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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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In re: Matthew Charles ) No. 16-5714
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RESPONSE IN OPPOSITION
TO APPLICATION FOR AUTHORIZATION TO FILE
A SECOND OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255

The United States of America, by and through undersigned counsel, hereby

responds to Petitioner Matthew Charles’s application for authorization to file a

second or successive motion under 28 U.S.C. § 2255. The government respectfully

submits that the application should be denied or, in the alternative, held in abeyance

pending the Supreme Court’s decision in Beckles v. United States, 2016 WL

1029080 (June 27, 2016) (granting petition for writ of certiorari).

BACKGROUND

Charles was charged with numerous offenses arising from his sales of crack

cocaine to military personnel at Fort Campbell Army Base. After trial, the jury

convicted him of conspiring to distribute crack cocaine in violation of 21 U.S.C.

§ 846 (Count 1); making false statements in relation to the acquisition of a firearm

in violation of 18 U.S.C. § 922(a)(6) (Counts 2 & 3); unlawfully distributing crack

cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts 4 & 7); and unlawfully

possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 5

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& 8). See generally United States v. Charles, 138 F.3d 257, 260-62 (6th Cir. 1998)

(“Charles I”) (summarizing offense conduct and charges).

In advance of sentencing, the Probation Office prepared a Presentence

Investigation Report (“PSR”). The PSR first found that Charles’s base offense level

for the drug-trafficking offenses—Counts One, Four, and Seven—was 34, because

he was responsible for 216 grams of crack cocaine. (R. 91, PSR, ¶ 42 (citing

U.S.S.G. § 2D1.1(c).) The PSR added two levels for possessing a firearm under

U.S.S.G. § 2D1.1(b)(1), and two more levels for obstruction of justice, under

U.S.S.G. § 3C1.1, bringing the defendant’s total offense level to 38. (Id. ¶¶ 43-52.)

The PSR also found that his base offense level under the gun counts—Counts Two,

Three, Five, and Eight—was 24, which (even after accounting for grouping rules)

had no effect on his overall offense level or guideline range. (Id. ¶ 54.)

The PSR next considered the “Chapter Four Enhancements.” It first noted that

“[t]he defendant appears to meet the criteria for both career offender and armed

career criminal as defined by the guidelines” (id. ¶ 64 (emphasis added)), but then

went on to conclude explicitly that Charles “is a career criminal” under § 4B1.1. (Id.

¶ 65.) The PSR did not specifically state what offense level would apply based solely

on the finding that Charles was a career offender, but explained that this was because

the “otherwise applicable” offense level under Chapters 2 and 3 was higher.

Nevertheless, it is clear that Charles’s offense level under the career-offender

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guidelines was 37, because he was convicted of two offenses—Counts One and

Seven—with a statutory maximum of life imprisonment. See U.S.S.G.

§ 4B1.1(b)(1). The PSR also noted that if Charles was an armed career criminal

under § 4B1.4 and 18 U.S.C. § 924(e), his offense level would still be 38. (Id. ¶¶ 66-

67.)

The next section of the PSR catalogued Charles’s extensive criminal history.

This history included, among other things, the following adult felony convictions:

three convictions for breaking and entering into a dwelling; one conviction for first-

degree kidnapping; one conviction for second-degree kidnapping; one conviction for

assault with a deadly weapon inflicting serious injury; and one conviction for

possessing a weapon of mass destruction (here, a sawed-off shotgun). (Id. ¶¶ 73-78.)

One sequence of events in Charles’s criminal history was particularly heinous: In

1988, he kidnapped one woman on two consecutive days “for the purpose of

terrorizing her”; he was then arrested and questioned, but managed to escape from

the police interview room; after escaping, he attempted to steal a car, ultimately

shooting the victim of the carjacking in the head with a sawed-off shotgun. (Id. ¶¶

76-77.)

The PSR noted that Charles was sentenced for the three breaking-and-entering

convictions on the same day, but because they were all “crimes of violence” under

§ 4B1.2, and because they stemmed from three separate burglaries, they received

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two additional criminal history points. (Id. ¶ 82.) The PSR likewise noted that

Charles was sentenced for the two kidnapping convictions on the same day, but

because both of those convictions also qualified as “crimes of violence,” they

received an additional criminal history point. (Id. ¶ 83.) Thus, the PSR explicitly

identified five former felony convictions that qualified as “crimes of violence.”

The PSR found that Charles’s criminal history points totaled 17, placing him

in Criminal History Category VI. (Id. ¶ 84.) When combined with an offense level

of 38, that produced a guideline range of 360-life. (Id. ¶ 110.)

