United States District Court, S.D. Ohio, Western Division
J. Dlott District Judge
Michael R. Merz United States Magistrate Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
case is before the Court on Defendant's Objections (ECF
No. 58) to the Magistrate Judge's Supplemental Report and
Recommendations which recommended that this case be dismissed
with prejudice (“Report, ” ECF No. 55). Judge
Dlott has recommitted the case for reconsideration in light
of the Objections (ECF No. 58).
claimed in the Memorandum in Support of his Amended Motion to
Vacate under 28 U.S.C. § 2255 that his sentence as a
career offender under the Sentencing Guidelines must be
vacated because the relevant portion of the Guidelines was
unconstitutionally vague (ECF No. 43, PageID 43-46, relying
on Johnson v. United States, 135 S.Ct. 2551 (2015),
and United States v. Pawlak, 822 F.3d 902
(6th Cir. 2016). As the Report noted, that
argument is now untenable because the Supreme Court has
decided Beckles v. United States, 197 L.Ed.2d 145
(2017), holding “the [Sentencing] Guidelines are not
subject to a vagueness challenge under the Due Process
Clause. The residual clause in §4B1.2(a)(2) therefore is
not void for vagueness.” Id. at *11. On the
basis of Beckles, the Magistrate Judge recommended
dismissal with prejudice (Report, ECF No. 52).
objectsed that Beckles only applies to the
Sentencing Guidelines after they were made advisory in
United States v. Booker, 543 U.S. 220 (2005), and
notes that he was sentenced in 2003 under the mandatory
Guidelines regime before Booker (Objections, ECF No.
53, PageID 102). Therefore, he claims, the “rationale
in Beckles is inapplicable to this case. Under a
mandatory Guidelines scheme, the residual clause of U.S.S.G.
§ 4B1.1 is void for vagueness.” Id. at
Supplemental Report, the Magistrate Judge concluded the
holding in Beckles is not limited to
post-Booker advisory Guidelines; the Supreme Court
nowhere adopts or adverts to the distinction Costello urges.
Nor is the rationale of Beckles as narrow as
Costello suggests. The Supplemental Report noted that Justice
Thomas writes that the basis of the void-for-vagueness
doctrine is that a vague criminal statute “fail[s] to
give ordinary people fair notice of the conduct it punishes
fair notice of the conduct it punishes, or so standardless
that it invites arbitrary enforcement.”
Beckles at *10, citing Johnson, supra.
Johnson, in contrast, found a portion of a statute - the
Armed Career Criminal Act - to be unconstitutionally vague.
Supplemental Report noted that even the mandatory Guidelines
were not addressed to “ordinary people” and did
not limit absolutely the discretion of judges to depart
upward or downward from the Guideline range. Costello
actually received a sentence of seven years on the armed bank
robbery count which carried a maximum of twenty-five years.
At sentencing Judge Dlott found Costello was a career
offender and the Guideline range for Count 2 was 188 to 235
months (Transcript, ECF No. 47, PageID 65). His lawyer argued
that, while he was technically a career offender, his
predicate offenses happened on the same day and without the
career offender's designation, his Guideline range on the
bank robbery would have been 70 to 87 months. Id. at
PageID 74. He then asked for a downward departure. He
received a downward departure of nine offense levels with a
consequent Guideline range of 84 to 105 months and then a
sentence at the low end of that range of 88 months.
Id. at PageID 78. Costello's suggested
distinction of the mandatory from the advisory Guidelines is
Justice Thomas does use the phrase “advisory
Guidelines” at several places in Beckles, there is no
indication he is using the word “advisory” as
anything other than a descriptor. As the Magistrate Judge
stated in the Supplemental Report, Beckles nowhere
makes the distinction on which Tunstall relies or indeed
anywhere distinguishes between the Guidelines before and
after Booker. And the Court expressly held
“that §4B1.2(a)'s residual clause is
not void for vagueness.” 197 L.Ed.2d at **17.
Supreme Court granted certiorari in Beckles to
determine whether the vagueness doctrine applied at all to
The Supreme Court, however, has not yet determined whether
Johnson also dooms the Guidelines' residual
clause, and there are respectable constitutional arguments
that the vagueness doctrine does not apply to the advisory
Guidelines. The Supreme Court has agreed to resolve the point
next Term in Beckles v. United States, No. 15-8544,
136 S.Ct. 2510, 195 L.Ed.2d 838, 2016 U.S. LEXIS 4142, 2016
WL 1029080 (U.S. June 27, 2016) (Mem.).
In re Embry, 831 F.3d 377, 378 (6th Cir.
2016). The Supreme Court did just that, deciding the
vagueness doctrine does not apply to the Guidelines residual
clause. It did not carve out for separate treatment the
Guidelines before Booker. Beckles provides no basis
for this Court to do so.
on the foregoing analysis, it is again respectfully
recommended that Mr. Costello's Amended Motion to Vacate
under 28 U.S.C. § 2255 be DISMISSED WITH PREJUDICE.
Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of
appealability and the Court should certify to the Sixth
Circuit that any ...