Hardy v. United States

First Circuit

Hardy v. United States

871 F.3d 85, 2017 U.S. App. LEXIS 17710

CourtCourt of Appeals for the First Circuit

DecidedSeptember 13, 2017

Docket16-1668P

StatusPublished

Cited by3 cases

This text of 871 F.3d 85 (Hardy v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hardy v. United States, 871 F.3d 85, 2017 U.S. App. LEXIS 17710 (1st Cir. 2017).

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Opinion

KAYATTA, Circuit Judge.

For the reasons stated in today’s opinion in Moore v. United States, No. 16-1612, 871 F.3d 72, 2017 WL 4021654 (1st Cir. Sept. 13, 2017), we certify Iman Hardy’s successive § 2255 motion insofar as it argues that Johnson II invalidates the residual clause of the pre-Booker career offender guideline. See 28 U.S.C. § 2255(h)(2) (setting out the certification requirements for successive motions).

Hardy also argues that Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), establishes that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a substantive decision with retroactive effect. We cannot certify this portion of Hardy’s motion. This court has already held that Booker was not a substantive decision and therefore did not have retroactive effect. See Cirilo-Muñoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005); see also Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that a jury rather than a judge must find facts that raise a statutory maximum, was not a substantive decision). Welch has not cast doubt on that holding. Instead, Welch reaffirmed that a decision that “ ‘allocate^] decisionmaking authority’ between judge and jury” is procedural. Welch, 136 S.Ct. at 1265 (quoting Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)). Booker, which held that the mandatory guidelines were unconstitutional insofar as they allowed a judge, rather than a jury, to find facts that increased a defendant’s maximum mandatory guidelines sentence, 543 U.S. at 244, 125 S.Ct. 738 (opinion of Stevens, J.), was precisely a decision of this sort.

Accordingly, we certify Iman Hardy’s successive § 2255 motion insofar as it argues that Johnson II invalidates the residual clause of the pre-Booker career offender guideline. We do not certify it insofar as it argues that Booker is a substantive decision with retroactive effect under Welch.

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KAYATTA, Circuit Judge.

For the reasons stated in today’s opinion in Moore v. United States, No. 16-1612, 871 F.3d 72, 2017 WL 4021654 (1st Cir. Sept. 13, 2017), we certify Iman Hardy’s successive § 2255 motion insofar as it argues that Johnson II invalidates the residual clause of the pre-Booker career offender guideline. See 28 U.S.C. § 2255(h)(2) (setting out the certification requirements for successive motions).

Hardy also argues that Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), establishes that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a substantive decision with retroactive effect. We cannot certify this portion of Hardy’s motion. This court has already held that Booker was not a substantive decision and therefore did not have retroactive effect. See Cirilo-Muñoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005); see also Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that a jury rather than a judge must find facts that raise a statutory maximum, was not a substantive decision). Welch has not cast doubt on that holding. Instead, Welch reaffirmed that a decision that “ ‘allocate^] decisionmaking authority’ between judge and jury” is procedural. Welch, 136 S.Ct. at 1265 (quoting Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)). Booker, which held that the mandatory guidelines were unconstitutional insofar as they allowed a judge, rather than a jury, to find facts that increased a defendant’s maximum mandatory guidelines sentence, 543 U.S. at 244, 125 S.Ct. 738 (opinion of Stevens, J.), was precisely a decision of this sort.

Accordingly, we certify Iman Hardy’s successive § 2255 motion insofar as it argues that Johnson II invalidates the residual clause of the pre-Booker career offender guideline. We do not certify it insofar as it argues that Booker is a substantive decision with retroactive effect under Welch.

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871 F.3d 85, 2017 U.S. App. LEXIS 17710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-united-states-ca1-2017.

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