Mandatory Guideline Sentences Subject to Johnson Challenge

Several important decisions have been handed down over the past several weeks involving challenges to mandatory guideline sentences. In 2005 the Supreme Court decided United States v. Booker, which rendered the Sentencing Guidelines advisory instead of mandatory.

If you or a loved one were sentenced before Booker, what I am about to discuss is for you. Unfortunately, post Booker sentences are not affected by the Supreme Court’s “2015 Johnson” decision because the Court subsequently held in Beckles v. United States that the ADVISORY guidelines are not subject to vagueness challenge.


The First Circuit in Moore v. United States, No. 16-1612, granted a federal prisoner authorization to file a “second” 2255 motion in light of 2015 Johnson. 2015 Johnson declared the "residual clause" of the Armed Career Criminal Act unconstitutionally vague.

Once a federal prisoner has filed a 2255 motion, authorization to file a second 2255 motion must ordinarily be obtained from the court of appeals before a second 2255 will be considered.

Moore sought authorization to file his second 2255 motion in May 2016. This was shortly before the one year deadline to file based on 2015 Johnson claims expired in late June 2016.

In considering Moore’s motion, the Court utilized the following test:

The court of appeals should first consider whether, as a legal matter, the petitioner's motion relies on a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court and that was previously unavailable. If it is clear that one of these questions must be answered in the negative ... the court may deny certification on that ground. But, if the question is close ... the court may leave even . . . a purely legal issue for the district court to resolve. The court of appeals should then consider the mixed question of whether the petitioner's identified constitutional rule . . . appl[ies] to the petitioner's situation. If it is clear as a matter of law, and without the need to consider contested evidence that it does not, the court should deny the certification. Otherwise, the court should grant it.

The Government opposed authorization primarily on the basis that 2015 Johnson did not establish a new rule of constitutional law as applied to mandatory Guideline era sentences. The way the Government sees it, 2015 Johnson is limited to the Armed Career Criminal Act. Moore, on the other hand, argued that 2015 Johnson established a broad rule with potential for application to things aside from the ACCA, including pre-Booker sentences. The First Circuit held that Moore had the better argument.

There is a split on this issue, though. For instance, the Fourth and Sixth Circuits have held that federal prisoners challenging pre-Booker mandatory guideline sentences in light of 2015 Johnson cannot file timely 2255 motions. According to these courts, 28 U.S.C. 2255(f)(3) is not satisfied for this kind of challenge because 2015 Johnson did not recognize a new “right” as applied to mandatory era Guideline sentences. Instead, the “right” in 2015 Johnson only affects sentences under the ACCA. See, United States v. Brown, No 16-7056 (4th Cir. 2017); Raybon v. United States, No. 16-2522 (6th Cir. 2017). This effectively closes the door to 2015 challenges to pre-Booker sentences in the Fourth and Sixth Circuits.

In addition, the Eleventh Circuit (famous for shutting the courthouse doors to federal prisoners) held in In re Griffin that the mandatory guidelines “did not alter the statutory boundaries for sentences set by Congress for the crime.” In re Griffin, 823 F.3d 1350, 1355 (11th Cir. 2016). Thus, I think it is highly likely the Eleventh Circuit will join the Fourth and Sixth in holding that federal prisoners cannot challenge pre-Booker sentences in light of 2015 Johnson.

Ultimately, the First Circuit granted authorization for Moore to file his second 2255 motion. But here is a big take away, if you were sentenced in the First Circuit before Booker and did not file by July 26, 2016 for (1) authorization to file a second 2255 (assuming you filed one before) or (2) file a 2255 motion raising 2015 Johnson in the district court ... any such motion would likely be untimely now.


The Third Circuit in In re Hoffner, No. 15-2883 also granted authorization to file a second 2255 motion challenging a pre-Booker sentence in light of 2015 Johnson. Hoffner filed his request for authorization with the Third Circuit in 2015.

The Government opposed authorization arguing that 2015 Johnson is not “the rule on which the claim relies.”

The Third Circuit began its analysis by holding that 2255(h)(2) “supports a permissive and flexible approach to whether a petitioner ‘relies’ on a qualifying new rule.” Citing to a dissenting opinion from the Fifth Circuit, the court stated:

a motion “relies” on a qualifying new rule where the rule “substantiates the movant’s claim.” This is so even if the rule does not “conclusively decide” the claim or if the petitioner needs a “non-frivolous extension of a qualifying rule.” Section 2255(h)(2) does not require that qualifying new rule be “the movant’s winning rule,” but “only that the movant rely on such a rule.” It is for the district court to evaluate the merits of the second or successive habeas petition in the first instance. This includes “whether the invoked new rule should ultimately be extended in the way that the movant proposes” or whether his “reliance is misplaced.”

The Government urged the court to adopt the Eighth Circuit’s test in Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016) for deciding whether 2015 Johnson applies to pre-Booker sentences. Donnell held that authorization could not be granted because Donnell was seeking an extension of 2015 Johnson to pre-Booker sentences. The Third Circuit rejected Donnell.

“The Eighth Circuit’s approach is inconsistent with the text of Section 2255(h)(2), which contains only ‘three prerequisites,’ and no requirement that we scrutinize a motion to see if it would produce a ‘second new rule,’” the Court held. Accordingly, authorization to file a second or successive 2255 motion was granted.


If you filed a 2255 motion or sought authorization to file a successive 2255 in the First or Third Circuits challenging a pre-Booker sentence in light of 2015 Johnson, your claims should get their day in court. But you must have filed for relief by June 26, 2016; otherwise, your motion will be untimely. And I doubt the Sessions DOJ is going to waive the statute of limitations defense.

If you are in the Fourth, Sixth, or Eighth Circuits you cannot file a timely 2255 motion (first or second) challenging a pre-Booker sentence based on 2015 Johnson. BUT if the Supreme Court subsequently holds that 2015 Johnson applies to pre-Booker mandatory guideline sentences, people in the Fourth, Sixth, and Eighth Circuits should THEN be able to file for authorization to file a first or second 2255 based on that new Supreme Court decision. A one year deadline from the date of that Supreme Court decision would apply. And I fully expect the Supreme Court, at some point, to decide whether 2015 Johnson applies to pre-Booker mandatory guideline sentences.

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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