NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0222n.06
No. 16-3332
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TERON K. HARRIS, )
FILED
) Apr 17, 2017
Petitioner-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA, )
NORTHERN DISTRICT OF OHIO
)
Respondent-Appellee. )
)
)
AMENDED OPINION
BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. With its decision in Johnson v.
United States, 135 S. Ct. 2551 (2015), the United States Supreme Court effected a sea change in
the realm of criminal sentencing. By holding that the so-called “residual clause” of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was void for vagueness, the Court afforded
thousands of individuals the opportunity to reduce lengthy prison sentences imposed under that
suspect provision.1 Prior to the release of the Johnson decision, petitioner Teron Harris pleaded
guilty in federal district court to a charge of being a felon in possession of a firearm and was
sentenced in accordance with the “crime of violence” provisions of the United States Sentencing
1
In relevant part, the residual clause of the ACCA defined a “violent felony” as any crime punishable by
imprisonment for more than one year that “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
No. 16-3332, Harris v. United States
Guidelines then in effect—provisions that tracked the language of the residual clause of the
ACCA.2 See USSG §§ 2K2.1(a)(2) and 4B1.2(a) (2013).3
Thus, in the aftermath of Johnson, Harris filed a motion under 28 U.S.C. § 2255 seeking
the relief available in the post-Johnson landscape. However, the district court denied the motion
to vacate Harris’s 60-month, below-Guidelines-range prison sentence, and Harris appealed that
determination to this court. Given the pendency of a case before the Supreme Court that sought
to resolve the issue of whether the residual clause of the Guidelines, like the residual clause of
the ACCA, was subject to a void-for-vagueness challenge, we held Harris’s appeal in abeyance.
On March 6, 2017, the Court released its ruling in Beckles v. United States, 137 S. Ct. 886
(2017), holding “that the advisory Sentencing Guidelines are not subject to a vagueness
challenge under the Due Process Clause and that § 4B1.2(a)’s residual clause is not void for
vagueness.” Id. at 895. We now revisit the appeal in light of the guidance offered in Beckles and
affirm the district court’s denial of Harris’s § 2255 motion, concluding that the petitioner failed
to file the motion within the applicable one-year filing period of 28 U.S.C. § 2255(f).
FACTUAL AND PROCEDURAL BACKGROUND
In January 2014, Harris pleaded guilty to a charge of possessing a firearm after having
previously been convicted on separate occasions in Ohio state courts of burglary in the fourth
degree and assault in the fourth degree—offenses that carried punishments of imprisonment for
more than one year. The presentence investigation report prepared by the U.S. Probation Office
recommended that Harris’s base offense level be set at 24, pursuant to the provisions of
2
At the time of Harris’s sentencing, the Guidelines defined a “crime of violence”—both for purposes of enhancing
firearms sentences under USSG § 2K2.1(a) and for sentencing individuals as career offenders—as including any
criminal act that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
USSG § 4B1.2(a)(2); USSG § 2K2.1, comment. (n.1) (2013).
3
Pursuant to Amendment 798 to the Guidelines, effective August 1, 2016, the Sentencing Commission deleted the
residual clause contained in USSG § 4B1.2(a)’s definition of a “crime of violence” and replaced it with language
that simply enumerates specific offenses that can be considered “crimes of violence.”
-2-
No. 16-3332, Harris v. United States
§ 2K2.1(a)(2) of the United States Sentencing Guidelines, because Harris’s unlawful possession
of a firearm occurred “subsequent to sustaining at least two felony convictions of . . . a crime of
violence . . . .”
Various adjustments to Harris’s base offense level, as well as consideration of his prior
criminal record, ultimately resulted in an advisory Guidelines sentencing range of 84-105
months’ imprisonment. The district court varied downward from that range, however, and
imposed a prison sentence of 60 months. Harris chose not to appeal either his conviction or his
sentence.
More than a year later, on June 26, 2015, the Supreme Court released its opinion in
Johnson, declaring the residual clause of the ACCA’s definition of a “violent felony” to be
unconstitutionally vague. Because the ACCA’s residual clause was couched in language
identical to that defining a “crime of violence” for purposes of the Guidelines’ career-offender
provision, USSG § 4B1.1(a), and the crime-of-violence enhancement in USSG § 2K2.1(a), in
February 2016 Harris filed a pro se motion to vacate, set aside, or correct the sentence previously
imposed upon him, pursuant to 28 U.S.C. § 2255. That motion did not identify specific grounds
for relief, and the district court appointed counsel for Harris and permitted the filing of an
amended motion to vacate sentence. In the amended filing, Harris argued that Johnson should be
applied retroactively to his case and, as a result, that neither of his two prior state-court
convictions could serve as predicates for enhancing the base offense level for his felon-in-
possession conviction.
The district court denied the motion, pointing out what the court viewed as a critical
distinction between the situations presented in Johnson and in Harris’s case. As the district court
explained, Johnson involved an ACCA enhancement that actually increased a statutory-
-3-
No. 16-3332, Harris v. United States
maximum penalty; although Harris’s advisory Guidelines sentencing range also was enhanced,
the new range still remained within the range of punishments established by statute. Harris
appealed that ruling, arguing once again that the decision in Johnson constituted a new,
substantive rule of law that should apply retroactively to collateral review of sentences imposed
pursuant to the ACCA and to sentences imposed in accordance with the definition of a “crime of
violence” found in the Guidelines.
DISCUSSION
As we noted earlier, Harris did not appeal from the district court’s January 15, 2014,
entry of judgment that imposed upon him a 60-month prison sentence. That judgment thus
became final on January 29, 2014. See Sanchez-Castellano v. United States, 358 F.3d 424, 427
(6th Cir. 2004) (“[W]hen a federal criminal defendant does not appeal to the court of appeals, the
judgment becomes final upon the expiration of the period in which the defendant could have
appealed to the court of appeals, even when no notice of appeal was filed.”). As a result,
Harris’s February 2016 motion was not filed within one year of the date his judgment of
conviction became final, as required by 28 U.S.C. § 2255(f)(1).
However, a § 2255 motion also will be considered timely if it is filed within one year of
the date on which any government-created impediment to the filing is removed, 28 U.S.C.
§ 2255(f)(2), within one year of the date on which the asserted right was recognized by the
Supreme Court and made retroactively applicable to cases on collateral review, 28 U.S.C.
§ 2255(f)(3), or within one year of the date on which facts supporting the claim first could have
been discovered through the exercise of due diligence, 28 U.S.C. § 2255(f)(4). Before this court,
Harris does not contend that the government caused him to delay the filing of his § 2255 motion
or that the motion was based on newly discovered facts.
-4-
No. 16-3332, Harris v. United States
Unfortunately for Harris, neither can he rely on a Supreme Court decision recognizing a
new right that has been made applicable to cases like his that are now on collateral review.
Indeed, Beckles made clear that Johnson-like relief is not available to individuals raising void-
for-vagueness challenges to sentences imposed pursuant to the residual clause contained in the
prior version of USSG § 4B1.2(a). Thus, Harris failed to file his § 2255 motion in a timely
manner.
CONCLUSION
In its decision in Beckles, the Supreme Court made clear that the residual clause found in
the prior version of USSG § 4B1.2(a) is not subject to void-for-vagueness challenges in the same
way as is the residual clause of the ACCA. Consequently, Harris cannot rely on the 2015 ruling
in Johnson to extend the one-year period for filing his § 2255 motion challenging his 60-month
prison sentence. We thus conclude that Harris’s § 2255 motion was untimely and AFFIRM the
district court’s denial of that motion.
-5-