Submitted: June 12, 2019
from United States District Court for the District of
Minnesota - Minneapolis
LOKEN, KELLY, and ERICKSON, Circuit Judges.
Ryan Raymond received a mandatory minimum sentence under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
Two years later, he filed a pro se petition under 28 U.S.C.
§ 2255 challenging the sentence. The district court
concluded that Raymond did not qualify for the ACCA mandatory
minimum but that it nonetheless was unable to grant relief
because Raymond could not show a complete miscarriage of
justice. Raymond appeals not from that order, but from an
order denying his later, counseled motion for relief under
Federal Rule of Civil Procedure 60(b)(6). Because the
district court was not precluded from granting Raymond
relief, we vacate the district court's decision and
remand the case for further proceedings.
2014, Raymond pleaded guilty to possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C), and being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The drug
count carried a 20-year maximum term of imprisonment. The
firearm count normally carried a 10-year maximum, but the
district court found that five of Raymond's prior
Minnesota convictions qualified as violent felonies under the
ACCA, which increased the minimum term of imprisonment on the
firearm count to 15 years. Raymond objected to the ACCA
enhancement. The district court overruled the objection but
encouraged Raymond to appeal the enhancement, noting that the
Supreme Court would soon "be taking up this issue"
in Johnson v. United States. It then sentenced
Raymond to concurrent 15-year terms of imprisonment on both
counts, which it explained was the mandatory minimum sentence
allowed under the ACCA and thus the sentence "that no
judge can go under." It also imposed a five-year term of
appealed, challenging the ACCA enhancement. In February 2015,
this court affirmed the sentence, explaining that
"convictions under the Minnesota statutes that Raymond
violated are violent felonies under § 924(e)."
United States v. Raymond (Raymond I), 778
F.3d 716, 717 (8th Cir. 2015) (per curiam). Four months
later, the Supreme Court issued its decision in Johnson
v. United States, 135 S.Ct. 2551 (2015), holding the
residual clause of the ACCA void for vagueness under the
2016, Raymond filed a timely pro se petition to vacate his
sentence under 28 U.S.C. § 2255, arguing that in light
of Johnson, the ACCA enhancement no longer applied
to him. The district court agreed with Raymond and the
government that three of his prior Minnesota convictions-for
third degree burglary, terroristic threats, and fleeing a
police officer-do not qualify as violent felonies after
Johnson, and therefore the ACCA enhancement does not
apply to him and he "is not subject to the statutory
mandatory minimum sentence of fifteen years." United
States v. Raymond (Raymond II), Crim. No.
14-26, 2017 WL 2483788, at *2 (D. Minn. June 8, 2017). But it
concluded that nevertheless, Raymond was not entitled to
relief because his 15-year sentence still fell within the
sentencing range recommended by the United States Sentencing
Guidelines on the drug count, so the denial of relief would
not result in "a complete miscarriage of justice."
Id. at *1, 3 (quoting United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). Raymond
subsequently filed a pro se motion for reconsideration, which
the district court denied.
in February 2018, the district court appointed the federal
defender to represent Raymond at the federal defender's
request. Raymond, through counsel, filed a motion under Rule
60(b)(6) seeking reconsideration of his
petition. The district court denied the motion,
explaining once again that because "the same sentence
could be reimposed" at resentencing, Raymond had
"failed to show there would be a complete miscarriage of
justice if he is not granted relief." United States
v. Raymond (Raymond III), Crim. No. 14-26, 2018
WL 1902724, at *5 (D. Minn. Apr. 20, 2018) (citing Sun
Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011)
(en banc)). But it granted Raymond a certificate of
appealability on the issue. Raymond filed a notice of appeal
on June 14, 2018.
Raymond's notice of appeal was filed more than 60 days
after the district court issued its initial order denying his
§ 2255 petition, our review is limited to the district
court's denial of the Rule 60(b)(6) motion; we lack
jurisdiction to review the original decision denying §
2255 relief. See Rule 11(b) of the Rules Governing
Section 2255 Proceedings; Fed. R. App. P. 4(a)(4)(A). As a
practical matter, the timing of Raymond's appeal affects
our standard of review. Rather than reviewing the merits of
the § 2255 decision de novo, we must review the district
court's denial of the Rule 60(b)(6) motion for an abuse
of discretion. Davis v. Kelley, 855 F.3d 833, 835
(8th Cir. 2017) (per curiam). "An error of law is
necessarily an abuse of discretion." City of Duluth
v. Fond du Lac Band of Superior Chippewa, 702 F.3d 1147,
1152 (8th Cir. 2013).
60(b)(6) allows for relief only in "extraordinary
circumstances." Buck v. Davis, 137 S.Ct. 759,
777-78 (2017) (quoting Gonzalez v. Crosby, 545 U.S.
524, 535 (2005)). "In determining whether extraordinary
circumstances are present, a court may consider a wide range
of factors. These may include, in an appropriate case,
'the risk of injustice to the parties' and 'the
risk of undermining the public's confidence in the
judicial process.'" Id. at 778 (quoting
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 863-64 (1988)). "'[A] good claim or
defense' is a precondition of Rule 60(b)(6) relief."
Id. at 780 (quoting 11 Charles Alan Wright et al.,
Federal Practice and Procedure ...