Charles submitted three objections to the PSR, but none involved his criminal

history or the finding that he was both a career offender and an armed career

criminal. Instead, he objected to the applicable drug quantity, the obstruction-of-

justice enhancement, and the firearm enhancement. (Id. at Addendum.)

At the sentencing hearing, Charles again raised no objection to his criminal

history or to the PSR’s finding that he was both a career offender and an armed

career criminal. To the contrary, when the government sought to introduce, as a

sentencing exhibit, the indictments and judgments from Charles’s prior convictions,

defense counsel objected, saying, “[T]he government is introducing these

indictments and judgments, for example, that are not objected to, not even mentioned

in our objections in this presentence investigation report. . . . I mean we have

conceded that he’s a level six, no question about it, they have made their case on the

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armed career criminal . . . .” (R. 96, Sent. Tr., at PageID#: 239-40.) The court

overruled the objection and the government introduced the indictments and

judgments, explaining that the purpose was “to make an appellate record if they want

to argue later on that it was not in an Armed Career Criminal Act case.” (Id. at

PageID #: 240-44.)

After hearing evidence and argument from the parties, the district court

overruled Charles’s three objections to the PSR, “adopt[ed] the factual findings in

the presentence report,” found that “the total offense level is 38,” and found that “the

Armed Career Criminal Act . . . is applicable to counts five and eight.” (Id. at PageID

#: 278.) The court found that the guideline range was 360-life and ultimately

imposed a sentence of 420 months’ imprisonment. (Id. at PageID #: 278-81.) In

doing so, the court observed that “[t]his defendant has a particularly violent history”

and “has demonstrated by his actions that he’s a danger to society and simply should

be off the streets.” (Id. at PageID #: 283.)

After sentencing, Charles filed a direct appeal, raising various issues related

to guilt and sentencing. See Charles I, 138 F.3d at 259-60. With respect to

sentencing, Charles argued “that the district court incorrectly calculated the amount

of drugs at issue and therefore sentenced Charles to the wrong level in imposing a

420 month sentence.” Id. at 267. In rejecting this argument, this Court concluded

that any error in calculating the drug amount was harmless, because even if the drug

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quantity asserted by Charles were correct, his guideline range would remain

unchanged, given that he was found to be a career offender with an offense level of

37. Id. at 268. As this Court explained, “The district court found that Charles met all

three criteria [under § 4B1.1] and qualified as a career offender as a result of his

multiple prior felony convictions. Because the sentence range would be identical

even if this court adopted Charles’s assertions on the proper amount of drugs he sold,

any calculation errors on the part of the district judge would constitute harmless

error.” Id.

Charles then engaged in several rounds of post-conviction litigation, including

a § 2255 motion, which the district court denied; the denial of a request for a

certificate of appealability; an unsuccessful request for permission to file a second

or successive § 2255 motion; and a motion for relief under Fed. R. Civ. P. 60(b),

which was denied by the district court and affirmed on appeal. See United States v.

Charles, 37 F. App’x 758, 758 (6th Cir. 2002) (“Charles II”) (recounting procedural

history). He later filed two more requests for permission to file second or successive

§ 2255 motions, which this Court also denied. (R. 174, Order; R. 179, Order.)

Charles later filed a number of motions for a reduced sentence under 18 U.S.C.

§ 3582(c)(2). One of those motions was granted, and his sentence was reduced from

420 months to 292 months. The government filed an appeal (6th Cir. Case No. 15-

6074), arguing that Charles was legally ineligible for a reduced sentence because he

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had been found to be a career offender at sentencing, and therefore his applicable

guideline range was unaffected by the amendments to the guidelines. That appeal

was fully briefed as of April 11, 2016, but it has not yet been scheduled for

submission to a panel.

While that case is pending, Charles has also filed the instant application for

authorization to file a second or successive § 2255, arguing that he is no longer a

career offender in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

DISCUSSSION

As an initial matter, it should be noted that if Charles prevails on appeal in

Case No. 15-6074, the issue that he seeks to raise in his proposed second or

successive § 2255 would seem to be moot. Therefore, it would appear appropriate

to hold the instant motion in abeyance at least until Charles’s other case on appeal is

resolved. Once the Court addresses the merits of the instant motion, it should deny

Charles authorization to file a second or successive § 2255, for two independently

sufficient reasons. First, the Supreme Court has not made the rule of Johnson

retroactive to claims arising under the guidelines, and therefore the requirement or

28 U.S.C. § 2255(h)(1) has not been met. See Tyler v. Cain, 533 U.S. 656, 663

(2001). Second, even if Johnson did apply retroactively to cases under the

guidelines, Charles would still qualify as a career offender, based on his numerous

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convictions for burglary, aggravated assault, kidnapping, and possession of a sawed-

off shotgun.

