John Watford v. J. Ray Ormond

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 19, 2022
• Docket: 20-6049
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION FILE NAME: 22A0416N.06

Case No. 20-6049

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 19, 2022 DEBORAH S. HUNT, Clerk ) JOHN JOSE WATFORD, ) Petitioner-Appellant, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) KENTUCKY J. RAY ORMOND, Warden, ) Respondent-Appellee. ) OPINION ) )

Before: BATCHELDER, BUSH, and DAVIS, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. In this appeal, which follows a remand for

the district court to decide this issue, John Jose Watford challenges the resulting determination that

his prior conviction for burglary of a dwelling under Florida Statute § 810.02(3) (eff. 1990) was a

“crime of violence” under U.S.S.G. § 4B1.2(a)(2) (eff. Nov. 1, 1997). Finding that it was, we

affirm.

I.

In 1997, Watford and an accomplice committed a series of armed bank robberies in Indiana.

When they were caught, the accomplice confessed, pled guilty, and testified against Watford. A

federal jury in Indiana convicted Watford on three counts of assault with a deadly weapon during

the commission of a bank robbery, 18 U.S.C. § 2113(d), and three counts of carrying and using a

firearm during the commission of a crime of violence, 18 U.S.C. § 924(c). At sentencing, the

district court applied the Guidelines’ career-offender enhancement, U.S.S.G. § 4B1.1(a), because

Watford had two prior convictions for “crimes of violence” under § 4B1.2(a): one in Florida in

1990 for burglary of a dwelling and one in Pennsylvania in 1994 for aggravated assault. This No. 20-6049, Watford v. Ormond

increased Watford’s offense level from 25 to 34, which in turn increased his then-mandatory

sentencing range by 152 to 190 months (about 13 to 16 years) in prison.1 The district court

sentenced Watford to 802 months in prison. Watford appealed his conviction, but not his sentence,

and the Seventh Circuit affirmed. United States v. Watford, 165 F.3d 34, 1998 WL 743924 (7th

Cir. 1998) (table).

Since then, Watford has filed numerous motions, petitions, and requests for various forms

of relief from his conviction and sentence, without success. This appeal stems from his November

2017 petition, pursuant to 28 U.S.C. § 2241, in which he claimed that his 1990 Florida conviction

for burglary of a dwelling no longer qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a),

based on Mathis v. United States, 579 U.S. 500 (2016), and Descamps v. United States, 570 U.S.

254 (2013). The district court denied the petition, holding that Watford had not made any claim

that was actually based on Mathis or Descamps (i.e., a claim that the sentencing court had

incorrectly treated the Florida statute as divisible); that Mathis and Descamps do not address

§ 4B1.2(a); and that Mathis and Descamps, which did not involve any statutory interpretation, are

not retroactively applicable to cases on collateral review, as is required for a § 2241 petition that

challenges the validity of a pre-Booker sentence. Watford v. Ormond, No. 17-cv-322, 2018 WL

1434818, at *2-3 (E.D. Ky., Mar. 22, 2018) (vacated) (relying on Hill v. Masters, 836 F.3d 591,

599-600 (6th Cir. 2016)). The court did not consider whether Watford’s 1990 Florida burglary

conviction satisfied § 4B1.2(a).

1 Under the 1997 Sentencing Guidelines, a criminal history category of VI combined with an offense level of 25 yielded 110 to 137 months in prison, whereas an offense level of 34 yielded 262 to 327 months (i.e., a difference of 152 to 190 months). Also, at that time, § 924(c)(1) imposed a mandatory additional (consecutive) 60-month prison term for a first § 924(c) conviction and an additional 240-month prison term for each subsequent § 924(c) conviction (here, 540 total). The result was a mandatory sentencing range of 802 to 867 months (about 63 to 72 years) in prison.

2 No. 20-6049, Watford v. Ormond

On appeal, the panel granted the Warden’s motion to vacate the district court’s judgment

and remand for a determination of “whether Watford can demonstrate that his prior convictions no

longer qualify as crimes of violence” after Descamps and Mathis. Watford v. Ormond, No. 18-

5328, 2019 WL 4780931, at *1 (6th Cir., July 15, 2019). The panel further ordered that “[t]he

district court’s consideration on remand will be limited to Watford’s 1990 Florida conviction for

burglary of a dwelling and his 1994 Pennsylvania conviction for aggravated assault.” Id.2

On remand, the district court determined that Watford’s 1990 conviction for burglary of a

dwelling, in violation of Florida Statute § 810.02(3), is a “crime of violence” under the residual

clause of U.S.S.G. § 4B1.2(a)(2) (eff. Nov. 1, 1997), based on precedent from this circuit and

others.3 Watford v. Ormond, No. 17-cv-322, 2020 WL 5118037, at *10 (E.D. Ky., Aug. 30, 2020)

