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United States v. Sledge

United States District Court, W.D. Washington, Seattle

May 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLAS MICHAEL SLEDGE, Defendant. NICHOLAS MICHAEL SLEDGE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Thomas S. Zilly United States District Judge

         THIS MATTER comes before the Court on the parties' stipulated motion for reconsideration, docket no. 15 in C16-873. Having reviewed all papers filed in support of such motion, including the supplemental briefs, docket nos. 17 and 19 in C16-873, submitted at the Court's direction, see Minute Orders (docket nos. 14 & 16 in C16-873; also filed as docket nos. 53 & 54 in CR14-81), the Court enters the following order.

         Background

         In 2014, petitioner/defendant Nicholas Michael Sledge was convicted of bank robbery and sentenced to 104 months in prison. Pursuant to the version of the United States Sentencing Guidelines (“USSG”) in effect at that time, Sledge was deemed a “career offender” as a result of two prior convictions for what were then considered “crimes of violence, ” including a conviction for attempting to elude a pursuing police vehicle. See USSG §§ 4B1.1 & 4B1.2(a)(2) (2014). Based on the reasoning in Johnson v. United States, 135 S.Ct. 2551 (2015), attempting to elude a pursuing police vehicle no longer qualifies as a “crime of violence, ” and the Sentencing Guidelines have since been amended. In contrast to the range of 151-to-188 months, which applied at the time of Sledge's sentencing, the range that would currently be calculated is 57-to-71 months. See USSG §§ 2B3.1, 3E1.1, & 4A1.1.

         In response to Sledge's motion under 28 U.S.C. § 2255, the Government argued that Johnson, which invalidated, as unconstitutionally vague, the residual clause in the Armed Career Criminal Act's definition of a “violent felony, ” was not retroactive with regard to a similar residual clause in the Sentencing Guidelines' definition of a “crime of violence.” By Order entered March 3, 2017, docket no. 12 in C16-873, the Court rejected this and other defenses asserted by the Government, granted Sledge's § 2255 motion, vacated the judgment in CR14-81, and set a hearing date for resentencing. On March 6, 2017, the United States Supreme Court issued its decision in Beckles v. United States, 137 S.Ct. 886 (2017), which did not decide, as forecasted, whether Johnson applied retroactively in the context of the Sentencing Guidelines, but instead indicated that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause of the Fifth Amendment. Id. at 895. The Government sought, and the Court granted, a continuance of the resentencing hearing, see Minute Order (docket no. 53 in CR14-81), and the parties now seek, by way of stipulated motion, to vacate the Court's Order granting Sledge relief under § 2255.[1]

         Discussion

         A. Waiver

         Regardless of whether Beckles applies retroactively, [2] the Government has waived its current argument that Sledge cannot challenge the constitutionality of his sentence. Waiver is the “intentional relinquishment or abandonment of a known right.” Wood v. Milyard, 566 U.S. 463, 132 S.Ct. 1826, 1835 (2012). Waiver occurs when the Government “deliberately steer[s]” a court away from a particular issue, id., or makes a considered decision to refrain from raising a known defense to a § 2255 motion, see Ryan v. United States, 688 F.3d 845, 848 (7th Cir. 2012). In contrast, if an argument is not presented because of inadvertence or oversight, it is merely forfeited, as opposed to waived. See Wood, 132 S.Ct. at 1835; Ryan, 688 F.3d at 848. A court may deny collateral relief on a ground that the Government has forfeited, but not on a basis that the Government has waived. Ryan, 688 F.3d at 848; see Gonzalez v. United States, 33 F.3d 1047, 1049 (9th Cir. 1994); see also Brascomb v. United States, 2015 WL 7300512 (M.D. Ala. Nov. 18, 2015) (ruling that the Government waived untimeliness and non-retroactivity defenses to § 2255 motion).