1. The Supreme Court has not made the rule of Johnson retroactive to
claims under the Sentencing Guidelines.

While Johnson created a substantive rule of constitutional law for defendants

convicted under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and that ruling

has been made retroactive to Armed Career Criminal Act cases on collateral review,

Welch v. United States, 136 S. Ct. 1257 (2016), the rule of Johnson does not apply

retroactively to cases arising under U.S.S.G. § 4B1.2. This is because the sentencing

range for a defendant convicted of violating 18 U.S.C. § 922(g) shifts from 0-10

years to 15-life upon a finding that he is an armed career criminal. If a defendant is

no longer an armed career criminal absent the residual clause, then his sentence on

that count is necessarily illegal. By contrast, a defendant in Charles’s position cannot

say that he received an illegal sentence. The most he can say is that he may have

received a higher offense level than he otherwise would have, which resulted in a

higher sentencing range, which the judge considered in the course of imposing a

sentence within the range that was “mandate[d] or authorize[d]” by the statute of

conviction. See Welch, 136 S. Ct. at 1265. Any purported error in calculating that

offense level would not arise to the sort of error that is cognizable on collateral

review. See, e.g., Hawkins v. United States, 724 F.3d 915 (7th Cir. 2013) (Posner,

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J.) (explaining that although postconviction relief may be proper when the

sentencing judge imposed “a sentence that he had no authority to impose, . . . it

doesn’t follow that postconviction relief is proper just because the judge, though he

could lawfully have imposed the sentence that he did impose, might have imposed a

lighter sentence had he calculated the applicable guidelines range correctly.”)

Indeed, in this case, it is undisputed that the sentencing court did not rely on

Charles’s status as a career offender when sentencing him, since his offense level

under the drug guidelines was higher than the offense level under the career offender

guidelines.

In any event, regardless of whether Johnson applies retroactively to cases

under the guidelines, it is clear that the Supreme Court has not “made” Johnson

retroactive to cases under the guidelines. This Court recently held as much in an

unpublished order. See In re Lewis, Case No. 15-3915 (6th Cir. June 29, 2016). As

the Court explained, “Johnson announced a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable, see In re Watkins, 810 F.3d 375, 383-84 (6th Cir. 2015)—but only with

regard to individuals sentenced under the ACCA.” Id. By contrast, “there is no

Supreme Court precedent making such ‘a new rule of constitutional law . . .

retroactive to cases on collateral review’” that raise claims under the sentencing

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guidelines. Id. Accordingly, Charles has “not made the requisite prima facie

showing.” Id.

Other Circuits have reached similar conclusions. See Donnell v. United States,

-- F.3d --, 2016 WL 3383831 (8th Cir. June 20, 2016) (denying authorization to file

a second or successive § 2255 motion raising a Johnson claim under the guidelines

and explaining that “[i]t is not enough for the successive motion to cite a new rule

that merely serves as a predicate for urging adoption of another new rule that would

recognize the right asserted by the movant”); In re Arnick, -- F.3d --, 2016 WL

3383487 (5th Cir. June 17, 2016) (en banc) (denying permission to file a second or

successive § 2255 motion raising a Johnson claim under the guidelines, and

explaining that “even if Johnson does implicate Section 4B1.2(a)(2), the Supreme

Court has not addressed whether this arguably new rule of criminal procedure

applies retroactively to cases on collateral review. Arnick has therefore not shown

that he is entitled to authorization to proceed based on Johnson.”).

Indeed, just this week the Supreme Court granted certiorari to decide (1)

whether Johnson applies to the residual clause of the guidelines at all, and (2) if so,

whether it also applies retroactively to cases on collateral review. That the Court

granted certiorari to address these issues—rather than issuing a summary reversal—

strongly suggests that the Court has not already “made” Johnson retroactive to cases

under the guidelines.

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In sum, because the Supreme Court has not made the rule of Johnson

retroactive to cases under the guidelines, this Court should deny authorization to file

a second or successive § 2255 claim.

2. Even if Johnson applied retroactively, Charles would still be a career

offender.

