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United States v. Lowe

United States District Court, D. Colorado

March 2, 2017

1. SCOTT LOWE, Defendant.


          PHILIP A. BRIMMER United States District Judge.

         This matter comes before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Docket No. 57], which petitioner Scott Lowe filed pro se. On September 23, 2016, the Office of the Federal Public Defender entered an appearance on behalf of petitioner [Docket No. 66]. Mr. Lowe challenges his sentence in this case pursuant to the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015).

         On February 11, 2014, Mr. Lowe pled guilty to one count of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). The presentence investigation report [Docket No. 38] determined that Mr. Lowe had a base offense level of 26 under U.S.S.G. § 2K2.1(a)(1) based on two previous felony convictions for crimes of violence: Burglary of an Occupied Dwelling from Hillsborough County, Florida and Conspiracy to Commit Felony Menacing from Jefferson County, Colorado.[1] The Probation Department determined that the defendant was in Criminal History Category IV. As a result, the guideline range was 100 to 120 months imprisonment. Mr. Lowe did not object to the calculation of his guideline range or to the Probation Department's conclusion that he had two convictions for crimes of violence. The Court found that the guideline range was correct. The government moved to reduce his sentence by 60% of the guideline range as calculated by the Court, making his guideline range for purposes of sentencing 40 to 48 months imprisonment. The Court granted the government's motion and sentenced Mr. Lowe to 48 months imprisonment on August 22, 2014. Mr. Lowe did not appeal the sentence.

         Mr. Lowe claims that, given the invalidation of the residual clause in § 4B1.2, neither his Florida burglary conviction nor his Colorado conspiracy to commit felony menacing conviction can be considered a “crime of violence” and, as a result, his total offense level under U.S.S.G. § 2K2.1(a)(1) should have been six levels less. Docket No. 68 at 2. With a criminal history category of IV, Mr. Lowe maintains that his guideline range before the government's motion was taken into account should have been 57 to 71 months imprisonment.

         The United States opposes Mr. Lowe's § 2255 petition on both procedural and substantive grounds.

         A. Procedural Defenses

         1. Timeliness

         The United States argues that Mr. Lowe's motion is untimely pursuant to Rule 5 of the Rules Governing Section 2255 Proceedings, which requires that such motions usually be filed within one year of the date on which the judgment of conviction entered. 28 U.S.C. § 2255(f)(1). Judgment entered on August 26, 2014. Docket No. 48. Mr. Lowe filed his motion on May 5, 2016, over one year after the date of the judgment. The government also argues that, since Johnson has not been made retroactively applicable to cases on collateral review, 28 U.S.C. § 2255(f)(3) does not apply.

         Section 2255(f)(3) states that a motion under § 2255 may also be timely if filed within one year of “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.” Mr. Lowe argues that, since his motion is based on Johnson and because Johnson was decided on June 26, 2015, his motion is timely because it was filed within one year of Johnson. Docket No. 68 at 3. In support of his argument, Mr. Lowe argues that the Tenth Circuit has already extended the principle of Johnson to the identically worded residual clause of U.S.S.G. § 4B1.2. See United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015). And, despite the fact that neither the Tenth Circuit nor the Supreme Court has ruled on whether the principle of Johnson applies retroactively on collateral review to sentences determined pursuant to § 4B1.2, Mr. Lowe argues that the retroactivity analysis of Welch v. United States, 136 S.Ct. 1257 (2016), should extend to § 4B1.2. Docket No. 68 at 6-7.

         The Court agrees with Mr. Lowe that the rule of Johnson is retroactively applicable to his case. As a general matter, under Teague v. Lane, 489 U.S. 288, 310 (1989), “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” There are two recognized exceptions. New “watershed rules of criminal procedure, ” which are procedural rules “implicating the fundamental fairness and accuracy of the criminal proceeding, ” Saffle v Parks, 494 U.S. 484, 495 (1990), and new “substantive” rules generally apply retroactively. Teague, 489 U.S. at 307, 311; see generally Welch, 136 S.Ct. at 1264. A rule is substantive rather than procedural “if it alters the range of conduct or the class of persons that the law punishes.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). Procedural rules, on the other hand, “regulate only the manner of determining the defendant's culpability.” Id. (emphasis in original). In Welch, the Supreme Court determined that the rule of Johnson was substantive and not procedural, noting that “[b]y striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes.'” 136 S.Ct. at 1265 (quoting Schriro, 542 U.S. at 353). The Court concludes that invalidating the residual clause in § 4B1.2 had a comparable effect. Cf. In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016) (“striking down the residual clause embodied in [18 U.S.C.] § 16(b) . . . would “alter[ ] the range of conduct or the class of persons that the [Sentencing Guidelines] punishes”). Although the United States argues that “an erroneous application of the guidelines does not alter the permissible statutory sentencing range” and “does not authorize an otherwise-inapplicable mandatory minimum or produce a higher-than-otherwise-applicable statutory maximum, as in true with Johnson error under the ACCA, ” Docket No. 63 at 7, that rationale was undercut by Madrid. The court there held that, not only were the Guidelines the beginning of all sentencing determinations, but noted that the Supreme Court has held that the Guidelines are subject to constitutional challenge “notwithstanding the fact that sentencing courts possess discretion to deviate from the recommended sentencing range.” 805 F.3d at 1211, quoting Peugh v. United States, 133 S.Ct. 2072, 2082 (2013). The Court finds that Mr. Lowe's motion is timely pursuant to § 2255(f)(3).

         2. Mr. Lowe's Failure to File a Direct Appeal

         The United States argues that, because Mr. Lowe failed to file a direct appeal challenging the enhancement of his sentence due to his convictions for “crimes of violence, ” he is barred from raising the issue in a § 2255 motion unless he can show (1) cause excusing his procedural default and actual prejudice resulting from the errors of which he complains or (2) that a fundamental miscarriage of justice will occur if his claim is not addressed. See Docket No. 63 (citing United States v. McGaughy, 670 F.3d 1149, 1159 (10th Cir. 2012)).

         The Court finds that Mr. Lowe has shown cause under the first exception. Before Johnson, any argument by Mr. Lowe that the residual clause of § 4B1.2 was unconstitutional would have been precluded by Sykes v. United States, 564 U.S. 1, 15 (2011), which upheld the constitutionality of such language. Under these circumstances, a defendant's failure to make the claim on appeal is “sufficiently excusable to satisfy the cause requirement.” Reed v. Ross, 468 U.S. 1, 17 (1984). Second, the Court finds that Mr. Lowe has satisfied the “actual prejudice” requirement. Prejudice is shown when there is a reasonable probability that the result of the sentencing would have been different without the error to which the petitioner objected. Strickler v. Greene, 527 U.S. 263, 289 (1999). As noted in Molina-Martinez v. United States, 578 U.S. ___, 136 S.Ct. 1338, 1345 (2016), “[w]hen a defendant is sentenced under an incorrect Guidelines range - whether or not the defendant's ultimate sentence falls within the correct range - the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” The United States does not argue otherwise.

         B. ...

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