                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
_______________________________________
                                        )
UNITED STATES OF AMERICA,               )
                                        )
            v.                         )    No. 1:00-cr-00159 (RCL)
                                       )
DERREK ARRINGTON,                       )
                  Defendant.            )
                                        )
_______________________________________)

                                           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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