Submitted: May 17, 2018
from United States District Court for the District of
Nebraska - Omaha
SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Russo sought post-conviction relief in the district
court on the ground that his sentence was
imposed in violation of the Constitution. Russo was sentenced
under the United States Sentencing Guidelines when they were
mandatory. He asserts that in light of Johnson v. United
States, 135 S.Ct. 2551 (2015), the district court
violated his rights under the Due Process Clause by
sentencing him as a career offender based on the residual
clause of USSG § 4B1.2(a)(2). The district court
dismissed Russo's claim as untimely on the view that
Johnson did not recognize the right that Russo
asserts, and that Russo thus could not benefit from the
limitations period in 28 U.S.C. § 2255(f)(3). Russo
appeals, and we affirm.
2004, Russo pleaded guilty to various drug and firearm
offenses. The parties agree that the court sentenced Russo as
a career offender under USSG § 4B1.1, with a guideline
range of 646 to 711 months' imprisonment. The court
arrived at a guideline sentence of 646 months and then
reduced the term to 235 months for reasons unrelated to his
career-offender status. Russo argues that if the court had
not sentenced him as a career offender, then the guideline
range would have been lower, and his final sentence would
have been shorter.
Russo was sentenced, the Supreme Court declared the
sentencing guidelines effectively advisory. United States
v. Booker, 543 U.S. 220, 245 (2005). In 2015, the Court
in Johnson announced a new rule of constitutional
law by declaring unconstitutionally vague the so-called
"residual clause" of the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). 135 S.Ct. at 2563.
one year of Johnson, Russo moved to vacate his
sentence under 28 U.S.C. § 2255. Russo asserted that the
district court relied on the residual clause of USSG §
4B1.2(a)(2) to conclude that he was a career offender under
the guidelines. Russo argued that the residual clause in
§ 4B1.2(a)(2) was unconstitutionally vague because it
was almost identical to the ACCA's residual clause held
unconstitutional in Johnson. Thus, Russo urged, the
court should vacate his sentence because it was calculated
based on an unconstitutionally vague provision in the
Russo filed his motion, the Supreme Court held that
Johnson applies retroactively to cases on collateral
review. Welch v. United States, 136 S.Ct. 1257, 1265
(2016). In Beckles v. United States, 137 S.Ct. 886
(2017), however, the Court ruled that the residual clause of
§ 4B1.2(a)(2) in the post-Booker advisory
guidelines is not subject to a vagueness challenge.
Id. at 890. Following these decisions, Russo argued
that Johnson supported his claim because the
mandatory guidelines "fix" a defendant's
sentence like the statute in Johnson, and that the
advisory guidelines at issue in Beckles are
distinguishable because of their flexibility.
district court dismissed Russo's motion as untimely. The
court reasoned that Russo's motion was timely only if he
filed it within one year of "the date on which the right
asserted was initially recognized by the Supreme Court."
28 U.S.C. § 2255(f)(3). The court concluded that
Russo's claimed right to be sentenced without reference
to the residual clause of the mandatory guidelines required
"an extension, not an application, of the rule announced
in Johnson." The court therefore ruled that the
Supreme Court had not recognized the right that Russo
asserted, and that his motion was untimely. We review the
district court's determination de novo.
Anjulo-Lopez v. United States, 541 F.3d 814, 817
(8th Cir. 2008).
U.S.C. § 2255 provides that a federal prisoner "may
move the court which imposed [his] sentence to vacate, set
aside or correct the sentence" if the sentence "was
imposed in violation of the Constitution or laws of the
United States." Id. § 2255(a). A prisoner
typically must file a motion under § 2255 within one
year of the date on which the judgment of conviction becomes
final. Id. § 2255(f)(1). He may file at a later
date, however, if the motion comes 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." Id.
§ 2255(f)(3). Russo filed his motion more than ten years
after his conviction became final, but he contends that his
motion is timely under § 2255(f)(3) because he filed it
within one year of Johnson.
asserts a right under the Due Process Clause to be sentenced
without reference to the residual clause of §
4B1.2(a)(2) under the mandatory guidelines. Whether
Johnson restarted the one-year limitations period
turns on whether Johnson "newly
recognized" this asserted right. As we have explained,
the inquiry into whether a right is "newly
recognized" under § 2255(f)(3) tracks the analysis
used to determine "whether the Supreme Court announced a
'new rule' within the meaning of the Court's
jurisprudence governing retroactivity for cases on collateral
review." Headbird v. United States, 813 F.3d
1092, 1095 (8th Cir. 2016); see Teague v. Lane, 489
U.S. 288, 301 (1989) (plurality opinion). Thus, the
timeliness of Russo's claim depends on whether he is
asserting the right initially recognized in Johnson
or whether he is asserting a different right that would
require the creation of a second new rule. See Donnell v.
United States, 826 F.3d 1014, 1017 (8th ...