Even if Johnson did apply retroactively to cases under the guidelines, Charles

would still qualify as a career offender. His extensive criminal history includes the

following convictions:

 Three counts of breaking and entering residences with intent to commit

larceny, under North Carolina law (R. 91, PSR, ¶ 74). See United States v.
Cummings, 444 F. App’x 693 (4th Cir. 2011) (per curiam) (holding that
conviction under North Carolina’s breaking-and-entering statute qualifies as
a crime of violence under the guidelines);

 Assault with a deadly weapon inflicting serious injury under North Carolina
law (R. 91, PSR, ¶ 77). See United States v. Orozco, 579 F. App’x 172 (4th
Cir. 2014) (holding that North Carolina conviction for assault with a deadly
weapon inflicting serious bodily injury qualifies as a crime of violence under
the guidelines); United States v. Rodriguez, 664 F.3d 1032 (6th Cir. 2011)
(holding that a state assault conviction qualifies as an aggravated assault, and
therefore a crime of violence under the enumerated-offense clause of the
guidelines, if it has the same elements as aggravated assault under the Model
Penal Code, which includes “purposely or knowingly caus[ing] bodily injury
to another with a deadly weapon”); Braden v. United States, 817 F.3d 926,
932-934 (6th Cir. 2016) (holding that an aggravated assault conviction
qualifies as a violent felony under the use-of-force clause of the ACCA where
the prior conviction was for intentionally or knowingly committing an assault
while using or displaying a deadly weapon); See United States v. Cooper, 739
F.3d 873, 882 (6th Cir. 2014) (holding that an intentional aggravated assault
conviction qualifies as an enumerated offense under U.S.S.G. § 4B1.2);

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 First-degree kidnapping under North Carolina law (R. 91, PSR, ¶ 76). See
United States v. Flores-Granados, 783 F.3d 487 (4th Cir. 2015) (holding that
conviction under North Carolina’s kidnapping statute qualifies as a crime of
violence under the guidelines); United States v. Soto-Sanchez, 623 F.3d 317
(6th Cir. 2010) (holding that a state conviction for kidnapping qualifies as a
crime of violence under the guidelines if it requires “restraint plus the presence
of some aggravating factor,” and listing North Carolina’s kidnapping statute
as an example of a state law requiring restraint plus a specific, nefarious
purpose); and

 Possession of a weapon of mass destruction under North Carolina law—here,

a sawed-off shotgun (R. ¶ 77.) See United States v. Hawkins, 554 F.3d 615,
618 (6th Cir. 2009) (holding that possession of a sawed-off shotgun is an
enumerated offense under U.S.S.G § 4B1.2.

Charles argues in part that the convictions for aggravated assault, kidnapping,

and (presumably) possession of a sawed-off shotgun cannot be enumerated offenses,

because they were listed in the application notes to the guidelines, and (according to

Charles) the invalidation of the residual clause also invalidates any application notes

that could be said to have been interpreting the residual clause. This Court recently

rejected that argument. See United States v. Stephens, -- F. App’x --, 2016 WL

3194689, at *2 (“Johnson left intact the guidelines’ career-offender application notes

. . . .”).

And in any event, it makes little sense to use the vagueness doctrine, which

was the basis of Johnson, to invalidate a specific list of enumerated offenses.

Johnson explained that the vaguely worded residual clause of the ACCA did not

provide a person previously convicted of, say, kidnapping or possessing a sawed-off

shotgun, with “fair notice” that those prior convictions would subject him to the
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enhanced penalties of the ACCA. Johnson, 135 S. Ct. at 2556-57. But the same

cannot be said of U.S.S.G. § 4B1.2, which specifically put people on notice that if

they committed a crime of violence after two or more convictions for aggravated

assault, kidnapping, or possessing a sawed-off shotgun, they would be found to be a

career offender. Thus, the invalidation of the residual clause did not invalidate the

enumerated offenses listed in the application notes. The fact that kidnapping,

aggravated assault, and possession of a sawed-off shotgun will still be enumerated

offenses even after Aug. 1, 2016, when the Commission’s “Johnson Fix” takes

effect, strongly indicates that Johnson does not invalidate these enumerated offenses.

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Conclusion

For the reasons set forth above, the government submits that the Court should

deny Charles authorization to file a second or successive § 2255 motion. In the

alternative, the Court should at least hold the application in abeyance pending the

Supreme Court’s decision in Beckles.

Respectfully submitted,

DAVID RIVERA
United States Attorney for the
Middle District of Tennessee

s/ Cecil W. VanDevender
Cecil W. VanDevender
Assistant United States Attorney
110 9th Avenue South, Suite A-961
Nashville, Tennessee 37203
615-736-5151

Certificate of Service

I hereby certify that on June 29, 2016, a true and exact copy of the foregoing
document was sent via the Court’s Electronic Filing System to:

Mariah Wooten
Federal Public Defender’s Office
810 Broadway
Suite 200
Nashville, TN 37203

s/ Cecil W. VanDevender
Cecil W. VanDevender
Assistant United States Attorney

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