United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
MORRIS UNITED STATES DISTRICT JUDGE.
case comes before the Court on Defendant Granbois's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Granbois is a federal prisoner proceeding
jury indicted Granbois on one count of aggravated sexual
abuse of a child under the age of twelve on September 23,
2002 in violation of 18 U.S.C. § 2241(c). See
Indictment (Doc. 1). A petit jury found him guilty on April
22, 2003. See Verdict (Doc. 44).
Granbois's objection, the sentencing judge found that
convictions in 1996 and 1998 for abusive sexual contact,
see 18 U.S.C. § 2244(a)(3), constituted
“crimes of violence.” See Presentence
Report ¶¶ 33-34. Granbois qualified as career
offender. See U.S.S.G. § 4B1.1. Without that
designation, Granbois's guideline sentencing range would
have been 235 to 293 months. With it, his guideline
sentencing range was 360 months to life. The sentencing judge
imposed a sentence of life in prison. See Judgment
(Doc. 68) at 2.
appealed. Citing United States v. Pereira-Salmeron,
337 F.3d 1148 (9th Cir. 2003), the Ninth Circuit affirmed
application of the career offender guideline. See United
States v. Granbois, 376 F.3d 993, 995-97 (9th Cir.
now argues that the Supreme Court's recent decision in
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015), invalidates his sentence. Johnson determined
that a phrase in 18 U.S.C. § 924(e)(2)(B)(ii) proved so
vague that it violated the Due Process Clause. Since the time
that Granbois filed his § 2255 motion, the Supreme Court
has determined that a similar phrase in 18 U.S.C. §
16(b) also proves unconstitutionally vague. See Sessions
v. Dimaya, __ U.S. __, 138 S.Ct. 1204 (2018).
Ninth Circuit determined on September 12, 2018, that §
2255 motions seeking relief under the rule of
Johnson are untimely unless and until the Supreme
Court extends Johnson to each new context that
arguably may be affected by its reasoning. See United
States v. Blackstone, No. 17-55023, slip op. at 15 (9th
Cir. Sept. 12, 2018). Blackstone controls the
outcome here. Granbois's motion remains untimely.
motion also lacks merit. He contends that his sentence
improperly relied on the Sentencing Commission's
interpretation of the phrase “crime of violence.”
The definition of the phrase mirrors, however, the
definitions at issue in Dimaya and Johnson.
Supreme Court has recently determined that “the
advisory guidelines are not subject to vagueness
challenges under the Due Process Clause.” Beckles
v. United States, __ U.S. __, 137 S.Ct. 886, 890 (2017)
(emphasis added). Granbois was sentenced before Booker v.
United States, 543 U.S. 220, 245 (2005) (Breyer, J.),
made the guidelines “effectively advisory.” Ninth
Circuit precedent before Booker determined that the
mandatory guidelines remained subject to vagueness challenges
under the Due Process Clause. See United States v. Linda
Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997). Some
defendants sentenced under the mandatory sentencing
guidelines might be able to challenge their sentences on due
process grounds were it not for Blackstone.
reasons limit application of the Supreme Court's ruling
in Johnson and the Ninth Circuit's ruling in
Linda Johnson to Granbois's case. First, on
direct appeal, the Ninth Circuit determined that abusive
sexual contact qualifies as a “forcible sex
offense.” Granbois, 376 F.3d at 996. Granbois
asserts that the Guidelines Commission referred to a
“forcible sex offense” in its commentary
“based on the presumption that the offenses listed in
the commentary categorically qualified as a crime of violence
under § 4B1.2(a)'s residual clause.” Mot.
§ 2255 (Doc. 85) at 30. The Ninth Circuit explained,
however, that “drafters of the provision likely
identified those crimes”-that is, forcible sex
offenses-“as inherently posing an implicit
‘threatened use of force' . . . even though
‘force,' as such, is not an essential element for
conviction of those offenses.” Granbois, 376
F.3d at 996 (quoting Pereira, 337 F.3d at 1150).
to fall within the scope of Johnson, the definition
of “forcible sex offenses” would have to
“fail to give ordinary people fair notice of the
conduct it punishes” or “invite arbitrary
enforcement by judges.” Johnson, 135 S.Ct. at
2557. Nothing unpredictable or indeterminate derives from a
rule that any offense involving sexual abuse of a minor
qualifies. “Sexual abuse of a minor” simply
refers to “the common, everyday meanings of the words
‘sexual,' ‘abuse,' and
‘minor.'” United States v.
Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999),
quoted in Granbois, 376 F.3d at 996. The Sentencing
Commission's reason for deeming forcible sex offenses to
constitute crimes of violence does not deprive defendants of
fair notice or invite arbitrary enforcement.
the Commission's definition of “forcible sex
offense” does not depend on categorical analysis. A
court need not “imagine an idealized ordinary case of
[a] crime” or “the kind of conduct the ordinary
case of a crime involves.” Dimaya, 138 S.Ct.
at 1214 (internal quotation marks omitted). No one need
“judge whether that abstraction presents some
not-well-specified-yet-sufficiently-large degree of
risk.” Id. at 1216. A “forcible sex
offense” is defined, like all other sufficiently
definite terms of law, through use and application.
provides no foothold here. Granbois's motion under 28
U.S.C. § 2255 must be denied because it lacks merit and
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11(a), Rules Governing § 2255
Proceedings. A COA should issue as to claims on which the
petitioner makes “a substantial showing of the denial
of a constitutional right, ” 28 U.S.C. §
2253(c)(2), provided “jurists of reason could disagree
with the district court's resolution of [the]
constitutional claims” or “conclude the issues
presented are adequate to ...