                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0661n.06

                                         No. 16-3332


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

TERON K. HARRIS,                              )
                                                                                 FILED
                                                                            Dec 08, 2016
                                              )
                                                                        DEBORAH S. HUNT, Clerk
       Petitioner-Appellant,                  )
                                              )
v.                                            )
                                                    ON APPEAL FROM THE UNITED
                                              )
                                                    STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                     )
                                                    NORTHERN DISTRICT OF OHIO
                                              )
       Respondent-Appellee.                   )
                                              )
                                              )



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 unconstitutionally vague, the Court

afforded many incarcerated individuals an opportunity to reduce lengthy prison sentences

imposed under that provision. Because petitioner Teron Harris’s pre-Johnson sentence for being

a felon in possession of a firearm also was enhanced by application of residual-clause language

identical to that found in the ACCA, Harris subsequently filed a motion pursuant to 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 prison sentence, and Harris now appeals that

determination. In recognition of pending litigation in the Supreme Court, we hold Harris’s
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Harris v. United States

appeal in abeyance and take this opportunity to explain the rationale for our course of action in

this matter.

                        FACTUAL AND PROCEDURAL BACKGROUND

        In January 2014, judgment was entered on Harris’s plea of guilty to a charge of

possessing a firearm following convictions 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

§ 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.”1

        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 unconstitutional the residual clause of the ACCA’s definition of a “violent

felony,” a clause with language identical to that defining a “crime of violence” for purposes of

the Guidelines’ career-offender provision, USSG § 4B1.1, and the crime-of-violence

enhancement in USSG § 2K2.1(a). In light of that ruling, in February 2016 Harris filed a pro se


1
  At the time of Harris’s sentencing, the Guidelines defined a “crime of violence”—both for purposes of enhancing
firearm sentences under § 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).

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Harris v. United States

motion to vacate, set aside, or correct the sentence previously imposed upon him, pursuant to

28 U.S.C. § 2255. Because that motion did not identify grounds for relief, 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-

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 now

appeals that ruling, arguing once again that the decision in Johnson announced a new,

substantive rule of law that should apply retroactively to collateral review both of sentences

imposed pursuant to the ACCA and to sentences imposed pursuant to the definition of a “crime

of violence” found in the Guidelines.

                                         DISCUSSION

       In Welch v. United States, 136 S. Ct. 1257 (2016), a decision that was issued 19 days

after the district court’s denial of Harris’s amended motion to vacate his sentence, the Supreme

Court held that Johnson did indeed announce a new, substantive rule of law that must be applied

retroactively to ACCA residual-clause cases on collateral review. Because the language of the

ACCA’s residual clause defining a “violent felony” is identical to the language of the residual

clause in the definition of a “crime of violence” found in USSG § 4B1.2(a)(2), individuals

sentenced under the career-offender provisions of the Guidelines, and under USSG § 2K2.1(a),


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Harris v. United States

understandably also sought the relief afforded ACCA defendants by the Supreme Court in

Johnson and Welch.

       Some of those individuals have received the relief they requested. For example, in

United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016), a direct appeal of a Guidelines sentence,

we held that “Johnson’s rationale applies with equal force to the Guidelines’ residual clause.”

Id. at 907. Consequently, we vacated Pawlak’s sentence in which the offense level had been

enhanced based upon application of the residual clause referenced in § 4B1.2 of the Guidelines.

Id. at 913. Similarly, because new rules of constitutional law should apply to all cases still on

direct review, see, e.g., Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly

declared constitutional rule to criminal cases pending on direct review violates basic norms of

constitutional adjudication”), we vacated at least two other sentences enhanced by findings of

prior “crimes of violence” under the residual clause of the career-offender provisions of the

Guidelines, USSG §§ 4B1.1 and 4B1.2(a)(2). See United States v. Harbin, 610 F. App’x 562

(6th Cir. 2015) (per curiam); United States v. Darden, 605 F. App’x 545 (6th Cir. 2015) (per

curiam).

       After Pawlak, challenges on direct review to sentences applying the Guidelines’ residual

clause remain easy cases. After all, in the absence of contrary guidance from the Supreme Court

or a reversal of prior circuit precedent by an en banc decision of this court, one panel may not

overrule an earlier published opinion of another panel. See, e.g., Salmi v. Sec’y of Health

& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). We must, therefore, continue to apply the

Pawlak analysis in such instances.

