USA v. Beaty

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSHUA BEATY,
Defendant. Case No. 3:13-cr-00010-SLG
ORDER GRANTING RECONSIDERATION AND STAYING MOTION TO VACATE
SENTENCE
Before the Court is Joshua Beaty’s motion for reconsideration at Docket 64. 	Mr.
Beaty seeks reconsideration of the Court’s order at Docket 61, which denied Mr. Beaty’s
motion to vacate his sentence. The Government opposed reconsideration at Docket 72.
Oral argument was held on October 4, 2016.
1. 	Background
On February 1, 2016, at Docket 43, Mr. Beaty filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. Upon being appointed counsel, he filed his First Amended
Motion to Vacate, in which he argued that in light of the United States Supreme Court’s
recent decision in Johnson v. United States, the use of his two prior burglary convictions
to enhance the applicable Guideline range violates due process.1 The Government filed
an opposition, in which it argued that the Court had properly enhanced Mr. Beaty’s
Guideline calculation because the burglaries constituted crimes of violence that were
listed in United States Sentencing Guideline § 4B1.2 as it existed at the time of
1 Docket 51; Johnson, 135 S. Ct. 2551 (2015).
Case 3:13-cr-00010-SLG Document 74 Filed 12/19/16 Page 1 of 6

Case No. 3:13-cr-00010-SLG, United States v. Beaty
Order Granting Reconsideration and Staying Motion to Vacate Sentence
Page 2 of 6
sentencing.2 The Government also argued that by signing a plea agreement, Mr. Beaty
waived his ability to collaterally attack his sentence on the basis he had asserted in his
motion.3 	And the Government argued that even if the residual clause were applicable,
Johnson’s analysis does not apply retroactively to the residual clause in the Sentencing
Guidelines. At Docket 56, the Government moved to stay the proceedings until the Ninth
Circuit determined the issue.4 	After that filing was made, the issue came before the
United States Supreme Court in Beckles v. United States, but the Court has not yet issued
its ruling in that case.5 Mr. Beaty replied to the Government’s opposition to the motion to
vacate at Docket 57 and objected to staying the proceedings at Docket 58.
Upon 	initial 	consideration of 	these motions, 	the 	Court 	issued an 	order 	on
September 6, 2016 at Docket 61, in which it observed that Mr. Beaty’s original Guideline
calculation included an enhancement based on Mr. Beaty’s prior burglary convictions and
held that Mr. Beaty had waived his right to collaterally attack that calculation. Accordingly,
the Court denied both Mr. Beaty’s motion to vacate and the Government’s motion to stay.
On September 8, 2016, Mr. Beaty filed the current motion for reconsideration of
the Court’s September 6, 2016 order. Upon consideration of the parties’ arguments, the
Court will grant that motion and set aside its order denying the motion to vacate.
2 See Docket 52 at 1–2; but see n.11, infra.
3 See Docket 53 (Gov’t Opp’n to Mot. to Vacate) at 6–8.
4 See Docket 56 at 2.
5 616 F. App'x 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016) (No. 15-8544, 2016
Term).
Case 3:13-cr-00010-SLG Document 74 Filed 12/19/16 Page 2 of 6

Case No. 3:13-cr-00010-SLG, United States v. Beaty
Order Granting Reconsideration and Staying Motion to Vacate Sentence
Page 3 of 6
However, the Court will also on its own initiative stay its determination of the motion to
vacate pending the Supreme Court’s determination in Beckles.
2. 	Relief from the Prior Order
Pursuant to Federal Rule of Civil Procedure 60(b)(6), a “court may relieve a party
or its legal representative from a final judgment, order, or proceeding . . . [for] any other
reason [not covered by (1)–(5)] that justifies relief.”6 While Rule 60(b)(6) is reserved for
“extraordinary circumstances,”7 the Ninth Circuit has held that legal error may provide a
basis for relief.8
3. 	The Court’s Reliance on the Residual Clause at Sentencing
On June 12, 2013, the Court sentenced Mr. Beaty to a term of imprisonment of 96
months for the offense of Felon in Possession of a Firearm.9 	The Court calculated the
Guideline range at the start of the sentencing hearing. The statutory maximum for the
crime was 120 months. In the absence of such limitation, the Guideline range would have
been 130 to 162 months10—a range that was based on a total offense level of 27,11 which
was based in part on a 4-level enhancement due to Mr. Beaty’s two prior burglary
6 Fed. R. Civ. P. 60(b)(6).
7 See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
8 In re Int'l Fibercom, Inc., 503 F.3d 933, 940 (9th Cir. 2007) (citing Liberty Mut. Ins. Co. v.
EEOC, 691 F.2d 438, 441 (9th Cir. 1982)) (holding that the district court did not abuse its
discretion when it granted a Rule 60(b)(6) motion challenging an order that granted relief not
permitted by the Bankruptcy Code).
9 See Docket 41 (Am. J.) at 2.
10 See Docket 24 (Presentence Report) at 29.
11 Docket 24 at 14.
Case 3:13-cr-00010-SLG Document 74 Filed 12/19/16 Page 3 of 6

