Opinion
19-6089
02-09-2023
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS FLOYD LITTLEJOHN, Defendant-Appellant.
Anthony Martinez, Federal Public Defender, Charlotte, North Carolina, Joshua B. Carpenter, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
UNPUBLISHED
Submitted: November 30, 2022
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:90-cr-00231-MR-WCM-5; 1:16-cv-00209-MR)
ON BRIEF:
Anthony Martinez, Federal Public Defender, Charlotte, North Carolina, Joshua B. Carpenter, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.
Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before DIAZ and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM.
Thomas Floyd Littlejohn appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Based on United States v. Brown, 868 F.3d 297 (4th Cir. 2017), the district court denied Littlejohn's motion as untimely under § 2255(f). Because we agree that Brown remains binding, we affirm.
I.
In 1991, a jury found Littlejohn guilty of multiple drug-trafficking charges. Based on Littlejohn's prior convictions, the sentencing court imposed a career-offender enhancement under the residual clause of the U.S. Sentencing Guidelines, which applied to predicate crimes that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1)(ii) (1991). With the enhancement, the Guidelines set a range of 360 months to life imprisonment. The district court sentenced Littlejohn to 360 months in prison. At the time, the Guidelines were mandatory because the Supreme Court hadn't yet made them advisory in United States v. Booker, 543 U.S. 220 (2005).
In June 2015, the Supreme Court struck down the residual clause in the Armed Career Criminal Act of 1984 ("ACCA"), which was worded identically to the Guidelines' residual clause. Johnson v. United States, 576 U.S. 591 (2015). Johnson held that the ACCA's residual clause was "unconstitutionally vague" because it "leaves grave uncertainty about how to estimate the risk posed by a crime" and "about how much risk it takes for a crime to qualify as a violent felony." Id. at 597-98.
In June 2016-less than a year after Johnson-Littlejohn filed the instant § 2255 motion.[*] See J.A. 41-49. Littlejohn argued that Johnson's reasoning invalidated the Guidelines' residual clause that triggered his sentence enhancement in 1991.
The district court held Littlejohn's motion in abeyance pending Beckles v. United States, 580 U.S. 256 (2017). There, the Supreme Court held that the post-Booker (that is, advisory) Guidelines' identically worded residual clause wasn't subject to a vagueness challenge because the "advisory Guidelines do not fix the permissible range of sentences," id. at 263, unlike the mandatory Guidelines and the ACCA. In a concurring opinion, Justice Sotomayor noted that the majority's "adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before" the Guidelines became advisory "may mount vagueness attacks on their sentences." Id. at 281 n.4 (Sotomayor, J., concurring).
Then we decided United States v. Brown, 868 F.3d 297 (4th Cir. 2017). Like Littlejohn, Brown argued that Johnson invalidated the mandatory Guidelines' residual clause that enhanced his sentence. But we held that Brown's motion was untimely because the right the Supreme Court "recognized" in Johnson was specific to the ACCA and didn't extend to the mandatory Guidelines. Id. at 301-02.
As we explained, § 2255(f)(3) extends the limitations period beyond the presumptive one-year-past-the-judgment cutoff only if the movant asserts a right newly "recognized" by the Supreme Court. Id. at 301. But an open question necessarily means that the Court "has not 'recognized' that right." Id. So we couldn't "extrapolat[e] beyond the Supreme Court's holding to apply what we view as its 'reasoning and principles' to different facts under a different statute or sentencing regime." Id. at 299.
Granted, the Supreme Court has applied Johnson's reasoning to other residual clauses. See Sessions v. Dimaya, 138 S.Ct. 1204, 1213 (2018) (holding that a residual clause in the Immigration and Nationality Act was void for vagueness based on a "straightforward" application of Johnson); United States v. Davis, 139 S.Ct. 2319, 2326 (2019) (finding 18 U.S.C. § 924(c)'s residual clause to be void for vagueness based on Johnson and Dimaya). But the Court has never struck down the mandatory Guidelines' residual clause under which Littlejohn was sentenced.
In light of Brown, Littlejohn and the government jointly moved the district court to dismiss his motion as untimely. But Littlejohn asked for a certificate of appealability, which we granted.
II.
Brown compels us to affirm. The prior-panel rule prohibits us from ignoring Brown's binding precedent. See McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2009) (en banc). And contrary to Littlejohn's arguments, Brown doesn't "rest[] on authority that subsequently proves untenable considering Supreme Court decisions." United States v. Banks, 29 F.4th 168, 175 (4th Cir. 2022) (cleaned up).
Littlejohn invokes an exception that requires a "substantive analysis . . . whether the reasoning of [a later Supreme Court case] renders [the prior decision] untenable." Id. at 177. That bar is high. Even if "faced with prior Fourth Circuit precedent that could be read as being in tension with intervening Supreme Court reasoning but no directly applicable Supreme Court holding," our prior decision will govern as long as we've "relied on it in subsequent decisions." United States v. Dodge, 963 F.3d 379, 384-85 (4th Cir. 2020).
Even assuming Brown is "in tension with" Dimaya or Davis, Littlejohn hasn't shown that Brown is "untenable." Our decision in United States v. Rumph illustrates the point. 824 Fed.Appx. 165 (4th Cir. 2020) (argued but unpublished). There, we doubled down on Brown, holding that it didn't conflict with Dimaya or Davis. Id. at 167. Whether Johnson's reasoning fits other contexts "misses Brown's point," we explained, because Brown held that the Supreme Court hasn't "recognized" a right for § 2255(f)(3) purposes until it "formally acknowledge[s] the right in a holding." Id. at 168 (cleaned up).
Far from being untenable, Brown's rule survives in harmony with Davis and Dimaya. And as Rumph shows, we've continued to rely on Brown in later decisions.
III.
At bottom, Brown remains binding and compels us to affirm the district court's dismissal of Littlejohn's § 2255 motion as untimely.
AFFIRMED.
[*] This was Littlejohn's second § 2255 motion. His first, filed in 2005, was denied. In 2016, this Court authorized, under 28 U.S.C. § 2255(h), Littlejohn's second § 2255 motion in light of Johnson. See In re Littlejohn, No. 16-719 (4th Cir. June 24, 2016) (unpublished order).