Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s 2255 petition and is not required to hold the petition in abeyance until the Supreme Court decides Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016).
The Circuit’s initial opinion was filed about two weeks ago, on July 14, 2016. It granted Blow’s motion to file a Second or Successive 2255 petition. But it “instructed” the district court to “hold Blow’s §2255 motion in abeyance pending the outcome of Beckles.”
In Beckles, the Supreme Court granted certiorari to decide whether Johnson v. United States, 135 S.Ct. 2551 (2015) — which declared that the “residual clause” of the Armed Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)(2)(B)(ii) ) was unconstitutionally vague — also applies to the essentially identically worded residual clause in Sentencing Guidelines § 4B1.2(a)(2). And Beckles will consider whether Johnson applies retroactively to § 2255 petitions challenging Career Offender sentences.
Blow wants to challenge his Career Offender designation (under the Sentencing Guidelines) by arguing that Johnson also invalidates the residual clause in the Guidelines definition of “crime of violence.” He argues that one of his two prior convictions no longer qualifies as a crime of violence after Johnson. So his Guidelines range should not have been enhanced under the Career Offender Guideline. Having made a prior § 2255 motion, he petitioned the Circuit for permission to file a Second or Successive § 2255 motion [as required by 28 U.S.C. § 2255(h)].
In its original July 14, 2016 Opinion, the Circuit granted Blow’s motion for permission to file another § 2255 petition to the district court. But the Opinion concluded with the statement: “However, because the Supreme Court will likely decide in Beckles whether Johnson applies retroactively to the Guidelines, the district court is instructed to hold Blow’s § 2255 motion in abeyance pending the outcome of Beckles.”
Today’s Amended Opinion makes the preceding “instruct[ion]” the penultimate statement of the Opinion, and adds the following: “The district court is free to consider termination of the stay, on motion or sua sponte.” Op. at 7 (emphasis supplied).
The take away: The Circuit apparently has recognized that many people sentenced under the Career Offender Guideline may be nearing the conclusion of sentences, or they may have served past the term of any non-Career Offender sentencing range. These people will be irreparably harmed by a stay if Beckles is decided favorably to defendants. It is also worth considering that the lowering of the benchmark Guidelines range would tend to increase the prospect for a downward variance from that lower benchmark. See e.g., Peugh v. United States, 133 S. Ct. 2072, 2083, 2086 (2013)(the Guidelines range generally exerts “controlling influence on the sentence that the court will impose”); and Molina-Martinez v. United States, 136 S.Ct. 1338(2016). So if a court determines that under a non-Career Offender range — even if the non-Career Offender range would not yield a range that would provide for the near-term release of someone — it would vary downward to a sentence that would grant the person release in a few months, that would also argue for not delaying the 2255 proceeding until Beckles is decided.