UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA, )
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v. ) No. 1:00-cr-00159 (RCL)
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DERREK ARRINGTON, )
Defendant. )
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_______________________________________)
MEMORANDUM
Defendant Derrek Arrington seeks a court order modifying his sentence under 28 U.S.C. § 2255.
He looks for relief in the holding of Johnson v. United States, 135 S. Ct. 2551 (2015). The Johnson Court
held that the residual clause defining “violent felony” under the Armed Career Criminal Act (ACCA) was
unconstitutionally vague. Arrington was sentenced pursuant to then-mandatory guidelines that contained
an identical residual clause defining “crime of violence.” If the ACCA residual clause is
unconstitutionally vague, the logic goes, so too is the residual clause under the mandatory sentencing
guidelines. The government objects to all this and more. It says that Arrington’s claim is untimely and
procedurally defaulted, that Johnson did not apply to the mandatory sentencing guidelines, that it cannot
apply to the guidelines retroactively anyways, and that in any event Arrington’s sentence was still valid
under other, unchallenged clauses within the guidelines.
I. BACKGROUND
In September of 2000, a jury convicted Arrington of assaulting a federal officer with a dangerous
weapon, in violation of 18 U.S.C. § 111(a) and (b), and unlawful possession of a firearm by a convicted
felon, in violation 18 U.S.C. § 922(g). Def.’s Suppl. Mot. Vacate 4, ECF No. 177. Because Arrington had
already been convicted of two separate armed robbery offenses—one in Maryland and one in
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Washington, D.C.—Judge Robertson sentenced him as a “career offender” under the mandatory
guidelines. Id. at 5–6. The career offender designation raised the sentencing guideline range, and
Arrington received the statutory maximums for his § 111 and § 922 convictions—twenty years in all. Id.
at 7. He appealed, but the D.C. Circuit affirmed. United States v. Arrington, 309 F.3d 40 (D.C. Cir. 2002).
He filed a previous § 2255 motion, which was denied. Def.’s Suppl. Mot. Vacate 8–9, ECF No. 177. In
June of 2016, he filed this second § 2255 motion. Emerg. Suppl. Mot., ECF No. 174.
II. DISCUSSION
Arrington’s motion relies on the Supreme Court’s 2015 holding in Johnson. There, the Court
considered whether one of the clauses defining “violent felony” under the ACCA was unconstitutionally
vague. Johnson, 135 S. Ct. at 2555. The statute defined a violent felony as:
any crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force against
the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added).
According to the Court, the italicized residual clause was indeed void for vagueness. Johnson,
135 S. Ct. at 2563. “Two features of the residual clause conspire to make it unconstitutionally vague.” Id.
at 2557. First, it “leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the
judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or
statutory elements.” Id. And second, it “leaves uncertainty about how much risk it takes for a crime to
qualify as a violent felony. It is one thing to apply an imprecise ‘serious potential risk’ standard to real-
world facts; it is quite another to apply it to a judge-imagined abstraction.” Id. at 2558. In other words, the
clause invited unpredictable and arbitrary enforcement.
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Two years later, the Court expounded on Johnson in Beckles v. United States, 137 S. Ct. 886
(2017). In considering a vagueness challenge to the advisory sentencing guidelines, the Court looked to
“the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary
enforcement” Id. at 894. Unanimously, the Court distinguished the advisory guidelines’ residual clause
from its carbon copy struck down in Johnson. Id. at 897. Advisory sentencing guidelines, according to the
Court, are fundamentally different from the statute at issue in Johnson and are not subject to due process
vagueness challenges. Id. The Court was satisfied that notice is adequately provided by the statutory
ranges that the guidelines operate within. Id. at 894. Prohibited conduct and its spectrum of associated
punishment is already publicized to would-be defendants—the guidelines merely advise a judge within
that spectrum. See id. at 895 (“[T]he legally prescribed range is the penalty affixed to the crime.” (citing
Alleyne v. United States, 570 U.S. 99, 112 (2013))). Arbitrary enforcement concerns are likewise
misplaced—the guidelines are not regulations to be enforced at all, but rather conventions to be consulted.
