                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 17a0222n.06

                                               No. 16-3332


                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

TERON K. HARRIS,                                      )
                                                                                               FILED
                                                      )                                  Apr 17, 2017
        Petitioner-Appellant,                         )                             DEBORAH S. HUNT, Clerk
                                                      )
v.                                                    )
                                                            ON APPEAL FROM THE UNITED
                                                      )
                                                            STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                             )
                                                            NORTHERN DISTRICT OF OHIO
                                                      )
        Respondent-Appellee.                          )
                                                      )
                                                      )

                                         AMENDED OPINION



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 void for vagueness, the Court afforded

thousands of individuals the opportunity to reduce lengthy prison sentences imposed under that

suspect provision.1 Prior to the release of the Johnson decision, petitioner Teron Harris pleaded

guilty in federal district court to a charge of being a felon in possession of a firearm and was

sentenced in accordance with the “crime of violence” provisions of the United States Sentencing


1
  In relevant part, the residual clause of the ACCA defined a “violent felony” as any crime punishable by
imprisonment for more than one year that “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
No. 16-3332, Harris v. United States


Guidelines then in effect—provisions that tracked the language of the residual clause of the

ACCA.2 See USSG §§ 2K2.1(a)(2) and 4B1.2(a) (2013).3

        Thus, in the aftermath of Johnson, Harris filed a motion under 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, below-Guidelines-range prison sentence, and Harris appealed that

determination to this court. Given the pendency of a case before the Supreme Court that sought

to resolve the issue of whether the residual clause of the Guidelines, like the residual clause of

the ACCA, was subject to a void-for-vagueness challenge, we held Harris’s appeal in abeyance.

On March 6, 2017, the Court released its ruling in Beckles v. United States, 137 S. Ct. 886

(2017), holding “that the advisory Sentencing Guidelines are not subject to a vagueness

challenge under the Due Process Clause and that § 4B1.2(a)’s residual clause is not void for

vagueness.” Id. at 895. We now revisit the appeal in light of the guidance offered in Beckles and

affirm the district court’s denial of Harris’s § 2255 motion, concluding that the petitioner failed

to file the motion within the applicable one-year filing period of 28 U.S.C. § 2255(f).

                         FACTUAL AND PROCEDURAL BACKGROUND

        In January 2014, Harris pleaded guilty to a charge of possessing a firearm after having

previously been convicted on separate occasions 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

2
  At the time of Harris’s sentencing, the Guidelines defined a “crime of violence”—both for purposes of enhancing
firearms sentences under USSG § 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) (2013).
3
  Pursuant to Amendment 798 to the Guidelines, effective August 1, 2016, the Sentencing Commission deleted the
residual clause contained in USSG § 4B1.2(a)’s definition of a “crime of violence” and replaced it with language
that simply enumerates specific offenses that can be considered “crimes of violence.”

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No. 16-3332, Harris v. United States


§ 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 . . . .”

        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 the residual clause of the ACCA’s definition of a “violent felony” to be

unconstitutionally vague.    Because the ACCA’s residual clause was couched in language

identical to that defining a “crime of violence” for purposes of the Guidelines’ career-offender

provision, USSG § 4B1.1(a), and the crime-of-violence enhancement in USSG § 2K2.1(a), in

February 2016 Harris filed a pro se motion to vacate, set aside, or correct the sentence previously

imposed upon him, pursuant to 28 U.S.C. § 2255. That motion did not identify specific grounds

for relief, and 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-



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No. 16-3332, Harris v. United States


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

appealed that ruling, arguing once again that the decision in Johnson constituted a new,

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

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

violence” found in the Guidelines.

                                         DISCUSSION

       As we noted earlier, Harris did not appeal from the district court’s January 15, 2014,

entry of judgment that imposed upon him a 60-month prison sentence. 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 2016 motion was not filed within one year of the date his judgment of

conviction became final, as required by 28 U.S.C. § 2255(f)(1).

       However, a § 2255 motion also will be considered timely if it is filed within one year of

the date on which any government-created impediment to the filing is removed, 28 U.S.C.

§ 2255(f)(2), within one year of the date on which the asserted right was recognized by the

Supreme Court and made retroactively applicable to cases on collateral review, 28 U.S.C.

§ 2255(f)(3), or within one year of the date on which facts supporting the claim first could have

been discovered through the exercise of due diligence, 28 U.S.C. § 2255(f)(4). Before this court,

Harris does not contend that the government caused him to delay the filing of his § 2255 motion

or that the motion was based on newly discovered facts.



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No. 16-3332, Harris v. United States


       Unfortunately for Harris, neither can he rely on a Supreme Court decision recognizing a

new right that has been made applicable to cases like his that are now on collateral review.

Indeed, Beckles made clear that Johnson-like relief is not available to individuals raising void-

for-vagueness challenges to sentences imposed pursuant to the residual clause contained in the

prior version of USSG § 4B1.2(a). Thus, Harris failed to file his § 2255 motion in a timely

manner.

                                          CONCLUSION

       In its decision in Beckles, the Supreme Court made clear that the residual clause found in

the prior version of USSG § 4B1.2(a) is not subject to void-for-vagueness challenges in the same

way as is the residual clause of the ACCA. Consequently, Harris cannot rely on the 2015 ruling

in Johnson to extend the one-year period for filing his § 2255 motion challenging his 60-month

prison sentence. We thus conclude that Harris’s § 2255 motion was untimely and AFFIRM the

district court’s denial of that motion.




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