United States District Court, D. New Mexico
ORDER STAYING RULING PENDING RULING IN
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the United States' Response
to Defendant's Motion to Vacate, Set Aside, or Correct
Sentence [CV Doc. 4; CR Doc. 219], filed August 1, 2016, in
response to Defendant Chris Harris's Motion Pursuant to
28 U.S.C. § 2255, filed June 27, 2016 [CV Doc. 1; CR
Doc. 216]. The United States requests that, if the Court
declines to deny Mr. Harris's motion at this time, the
Court grant a stay pending the Supreme Court's decision
in United States v. Beckles (S.Ct. No. 15-8544). Mr.
Harris did not reply to the government, and the time for
doing so has elapsed. Having reviewed the parties'
briefing, the Court hereby orders that ruling in this case be
stayed pending the Supreme Court's decision in
Harris has moved to vacate his sentence as unconstitutional
pursuant to 28 U.S.C. § 2255. He asserts that his
sentence was enhanced under the so-called residual clause of
the definition of “crime of violence” found in
the career offender guideline of the United States Sentencing
Guidelines (“Guidelines”). [CV Doc. 1; CR Doc.
216] at 1, 6-7. He argues that the Court should extend to his
case the logic of the Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551, 2557
(2015), in which the Court held as void for vagueness the
so-called residual clause of the definition of “violent
felony” found in the Armed Career Criminal Act.
United States disagrees. It notes that the Johnson
holding does not automatically extend retroactively to
Guidelines cases on collateral review. [CV Doc. 4; CR Doc.
219] at 4. The government's main argument, though, is
that because Mr. Harris was sentenced pursuant to a plea
agreement under Fed. R. Crim. P. 11(c)(1)(C), his sentence
was not in fact enhanced under the career offender guideline.
[CV Doc. 4; CR Doc. 219] at 2. While the government
acknowledges that Mr. Harris's advisory guideline range
was enhanced under the career offender provision, it asserts
that his ultimate sentence, 188 months, was well below the
guideline range of 262-327 months and the statutory penalty
of 240 months to life; Mr. Harris's sentence, the
government argues, was not “expressly tied to the
advisory guideline range.” Id. at 5. In the
alternative, the government asks that the Court stay
proceedings pending the outcome of Beckles.
Tenth Circuit has invalidated, under Johnson, the
residual clause of the career offender guideline. United
States v. Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015).
Madrid, however, was a direct appeal; the Tenth
Circuit has not decided whether the rule in Madrid
applies retroactively. These issues-whether Johnson
should be extended to the career offender guideline, and, if
so, whether such ruling should apply retroactively-are
currently before the Supreme Court in Beckles. The
Court believes awaiting a ruling in Beckles would be
Harris does not contest the government's request for a
stay pending Beckles; he did not reply to the
government's response requesting the stay. Further, Mr.
Harris has not shown- or even alleged-in his motion any facts
to suggest that he would be prejudiced by a stay. He does not
suggest that he will be released before the Supreme Court
decides Beckles, or that if his motion were granted
he would be eligible for release immediately or sometime
before Beckles is decided. Moreover, based on the
information set out in the briefing, it appears to the Court
that he likely will not, in fact, be eligible for release
before Beckles is decided-whether or not he is
entitled to re-sentencing. Mr. Harris was sentenced on April
26, 2009, to 188 months, in accordance with a plea agreement.
[CV Doc. 1; CR Doc. 216] at 3. If he is not entitled to
re-sentencing, the Court calculates that he will be released
in December 2024. If Mr. Harris's guideline range had not
been enhanced by the career offender provision, and if he had
been sentenced at the lower end of that guideline range, the
Court calculates that he would have been scheduled for
release no sooner than November 2021. Thus, even if Mr. Harris
ultimately is entitled to re-sentencing without the career
offender enhancement, and he is sentenced within the
guideline range, he likely still will not be entitled to
release before the Supreme Court decides Beckles.
short, Mr. Harris has neither contested the government's
request for a stay pending a ruling in Beckles nor
shown that he would be prejudiced by a stay. If Mr. Harris
believes he can show that he would be prejudiced by a stay in
this case, he may move to lift the stay. At this time,
however, he has made no such showing (or even allegation),
and the Court finds that a stay pending a decision in
Beckles is appropriate.
THEREFORE ORDERED that ruling in this case is STAYED pending
the Supreme Court's decision in United States v.
Beckles (S.Ct. No. 15-8544).
 Mr. Harris does not indicate what he
believes his guideline range should have been, absent the
career offender enhancement. Nor does he indicate how his
sentence, which was stipulated to in his plea agreement,
would have been adjusted absent the enhancement. The
government states that Mr. Harris's guideline range
absent the career offender provision would have been 151-188