Id. at 894.
Unlike the ACCA, the advisory guidelines do not “fix the permissible sentences” for crimes. Id.
at 892. When Arrington was sentenced, however, the sentencing guidelines were “mandatory and binding
on all judges.” United States v. Booker, 543 U.S. 220, 233 (2005). Departures were rarely available. Id. at
234. In 2005, the Supreme Court in Booker struck down the “mandatory” portions of the sentencing
statute, rendering the guidelines merely advisory. Id. at 259. The clause at issue in Beckles is the very
same one Arrington now confronts, the only difference being the mandatory force of the guidelines during
Arrington’s sentencing. While Beckles foreclosed challenges to the clause under the advisory regime, it
did not decide whether its holding extended to sentences imposed under the mandatory guidelines.
Concurring in Beckles, Justice Sotomayor pointed this out:
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.
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That question is not presented by this case and I, like the majority, take no position on its
appropriate resolution.
Beckles, 137 S. Ct. at 903 n.4. (Sotomayor, J., concurring) (emphasis added) (internal citations omitted).
The government cites Justice Sotomayor’s language as support for its assertion that Arrington’s
motion is untimely. Gov’t Opp’n 14, ECF No. 183. After all, how can Johnson’s extension to the
mandatory guidelines be both an established right and an open question? Under § 2255, defendants have a
one-year window to file a motion, with four separate triggers that will start or renew the limitations
period. 28 U.S.C. § 2255(f). The first measuring event is “the date on which the judgment of conviction
becomes final.” Id. § 2255(f)(1). Arrington’s conviction became final on March 3, 2003—the date his
petition for certiorari was denied. Arrington v. United States, 537 U.S. 1241 (2003). Therefore Arrington
relies on another measuring event: “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.” Id. § 2255(f)(3). “An applicant has one year from the date on
which the right he asserts was initially recognized by this Court.” Dodd v. United States, 545 U.S. 353,
357 (2005). Arrington filed his § 2255 motion within one year of Johnson, which he claims restarted his
statute of limitations under (f)(3). Emerg. Suppl. Mot., ECF No. 174. Put simply, whether Arrington’s
motion is timely turns on whether Johnson recognized a right not to be sentenced under the mandatory
guidelines’ residual clause. Does Johnson establish a broad principle, or is it cabined to statutes more
closely resembling the ACCA?
III. ANALYSIS
Most circuits have weighed in on this question, and the tally is lopsided. The Third, Fourth, Fifth,
Sixth, Eighth, Ninth, and Tenth Circuits do not recognize Johnson as controlling the constitutionality of
the mandatory sentencing guidelines’ residual clause. United States v. Green, 898 F.3d 315, 321 (3d Cir.
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2018); United States v. Brown, 868 F.3d 297 (4th Cir. 2017); United States v. London, 2019 WL 4065601
(5th Cir. Aug. 29, 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.
Greer, 881 F.3d 1241 (10th Cir.). Only the Seventh Circuit has affirmatively disagreed. Cross v. United
States, 892 F.3d 288 (7th Cir. 2018). The First Circuit and this Circuit have faced similar cases but
ultimately resolved them on grounds other than timeliness. Moore v. United States, 871 F.3d 72 (1st Cir.
2017); United States v. Hicks, 911 F.3d 623 (D.C. Cir. 2018) (2019). Beckles looms large in the opinions
as distinguishing sentencing guidelines from statutory ranges and confirming in concurrence that the key
question is “le[ft] open.” Beckles, 137 S. Ct. at 903 n.4.
This Court joins the bandwagon. Johnson concerned a statute that fixed minimum and maximum
sentences, while the mandatory guidelines simply narrowed a judge’s discretion within such a range.