Case No. 3:13-cr-00010-SLG, United States v. Beaty
Order Granting Reconsideration and Staying Motion to Vacate Sentence
Page 4 of 6
convictions pursuant to § 2K2.1(a)(2).12 	But because of the statutory maximum, the
Court’s Guideline calculation defaulted to 120 months. The Court then considered all of
the applicable factors set forth in 18 U.S.C. § 3553(a) and imposed a sentence of 96
months.13
At the time of Mr. Beaty’s sentencing, the Ninth Circuit had recognized that the
elements of burglary under Alaska law were not a categorical match with the generic
definition of burglary under federal law.14 But the Ninth Circuit had also held that a district
court could rely on the residual clause to classify prior burglaries as crimes of violence.15
Given the posture of the then-current Ninth Circuit authority, Mr. Beaty had no basis at
the time of his sentencing to object to the enhancement of his Guideline calculation based
on 	the 	prior 	burglary 	convictions. 	Accordingly, 	Mr. 	Beaty’s 	Guideline 	calculation
depended, at least in theory, on the validity of the residual clause of § 4B1.2(a)(2), and
the Court’s September 6, 2016 order erroneously held otherwise. Therefore, the Court’s
prior order at Docket 61 will be vacated, and the Court will reconsider Mr. Beaty’s first
amended motion to vacate at Docket 51.
12 The applicable U.S. Sentencing Guidelines then in effect, § 2K2.1(a)(2), provided that the
Base Offense Level should be 24 if “defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of either a crime of violence or a
controlled substance.” (U.S. Sentencing Comm’n 2012). § 2K2.1 refers to § 4B1.2(a), which
defines crime of violence. Id.
13 Docket 54 (Sent’g Tr.) at 31.
14 United States v. Sparks, 265 F.3d 825, 834 (9th Cir. 2001) (“[T]he Alaska statute exceeds the
scope of generic burglary.”), overruled on other grounds by United States v. Grisel, 488 F.3d
844 (9th Cir. 2007) (en banc).
15 United States v. Mayer, 560 F.3d 948, 958 (9th Cir. 2009).
Case 3:13-cr-00010-SLG Document 74 Filed 12/19/16 Page 4 of 6

Case No. 3:13-cr-00010-SLG, United States v. Beaty
Order Granting Reconsideration and Staying Motion to Vacate Sentence
Page 5 of 6
4. 	Motion to Vacate
Pursuant to 28 U.S.C. § 2255, a federal prisoner “may move the court which
imposed the sentence to vacate, set aside or correct the sentence,” on the grounds that
“the sentence was imposed in violation of the Constitution or laws of the United States.”
Mr. Beaty argues that the Supreme Court’s holding in Johnson, which nullified the
residual clause contained in the Armed Career Criminal Act (ACCA), applies equally to
the identically-worded residual clause contained in § 4B1.2. 	In Johnson, the Supreme
Court held that the residual clause of the ACCA was unconstitutional under the void-for-
vagueness doctrine.16 Then in Welch, the Court found that Johnson applies retroactively
to cases on collateral review,17 creating the potential for relief for prisoners previously
sentenced pursuant to the residual clause of the ACCA. But neither the Supreme Court
nor the Ninth Circuit have determined whether Johnson’s reasoning applies retroactively
to Guideline cases on collateral review. The issue is currently before the Supreme Court
in Beckles v. United States;18 oral argument was heard on November 28, 2016 and a
decision is expected within the next six months. 	In these circumstances, the Court finds
it would be premature for this Court to rule on this issue at this time given the likelihood
of a clear resolution in the near future.
16 Johnson, 135 S. Ct. 2551.
17 Welch, 136 S. Ct. at 1265.
18 Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510
(2016) (No. 15-8544, 2016 Term).
Case 3:13-cr-00010-SLG Document 74 Filed 12/19/16 Page 5 of 6

Case No. 3:13-cr-00010-SLG, United States v. Beaty
Order Granting Reconsideration and Staying Motion to Vacate Sentence
Page 6 of 6
The Court acknowledges, however, that if Johnson’s rationale applies retroactively
to Mr. Beaty’s case it could result in a reduced sentence.19 Accordingly, the parties are
directed to consider what their respective positions will be if Johnson’s rationale is held
to apply retroactively 	to Guideline cases so 	that if 	Mr. 	Beaty’s 	position prevails,
resentencing could occur promptly thereafter.
For the reasons set forth above, IT IS ORDERED that Defendant’s motion to
reconsider at Docket 64 is GRANTED and the order at Docket 61 is VACATED. 	It is
further ordered that Defendant’s motion to vacate at Docket 51 is STAYED until either
June 30, 2017 or the Supreme Court issues its decision in Beckles, whichever occurs
first.
DATED this 19th day of December, 2016.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
19 But see Docket 54 (Sent’g Tr.) at 31 in which the Court stated,
In looking at the guidelines, they really are not particularly applicable here, in
point of fact considerably higher than the statutory minimum—I mean statutory
maximum, so that the guidelines consideration is not one that really came into
play here at all, given that Congress has indicated that the maximum penalty in
this particular situation should be 120 months, below what the guidelines would
otherwise have [been].
Case 3:13-cr-00010-SLG Document 74 Filed 12/19/16 Page 6 of 6