       Different considerations are brought to bear, however, in cases involving collateral

attacks on pre-Johnson sentences applying the Guidelines’ residual clause. Despite our holding


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Harris v. United States

in Pawlak that Johnson will apply to invalidate Guidelines’ residual-clause sentences on direct

appeals, we recognize that the Supreme Court has not yet stated specifically that the principles

set forth in Johnson also apply to challenges to the residual-clause provisions found in the

Guidelines. Nor has the Court made any such right retroactively applicable to cases on collateral

review.

          In the context of applications for authorization to file second or successive § 2255

motions, however, we have explained that only a prima facie showing of entitlement to relief is

required to proceed further with a claim. In re Watkins, 810 F.3d 375, 379 (6th Cir. 2015).

Because Pawlak has equated the residual clauses of the ACCA and the Guidelines, we have

found such a prima facie showing when a challenge is made to the constitutionality of applying

the Guidelines’ residual clause to sentence individuals as career offenders. See, e.g., In re

Patrick, 833 F.3d 584, 589 (6th Cir. 2016); In re Embry, 831 F.3d 377, 379 (6th Cir. 2016).

          Nevertheless, in each of those cases, we tempered the relief we granted with a recognition

of the fact that the Supreme Court soon will have the final say on these issues. In fact, the

Supreme Court granted certiorari in June 2016 in Beckles v. United States, 136 S. Ct. 2510

(2016) (Mem.), a case that presents, in addition to another issue not relevant to Harris’s appeal,

the questions whether the residual clause of USSG § 4B1.2(a)(2) is unconstitutional in light of

Johnson, and whether Johnson’s teachings have retroactive effect in a collateral proceeding

involving the residual clause of the Guidelines. See Brief for Petitioner Beckles at *i, Beckles v.

United States, No. 15-8544, 2016 WL 4363345 (U.S. Aug. 11, 2016); Brief for Respondent

United States at I, Beckles v. United States, No. 15-8544, 2016 WL 5116851 (U.S. Sept. 19,

2016). Consequently, in both In re Patrick and In re Embry, we granted the petitioner’s motion

to file a second or successive § 2255 petition but transferred the cases to the appropriate district


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Harris v. United States

court with directions to hold the cases in abeyance pending the Supreme Court’s decision in

Beckles. In re Patrick, 833 F.3d at 590; In re Embry, 831 F.3d at 378..

       However, relying on the principles set forth in Johnson, Welch, and Pawlak, Harris asks

for an immediate ruling on his request for resentencing because, as of the date of his notice of

appeal, the Supreme Court had not heard argument in Beckles. Although seemingly premature,

Harris’s request for prompt resolution of his § 2255 motion is based upon legitimate and serious

concerns. According to Harris, were we to conclude that his two prior convictions cannot be

considered “crimes of violence” under Johnson’s standards, his new sentencing range for his

felon-in-possession conviction would be reduced to 24-30 months. Because he already has

served at least the 30 months that would constitute the upper end of that potential new range, he

claims that he now is eligible for release from prison.

       Although we sympathize with the situation in which Harris now finds himself, were we

to accede to his request for an immediate ruling on his motion, he would not receive the relief he

envisions. As we noted earlier, Harris did not appeal from the judgment of the district court

sentencing him to 60 months in prison. 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 22, 2016, § 2255 motion

was not filed within one year of the date his judgment of conviction became final, as required by

U.S.C. § 2255(f)(1). In order to justify the fact that he waited 25 months to file his § 2255

motion, he did not allege any governmental impediment to a timely filing, see 28 U.S.C.

§ 2255(f)(2), nor claim that his motion was based on newly discovered facts. See 28 U.S.C.


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Harris v. United States

§ 2255(f)(4). Harris’s February 2016 filing still could be considered to have been filed in a

timely manner, however, if we were to conclude that the release of the Johnson decision on June

26, 2015, recognized a new, substantive right that the Supreme Court has also made retroactively

applicable to cases like Harris’s. See 28 U.S.C. § 2255(f)(3).

       At this point in time, we are reluctant to make such a determination. Indeed, the fact that

the Supreme Court has granted certiorari in Beckles expressly to decide both the applicability of

Johnson to the Guidelines’ residual clause and whether such application should be deemed

retroactive to cases on collateral review indicates that such a right was not recognized earlier and

was not held in a prior Supreme Court decision to be applicable retroactively.

                                         CONCLUSION

       Were we now to rule upon Harris’s motion to vacate his sentence, we would be forced to

dismiss the matter for failure to comply with 28 U.S.C. § 2255(f)’s one-year period for filing

such a motion. Rather than do so, only to have Harris later seek authorization to file a second or

successive § 2255 motion, we elect to hold Harris’s appeal from the denial of his § 2255 motion

in abeyance, pending the Supreme Court’s issuance of a decision in Beckles.




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