Beckles rejected the argument that identically worded clauses that operate in other contexts are
presumptively unconstitutional following Johnson. Seven circuits are unconvinced that Johnson’s holding
extends to the mandatory guidelines. “[A] case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288,
301 (1989) (plurality opinion). “Dictated by precedent,” meanwhile, means that “no other interpretation
was reasonable.” Lambrix v. Singletary, 520 U.S. 518, 538 (1997). Clearly there are multiple reasonable
interpretations of Johnson’s reach.
In order to prevail, Arrington must persuade the Court not that the question should be resolved in
his favor, but rather that it has already been resolved. The issue is not whether a judge could write a
sensible opinion holding the mandatory guidelines’ residual clause unconstitutionally vague, but whether
the Supreme Court did just that in Johnson. It did not. There was a straightforward theory available after
Johnson: If one clause affecting sentencing was unconstitutionally vague, identical clauses must also be
unconstitutional. Beckles quashed that theory. Arrington focuses on language that emphasizes the
guidelines’ advisory nature but disregards portions of the opinion that may also apply to mandatory
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guidelines. He cites Dimaya v. Sessions, 138 S. Ct. 1204 (2018), a Supreme Court holding that applies
Johnson to a similarly worded clause in another criminal statute. Def.’s Suppl. Reply, ECF No. 190.
Dimaya is offered as proof that Johnson is not limited to the ACCA. This assertion is persuasive but
unproductive. By its own terms, Dimaya is a “straightforward application” of Johnson. Dimaya, 138 S.
Ct. at 1213. Extracting a rule from Johnson that applies to another “criminal statute[] with criminal
sentencing consequences” is a short leap. Id. at 1217. Stretching that rule to cover the mandatory
guidelines after Beckles is not. Dimaya is an extension of Johnson, not a broadening of it. This Court need
not reach the question of whether the mandatory sentencing guidelines’ residual clause is
unconstitutionally vague—acknowledging that the question is unsettled is enough to render Arrington’s
motion untimely.
The Seventh Circuit finds a fatal flaw in the popular reading of § 2255(f)(3). Cross, 892 F.3d at
293-4. Cross’s reading would have a court opt out of deciding whether a right newly recognized by the
Supreme Court is in fact the one being asserted by a defendant. Id. It is not up to the court, apparently, to
“read[] a merits analysis into the limitations period.” Id. at 293. It is enough that defendants assert the
right—whether they may actually claim it is a question for down the line. Id. This reading is unsupported
by authority. The most obvious concern raised by Cross is the ease with which a defendant could bypass
§ 2255’s one-year limitations period. He need only hitch his claim for relief to a recent Supreme Court
holding—whether the claim and the holding line up is apparently irrelevant. A court in this District has
adopted Cross’s reading and comes to its defense, satisfied that such a frivolous “motion may be
summarily dismissed if the right has not been, in fact, either newly recognized by the Supreme Court or
made retroactively applicable to cases on collateral review.” United States v. Hammond, 354 F. Supp. 3d
28, 41 (D.D.C. 2018) (internal quotations omitted). This approach would at best accomplish the same
result at the expense of nullifying the limitations period. But Cross is not consistent with the text of the
statute. 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). The “right asserted” must be the same right that was
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“recognized” by the Supreme Court. Arrington’s right asserted is “the right not to have a sentence fixed
by an unconstitutionally vague residual clause.” Def.’s Reply Mot. 1, ECF No. 189. For the reasons
detailed above, that is not the right recognized by the Court in Johnson. See Green, 898 F.3d at 322 (“We
are not persuaded by the [Seventh Circuit’s] brief analysis on this issue, which effectively reads
‘recognized’ out of 28 U.S.C. § 2255(f)(3) by not engaging in an inquiry into whether the right asserted
by the petitioner is the same right that was recognized by the Supreme Court . . . .”).
IV. CONCLUSION
Because the motion is untimely, we need not address the government’s remaining arguments.
Beckles confirmed that Johnson’s holding is too narrow to control the constitutionality of the mandatory
sentencing guidelines’ residual clause.
A separate order shall issue.
SIGNED this 24th day of September, 2019.
_______________/s/_______________
Royce C. Lamberth
United States District Judge
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