One year ago, Sam Jaffe and I flagged the Sixth Circuit’s decision in Raybon v. United States, which held that section 2255 motions challenging the mandatory version of the career offender Guideline are not timely even if they were filed within one year of Johnson v. United States. Johnson v. United States held unconstitutionally void for vagueness the Armed Career Criminal Act’s residual clause. The career offender Guideline is worded the same way and interpreted the same way as ACCA’s residual clause. As Sam and I noted at the time, the pre-Booker, mandatory Guidelines “functioned a lot like statutes that impose mandatory sentences,” given that courts had to sentence defendants within the Guidelines range. Sam and I also noted some other reasons to question the Sixth Circuit’s conclusion in Raybon.

Since Raybon, several courts of appeal have disagreed with the Sixth Circuit’s conclusion, and have held that section 2255 motions challenging the mandatory version of the career offender Guideline are timely if filed within one year of Johnson.

Along with several other professors who study post-conviction review and federal sentencing, I filed an amicus brief asking the Sixth Circuit to reconsider en banc the rule announced in Raybon. Here is the introduction of our brief:

This Court should grant rehearing to consider, en banc, the rule announced in Raybon v. United States, 867 F.3d 625 (6th Cir. 2017). Raybon held that post-conviction motions challenging the pre-Booker, mandatory career offender Guideline are not timely if filed within one year of Johnson v. United States, 135 S. Ct. 2551 (2015). But Raybon gave too narrow a construction to the right recognized in Johnson, and the decision would mean that prisoners can never air the claim that the mandatory career offender Guideline is unconstitutionally vague.

Here is an excerpt about why the issue in Raybon is worthy of en banc review:

The timeliness of post-conviction motions challenging the pre-Booker, mandatory career offender Guideline is a “question[] of exceptional importance” that is worthy of en banc review. Fed. R. App. P. 35(a)(2), (b)(1)(B). The issue affects a significant number of federal criminal defendants in dramatic ways. As many as 4936 individuals who were sentenced under the mandatory Guidelines remain in prison…. An estimated 1187 prisoners were sentenced under the career offender Guideline. … And 114 of those prisoners are estimated to be in the Sixth Circuit. …

There is no question that the mandatory Guidelines had a dramatic effect on those prisoners’ sentences. United States v. Booker recognized that the mandatory Guidelines “are binding on judges” and “have the force and effect of laws.” 543 U.S. 220, 234 (2005). The career offender Guideline has a particularly dramatic effect on sentences. See Leah M. Litman & Shakeer Rahman, What Lurks Below Beckles, 111 Nw. U. L. Rev. 555, 560 (2017) (“The average sentence imposed on drug offenders classified as career offenders (138.6 months) was over twice as long as the average sentence imposed on drug offenders not classified as career offenders (62 months)).”).

And here is an excerpt about why Raybon is wrong:

Petitioner’s interpretation of section 2255(f) makes better sense of the statutory language, including the word “right.” A right is broader than a holding. … To say that the “right” recognized in Johnson is merely a right not to be sentenced under ACCA’s residual clause replaces Congress’s chosen language (right) with a different, narrower term (holding). That is particularly inappropriate because, in other provisions, Congress used language in addition to the word “right” to refer to the Supreme Court’s holdings. …

Petitioner’s interpretation of section 2255(f)(3) better reflects other language in section 2255 as well. The statute of limitations runs from the date on which the Court recognized the right that is “asserted.” To “assert” means to “state positively,” or to “invoke or enforce a legal right.” Black’s Law Dictionary 139 (10^th ed. 2014). An assertion is not necessarily correct. As the Supreme Court observed in Dodd v. United States, the statute of limitations begins on the date of the ruling from which a defendant “sought to benefit,” 545 U.S. 353, 360 (2005), not the ruling from which a defendant necessarily benefited.

And one more:

Under Raybon, no petitioner can air the claim that he was sentenced under an unconstitutionally vague Guideline until a court first concludes that his claim is correct on the merits. …[T]his interpretation would mean that no petition could ever be timely. The Guidelines are no longer mandatory (and have not been since 2005). There are no cases that are still on direct review in which a court could adjudicate the lawfulness of the mandatory career offender Guideline. The only avenue to do so would be a post-conviction motion. But under Raybon, no post-conviction motion would be timely because the Supreme Court has yet to invalidate the career offender Guideline.

As readers of this blog (and anyone who follows me on Twitter) know, I am keenly interested in issues related to Johnson resentencing and the scope of federal post-conviction review. Keeping the brief to the word limit for amicus briefs in support of petitions for rehearing en banc was torture (I have much more to say about this issue than the 2600 words we were given). So be sure to check out the full brief here.

The brief is joined by a wonderful group of scholars—Doug Berman, Eric Freedman, Carissa Byrne Hessick, Shon Hopwood, Lee Kovarsky, and Eve Brensike Primus.

And we were represented by fantastic counsel, Amy Murphy of Miller Johnson (a fellow former editor in chief of the Michigan Law Review).

@LeahLitman

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