United States v. London, No. 17-30675 (5th Cir. 2019)
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Defendant appealed the district court's order denying his 28 U.S.C. 2255 motion to correct his 1996 sentence for various drug offenses. Defendant argued that the residual clause of the pre-Booker Sentencing Guideline's career offender provision, under which he was sentenced, is unconstitutionally vague because its language is the same as the residual clause of the Armed Career Criminal Act declared unconstitutional in Johnson v. United States, 135 S.Ct. 2551 (2015).
The Fifth Circuit held that it was debatable whether the right recognized in Johnson applies to the pre-Booker Sentencing Guidelines—an administrative regime that governs a judge's discretion to a range within the statutory minimum and maximum sentences. Therefore, defendant did not assert a right dictated by Johnson but instead asserts a right that would extend, as opposed to apply, Johnson to the pre-Booker Guidelines. Therefore, defendant was not entitled to the benefit of a new statute of limitations and his 28 U.S.C. 2255 motion was time-barred.
The court issued a subsequent related opinion or order on September 6, 2019.
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