motion in abeyance pending the outcome of Beckles.
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