Raybon v. United States, No. 16-2522 (6th Cir. 2017)Annotate this Case
In 2004, when the Sentencing Guidelines were deemed mandatory, Raybon pleaded guilty to distributing more than 50 grams of cocaine base, 21 U.S.C. 841(a)(1), agreeing that he qualified as a career offender under U.S.S.G. 4B1.1, based on a prior drug trafficking conviction and a conviction for assault with intent to do great bodily harm less than murder. The career offender designation increased his guidelines range to 262-327 months’ imprisonment (from 140-175 months). The Sixth Circuit affirmed a sentence 295 months’ imprisonment. Ten years later, under a different regime of “effectively advisory” Guidelines, Raybon moved to vacate his sentence under 28 U.S.C. 2255 based on the Supreme Court’s 2015 decision in Johnson, which invalidated the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), as unconstitutionally void for vagueness. Raybon argued that his predicate conviction for assault with intent to do great bodily harm no longer qualified as a crime of violence under an identically-worded residual clause in the career offender guideline. The district court denied the motion as untimely. The Sixth Circuit affirmed; whether the 2015 Johnson decision applies to identical language in the mandatory guidelines is an open question. Raybon’s appeal was not based on a right newly established by the Supreme Court in 2015.