Johnson Is Retroactive For Career Offender Determination, But Still Must Wait For Beckles

The Sixth Circuit will authorize second or successive § 2255 petitions to address Johnson issues related to application of the career offender enhancement. In In re: Antonio D. Patrick, the Sixth Circuit found that Johnson announced a substantive change that applied retroactively and on collateral review—a holding permitting successive petitions.

The Government argued that the petition should not be permitted because Johnson is procedural. The Court rejected that argument as contrary to the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“under this framework, the rule announced in Johnson is substantive.”). As explained in Welch, Johnson changed “the range of conduct or the class of persons” punishable under the ACCA—a substantive change. Under Pawlak, the Sixth Circuit found that the same reasoning applied to the career offender residual clause.

The Court also rejected the Government’s argument that Johnson must be procedural in regard to the Guidelines because the Guidelines themselves are procedural. Finding that sentencing courts lack discretion to forego reference to the Guidelines, the Court concluded: “that the Guidelines are not mandatory is a distinction without a difference.” In re Patrick (quoting Pawlak, 822 F.3d at 907).

In reaching this result, the Sixth Circuit joined the Second, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits (though Judge Sutton previously asserted that the Fifth Circuit has rejected arguments akin to Patrick’s in In Re: Alford D. Embry). Significantly, consistent with In Re: Alford D. Embry (discussed in this blog’s July 29 post), the Court found that further consideration of Patrick’s petition must be held in abeyance pending the Supreme Court’s decision in Beckles v. U.S. (where the Supreme Court granted certiorari to review the Eleventh Circuit’s decision that Johnson is inapplicable to the Sentencing Guidelines). Hence, Patrick and similarly situated persons must watch for the Supreme Court decision in Beckles (the Government’s brief is currently due September 19, 2016).