(citing United States v. Matchett, 802 F.3d 1185, 1196-97 (11th Cir. 2015) (holding that

§ 810.02(3), the burglary of an unoccupied dwelling, is “a crime of violence under the residual

clause of the career-offender guideline because it ‘involves conduct that presents a serious

potential risk of physical injury to another’” (quoting § 4B1.2(a)(2))); United States v. Ramirez,

708 F.3d 295, 305-07 (1st Cir. 2013) (“In sum, we find that burglary of a dwelling under Florida

law is similar in kind and in risk to the enumerated burglary of a dwelling offense to qualify as a

crime of violence under the Guidelines’ residual clause.”); and United States v. Phillips, 752 F.3d

1047, 1049-51 (6th Cir. 2014) (“[W]e hold that a conviction for third-degree burglary of a structure

2 On remand, the district court determined that Watford had abandoned his challenge to his Pennsylvania aggravated- assault conviction. Watford v. Ormond, No. 17-cv-322, 2020 WL 5118037, at *13 n.18 (E.D. Ky., Aug. 30, 2020). And in this appeal, Watford has expressly waived that issue. Apt. Br. at 15 n.4. 3 The district court acknowledged that the panel’s remand order “merely direct[ed] [it] to make the substantive determination [of] whether Watford’s prior convictions [we]re for ‘crimes of violence,’ something it c[ould] do independently of the procedural issue,” Watford, 2020 WL 5118037 at *4, but nonetheless analyzed the procedural issues at length and concluded, for the same reasons as it had before, that Watford’s claims were not cognizable under § 2241. Id. at *4-10. In resolving this appeal, we need not and do not address this aspect of the district court’s opinion.

3 No. 20-6049, Watford v. Ormond

in Florida is a ‘violent felony’ within the meaning of the ACCA’s residual clause.”). The court

denied Watford’s petition. Id. at *15.

II.

When the district court denies a habeas corpus petition filed under 28 U.S.C. § 2241, our

review is de novo. McCormick v. Butler, 977 F.3d 521, 524 (6th Cir. 2020). And when the district

court concludes that a crime qualifies as a predicate offense for the career-offender designation

under the Guidelines, our review is also de novo. Chambers v. United States, 763 F. App’x 514,

517 (6th Cir. 2019) (citing United States v. Baker, 559 F.3d 443, 450 (6th Cir. 2009)).

In 1998, when the district court sentenced Watford for the bank robberies, the then-

applicable Guidelines’ residual clause established a “crime of violence” as an offense “punishable

by imprisonment for a term exceeding one year” that “involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (eff. Nov. 1, 1997). Watford’s

1990 conviction in Florida was for the burglary of a dwelling, in violation of Florida Statute

§ 810.02(3), a second-degree felony. And the burglary of a dwelling inherently “involves conduct

that presents a serious potential risk of physical injury to another.” See James v. United States,

550 U.S. 192, 203 (2007) (overruled on other grounds) (explaining that a clear “risk of injury arises

. . . from the possibility that some innocent party may appear on the scene while the break-in is

occurring[,] [though] [t]his is just as likely to happen before the defendant succeeds in breaking in

as after.” (quotation marks and citation omitted)); Phillips, 752 F.3d at 1051 (same).

Therefore, Watford’s 1990 conviction for burglary of a dwelling, in violation of Florida

Statute § 810.02(3), was a “crime of violence” under the residual clause of U.S.S.G. § 4B1.2(a)(2)

(eff. Nov. 1, 1997). The sentencing court was correct to apply the career-offender enhancement,

§ 4B1.1(a), and the district court here was correct to deny Watford’s 28 U.S.C. § 2241 petition.

4 No. 20-6049, Watford v. Ormond

In this appeal, Watford filed a pro se brief in which he did not address the residual clause

at all. But we also appointed him an attorney, who raised two very different arguments against the

application of the residual clause, one in the opening brief and the other in the reply brief.

In the new opening brief, Watford effectively concedes that his 1990 Florida burglary

conviction was a crime of violence under the residual clause in that he neither asserts that it was

not nor challenges the district court’s conclusion that it was. Nor does he claim that the residual

clause does not apply. Instead, he argues only that we should judicially estop the Warden from

relying on the residual clause because the U.S. Attorney previously argued that Watford’s 1990

Florida burglary conviction was a crime of violence under the enumerated-offense clause rather

than the residual clause of U.S.S.G. § 4B1.2(a) (eff. Nov. 1, 1997). The U.S. Attorney did so in

2015 in Watford’s § 2255 proceeding before the Seventh Circuit.

