In re: Dequintan Arnick, No. 16-10328 (5th Cir. 2016)Annotate this Case
Movant seeks authorization to file a successive 28 U.S.C. 2255 motion pursuant to Johnson v. United States. Movant's sentence was based in part on USSG 2K2.1(a)(1), under which one of his prior convictions was deemed a “crime of violence” pursuant to the “residual clause” of USSG 4B1.2(a)(2), which defines a “crime of violence” for purposes of section 2K2.1(a)(1). The court concluded that, although Johnson announced a new rule of constitutional law that has been made retroactive by the Supreme Court to cases on collateral review, it did not address section 4B1.2(a)(2). Nor has the Supreme Court held that a Guidelines enhancement that increases the Guidelines range implicates the same due process concerns as a statute that increases a statutory penalty. The court noted that even in direct appeals, rather than collateral review as presented here, federal courts of appeals disagree on whether Johnson applies to the Guidelines, demonstrating that the Supreme Court has not decided the question. Even if Johnson does implicate section 4B1.2(a)(2), the Supreme Court has not addressed whether this arguably new rule of criminal procedure applies retroactively to cases on collateral review. Because movant failed to show that he is entitled to authorization to proceed based on Johnson, the court denied the motion for authorization. The court also denied the motion for appointment of a federal defender.