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Raybon v. United States

United States Court of Appeals, Sixth Circuit

August 14, 2017

Jerome Raybon, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

         Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 2:03-cr-50064-1; 2:16-cv-12174-Bernard A. Friedman, District Judge.

         ON BRIEF:

          Joan E. Morgan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Flint, Michigan, for Appellant.

          Shane Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

          Before: NORRIS, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

          OPINION

          SUHRHEINRICH, Circuit Judge.

          Petitioner Jerome Raybon appeals the district court's denial of his 28 U.S.C. § 2255 motion, claiming that his Michigan offense of assault with intent to do great bodily harm no longer qualifies as a crime of violence under the Sentencing Guidelines after Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson 2015). We conclude that his claim is not timely under 28 U.S.C. § 2255(f)(3).

          I.

         In 2004, during the pre-Booker era when the Sentencing Guidelines were deemed mandatory, see United States v. Booker, 543 U.S. 220, 233 (2005), Raybon pleaded guilty to distributing more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). As part of his plea agreement, Raybon agreed to be "held accountable for between 50 and 150 grams of cocaine base which results in a base offense level of 32." Raybon further agreed that he qualified as a career offender under the United States Sentencing Guidelines, 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 to 327 months' imprisonment (from 140 to 175 months).[1] The district court sentenced Raybon to 295 months' imprisonment. Raybon appealed. This court affirmed based on an appeal waiver in the plea agreement.

         Ten years later, under a different regime of "effectively advisory" Guidelines, see Booker, 543 U.S. at 245, Raybon moved to vacate his sentence pursuant to § 2255 based on Johnson 2015. Johnson 2015 invalidated the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as being unconstitutionally void for vagueness.[2] Johnson 2015, 135 S.Ct. at 2557. 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, U.S.S.G. § 4B1.2(a)(2).[3] The district court denied the motion as untimely, because it perceived Raybon's argument as actually based not on Johnson 2015, but on Johnson v. United States, Johnson 2010, 559 U.S. 133 (2010) (Johnson 2010), which held that the term "physical force" in the identically-worded elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), means violent force. 559 U.S. at 140. The district court held that although Raybon mentioned Johnson 2015 and asserted that it applied to his case, he basically argued that his assault conviction did not satisfy the elements clause of U.S.S.G. § 4B1.2(a)(1) because Michigan law does not require proof of "the use, attempted use, or threatened use of physical force" and was not one of the four enumerated offenses listed in U.S.S.G. § 4B1.2(a)(2). Because Raybon's argument "focuse[d] on other clauses that were not at issue in Johnson [2015], " the district court held that his claims should have been raised in 2006, when his conviction became final, or at the latest in 2010, after Johnson 2010 was decided. The district court also ruled on the merits, holding that assault with intent to do great bodily harm was a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1). Raybon appealed, and the district court issued a certificate of appealability.

         II.

         This court reviews the district court's denial of a motion to vacate under § 2255 de novo. Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).

         A.

         We agree with the district court that Raybon's § 2255 petition was untimely, but follow a different analytical path. A § 2255 motion must be filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). A conviction becomes final upon conclusion of direct review. Sanchez-Castellano v. United States, 358 F.3d 424, 426 (6th Cir. 2004). If the defendant takes a direct appeal to the court of appeals, the judgment of conviction becomes final after the ninety-day period to file a petition for writ of certiorari expires. Id. Here, the district court entered judgment on September 1, 2004. Raybon appealed. This court entered its order on November 4, 2005, so the ninety-day period to file a petition for writ of certiorari expired on February 2, 2006. Thus, Raybon ...


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