In this case, Watford’s prior attorney pressed a similar attack before the district court,

claiming that “the United States made a ‘judicially binding admission’ that [Watford’s] burglary

conviction was an enumerated offense.” Watford, 2020 WL 5118037 at *12. But, as the district

court properly observed, this was factually incorrect: the U.S. Attorney had “stated only what [he]

believed to be the Indiana trial judge’s basis”; he “did not assert that [the government’s] own legal

position was that the enumerated offense clause was the one and only provision under which

Watford’s burglary conviction could qualify.” Id. at *12-13 (“[T]he United States at most asserted

that Watford’s predicate offense qualified as an enumerated offense, not that it did not or could

not qualify under the residual clause.”).

The district court also pointed out that this is an entirely new case from Watford’s § 2255

case in the Seventh Circuit. Judicial admissions are not binding in a different proceeding from the

one in which they were made. See Cadle Co. II v. Gasbusters Prod. I Ltd. P’ship, 441 F. App’x

5 No. 20-6049, Watford v. Ormond

310, 312, 315 (6th Cir. 2011). The Warden was not a party to Watford’s § 2255 motion in the

Seventh Circuit, so he is not bound by the U.S. Attorney’s arguments in that case. See MacDonald

v. Gen. Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997).

Finally, and perhaps most importantly, the proposition at issue—that Watford’s 1990

Florida burglary was not a crime of violence under the Guidelines’ residual clause—is a legal

determination, not a disputable fact or a choice between alternative pleading strategies. While

parties certainly inform courts on the law, they do not decide the law; courts decide the law. See

Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002). And courts do not knowingly and

willingly misstate or misapply the law based on parties’ arguments, stipulations, or waivers. Thus,

we reject Watford’s attorney’s judicial-estoppel (i.e., judicially binding admission) argument.

Alternatively, in his reply brief, Watford newly raises a new argument: that the Seventh

Circuit has held § 4B1.2(a)(2)’s residual clause invalid for sentences imposed when the Guidelines

were still mandatory, Cross v. United States, 892 F.3d 288, 299-306 (7th Cir. 2018); Watford was

sentenced in the Seventh Circuit when the Guidelines were still mandatory; therefore, Watford’s

conviction cannot qualify as a crime of violence under an invalid residual clause.

This is certainly a beguiling argument. And because Watford has raised it for the first time

at this late stage in the process, we have before us no rebuttal from the Warden or the district court.

That is, whether by happenstance or calculated design, Watford has given himself the first, last,

and only word on this argument. That is why we generally do not consider arguments raised for

the first time in a reply brief. See United States v. Carson, 560 F.3d 566, 587 (6th Cir. 2009) (“The

6 No. 20-6049, Watford v. Ormond

appellant cannot raise new issues in a reply brief; he can only respond to arguments raised for the

first time in appellee’s brief.” (editorial marks and citation omitted)).4

Regardless, in the Sixth Circuit, § 4B1.2(a)(2)’s residual clause is valid for sentences

imposed under the mandatory Guidelines.5 Raybon v. United States, 867 F.3d 625, 629-31 (6th

Cir. 2017); Jones v. United States, 832 F. App’x 929, 932-33 (6th Cir. 2020). More to the point,

the Supreme Court has never held § 4B1.2(a)(2)’s residual clause invalid for sentences imposed

under the mandatory Guidelines. See Brown v. United States, 139 S. Ct. 14, 15-16 (2018) (denial

of cert. petition) (Sotomayor, J., dissenting) (“But for petitioners [who were sentenced pursuant to

§ 4B1.2(a)(2)’s residual clause when the Guidelines were still mandatory], this Court has thus far

left the validity of their sentences an open question. The Court’s decision today all but ensures

that the question will never be answered.” (citation omitted)). And a § 2241 petitioner cannot state

a cognizable claim based on a change in circuit court precedent; the petitioner “must identify a

new Supreme Court decision to show that § 2255’s remedy is inadequate or ineffective.” Hueso

v. Barnhart, 948 F.3d 324, 339 (6th Cir. 2020); accord Taylor v. Owens, 990 F.3d 493, 499 (6th

Cir. 2021). Therefore, Watford cannot obtain § 2241 relief based on this argument.

III.

For the forgoing reasons, we AFFIRM the judgment of the district court.

4 This argument also appears to have been forfeited three times over: in the prior appeal, in the district court on remand, and in the opening brief in this appeal. See Owner-Operator Indep. Drivers Assoc., Inc. v. Comerica Bank, 562 F. App’x 312, 326 (6th Cir. 2014) (“The failure to raise an appealable issue in a first appeal stops review in a second appeal.”); Johnson v. Ford Motor Co., 13 F.4th 493, 503 (6th Cir. 2021) (“[A]n argument not raised before the district court is waived on appeal.” (quotation marks omitted)); Doe v. Michigan State Univ., 989 F.3d 418, 425 (6th Cir. 2021) (“[I]t is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” (quotation marks omitted)). 5 And in the Fourth, Tenth, and Eleventh Circuits—only the Seventh Circuit has held it invalid. See Brown v. United States, 139 S. Ct. 14, 15–16 (2018) (denial of cert. petition) (Sotomayor, J., dissenting).