         In this § 2255 proceeding, the Government has always been on notice that Sledge was claiming “the right to be released upon the ground that the sentence was imposed in violation of the Constitution.” See 28 U.S.C. § 2255(a); see also Pet.'s § 2255 Mot. (docket no. 1 in C16-873). Yet, in responding to the § 2255 motion, the Government never asserted that Sledge could not challenge the Sentencing Guidelines as unconstitutionally vague. Indeed, the Government contemporaneously took quite the opposite position, siding with petitioner Travis Beckles and stating that “the advisory Sentencing Guidelines are subject to the constitutional ‘prohibition of vagueness in criminal statutes.'” Beckles v. United States, No. 15-8544, United States' Br. at 38, 2016 WL 5116851 (Sep. 19, 2016) (quoting Johnson, 135 S.Ct. at 2556-57). To permit the Government to now unwind a decision made by this Court before Beckles was issued, based on an argument the Government never raised in this case, and which it affirmatively disavowed both orally and in writing before the highest court in the country, would neither promote the principles of finality nor operate to prevent manifest injustice.

         The Government attempts to characterize its conduct as a concession, rather than a waiver. Although the Government is correct that an appellate court may choose not to be “bound by a party's concession as to the meaning of the law, ” see United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006), such canon does not apply in this context; the question before the Court is not whether to accept a concession before announcing a decision, but whether to permit the Government to reverse its position after an order has already been entered. The Government cannot contend that it did not know the issue of whether the Sentencing Guidelines were subject to vagueness challenges was potentially dispositive in Beckles -- the Government briefed the subject -- and the Court is satisfied that the Government's failure to timely assert the non-cognizability of Sledge's due process claim, for whatever reason, constituted a waiver. See Ryan, 688 F.3d at 848 (the Court “is neither authorized nor inclined to delve into the deliberational process that preceded a decision by the United States Attorney”).

         The Government cites United States v. Thompson, 851 F.3d 129 (1st Cir. 2017), to support its contention that its “concession” about the applicability of the Due Process Clause did not constitute a waiver. The Government's reliance on Thompson is entirely misplaced. In Thompson, the district court imposed a 327-month sentence, based in part on a finding that the defendant was a career offender, having been previously convicted in state court for assault and battery with a dangerous weapon (“ABDW”). See id. at 130. While the appeal in Thompson was pending, both Johnson and Beckles were decided. Id. at 130-31. The defendant raised a claim for relief under Johnson for the first time on appeal in a notice of supplemental authority. Id. at 131. In further briefing requested by the First Circuit, the Government conceded that Johnson invalidated the residual clause of the USSG's definition of a “crime of violence, ” pursuant to which the defendant had been designated a career offender; however, the Government argued that ABDW qualified as a “crime of violence” under the “elements” or “force” clause, as opposed to the residual clause, of the USSG's definition. Id. The First Circuit concluded that, in light of Beckles, it could ignore the Government's concession. Id.

         Thompson is distinguishable. Unlike the matter before the Court, Thompson involved a direct appeal, not a collateral challenge, and thus, the intervening changes in the law presented no retroactivity issues.[3] See Griffith, 479 U.S. at 328; see also supra note 2. Moreover, in contrast to this case, in Thompson, the defendant had received no relief pursuant to Johnson and its progeny before Beckles was issued, and thus, his position was unaffected by the First Circuit's refusal to accept the Government's concession. Finally, the equities of the cases are vastly different; in Thompson, an argument could be and was made that, even under the reasoning in Johnson, the prior conviction at issue still counted toward “career offender” status, see 851 F.3d at 131, whereas in this case, no dispute exists that a prior felony, which resulted in Sledge's treatment as a “career offender, ” no longer qualifies as a “crime of violence.” See USSG § 4B1.2(a) (2016).

         B. Forfeiture

         Even if the non-cognizability defense was not waived, it was forfeited. A court may exercise its discretion to deny a § 2255 motion on the basis of a forfeited defense only in “extraordinary circumstances, ” Wood, 132 S.Ct. at 1833, or “exceptional cases, ” Ryan, 688 F.3d at 848. The parties have proffered no reason for treating this matter as extraordinary or exceptional. No mention has been made of any ill consequence to Sledge (for example, prosecution of previously uncharged offenses) if the Court's earlier Order is not vacated. Moreover, unlike in Bill v. United States, No. C16-941 RSM, Order (docket no. 15) (W.D. Wash. Mar. 9, 2017), in which a similar stipulated motion was granted and an order granting ยง 2255 relief was vacated, in this case, the parties have not represented that Sledge's release would be delayed if he is resentenced or that Sledge would be ...


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