United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE
John Oliver Bryant moves pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. Purporting to
rely on the authority of Johnson v. United States,
135 S.Ct. 2551 (2015), Bryant asserts that when he was
sentenced as a “career offender” under the
then-mandatory Sentencing Guidelines, the Court erred in
finding that certain of his prior convictions qualified as
crimes of violence under the “residual clause” of
the career offender guideline, U.S.S.G. §§ 4B1.1,
reasons set forth below, the motion is DENIED as untimely and
the petition is DISMISSED.
papers in support of and in opposition to the motion, and the
record of the underlying criminal proceedings, reflect the
18, 1993, Bryant and his co-conspirators robbed a bank in
Pearl River, New York, at gunpoint, then fled in a stolen
getaway car. The robbers were pursued by the police, and a
gun fight ensued in the parking lot of a nearby high school.
The robbers managed to get away, and led numerous police cars
on a thirty mile-long high speed chase into New Jersey. The
getaway car sustained extensive damage during the chase, and
eventually came to a stop. Each of the robbers was arrested.
Four loaded firearms were recovered, as well as the cash
stolen from the bank. Thereafter, Bryant and his
co-conspirators were indicted in this district for bank
robbery (Count One), armed bank robbery (Count Two), use of a
firearm during a crime of violence (Count Three), and
conspiracy to commit armed bank robbery (Count Four).
Following a jury trial in February 1994 before the late
Honorable Charles L. Brieant, United States District Judge,
Bryant was convicted on all four counts.
sentencing on April 29, 1994, Judge Brieant determined that
Bryant was a career offender pursuant to Section 4B1.1 of the
Guidelines, because the offense of conviction was a crime of
violence and Bryant had at least two prior felony convictions
for crimes of violence. U.S.S.G. § 4B1.1 (1993).
Specifically, in 1975 Bryant had been convicted of conspiracy
to commit bank robbery and entering a bank with intent to
commit a felony, and in 1980 he had been convicted of bank
robbery. These convictions qualified as crimes of violence
under the career offender guideline's residual clause,
which applied to a felony offense that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” U.S.S.G. §
4B1.2(1)(ii) (1993). As a result, Bryant's final offense
level was 34, at Criminal History Category VI, with a
sentencing range of 262-327 months' imprisonment on
Counts One, Two, and Four. Count Three - the firearms offense
- required a mandatory minimum term of 60 months'
imprisonment, to be imposed consecutively to any other
sentence imposed. Thus, the applicable mandatory sentencing
range was 322-387 months.
the vicious and highly dangerous nature of Bryant's
crimes, the fact that Bryant was a career criminal who acted
as the ring leader of the conspiracy, and the need to confine
Bryant for the protection of society, Judge Brieant sentenced
Bryant to 300 months on Counts One and Two (which merged for
purposes of sentencing), 60 months on Count Three, and 27
months on Count Four, with all the sentences to run
consecutively, for a total term of imprisonment of 387 months
Second Circuit affirmed Bryant's conviction and sentence
by summary order on January 27, 1995. United States v.
Bryant, 47 F.3d 1159 (2d Cir. 1995). Bryant did not file
a petition for certiorari with the Supreme Court.
26, 2015, in Johnson v. United States, 135 S.Ct.
2551, 2563 (2015), the Supreme Court held that the residual
clause in the Armed Career Criminal Act of 1984
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
which is identical in wording to the residual clause in
Section 4B1.2 of the Guidelines, is unconstitutionally vague;
and therefore that imposing an increased sentence under
ACCA's residual clause violates due process. On April 18,
2016, in Welch v. United States, 136 S.Ct. 1257,
1268 (2016), the Court held that Johnson announced a
new “substantive” rule of constitutional law that
applies retroactively in cases that challenge on collateral
review a sentence enhanced under ACCA.
23, 2016, Bryant filed the instant Section 2255 motion. His
central argument is that the career offender guideline's
residual clause is unconstitutionally vague under the
authority of Johnson and Welch.
March 6, 2017, in Beckles v. United States, 137
S.Ct. 886, 892 (2017), the Supreme Court held that the career
offender guideline's residual clause, which was made
advisory - rather than mandatory - by the
Court's decision in United States v. Booker, 543
U.S. 220 (2005), is not subject to a vagueness challenge
under the Due Process Clause, since the Guidelines, unlike
ACCA, “do not fix the permissible range of
sentences.” Thus, the residual clause in the
advisory career offender guideline remains valid
after Johnson. The Court left open the question
whether the residual clause in the mandatory career
offender guideline is subject to a due process vagueness
government contends Bryant's petition is barred by the
one-year statute of ...