IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Criminal Case No. 11-cr-00433

(Civil Acton No. 16-cv-01436)

UNITED STATES OF AMERICA,

Plaintiff,

v.

ANTHONY C. JONES,

Defendant.

ORDER GRANTING § 2255 MOTION TO VACATE SENTENCE

Blackburn, J. 

This matter is before me on the defendant’s 28 U.S.C. § 2255 Motion To Vacate

Sentence [#65]1 filed June 13, 2016. The government filed a response [#68], and the

defendant filed a reply. I grant the motion.

I. STANDARD OF REVIEW

Under 28 U.S.C. § 2255(a), a federal prisoner claiming the right to be released

on the ground that his federal sentence “was imposed in violation of the Constitution or

laws of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack,” may move to have his sentence vacated, set

aside, or corrected. 

1

 “[#65]” is an example of the convention I use to identify the docket number assigned to a

specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this

convention throughout this order.

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 1 of 11
II. BACKGROUND

On February 24, 2012, the defendant, Anthony Jones, entered a plea of guilty to

possession of a firearm by a previously convicted felon, a violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2). On March 21, 2013, this court sentenced Mr. Jones to a

term of imprisonment of 77 months. 

At sentencing, I found that Mr. Jones was subject to an increased sentence

under §2K2.1(a)(2) of the United States Sentencing Guidelines (USSG). Under USSG

§2K2.1(a)(2), a defendant is subject to a base offense level of 24 “if the defendant

committed any part of the instant offense subsequent to sustaining at least two felony

convictions of either a crime of violence or a controlled substance offense.” At

sentencing, I determined that Mr. Jones had two prior felony convictions for crimes of

violence, vehicular eluding (Colorado, 2006) and felony menacing (Colorado, 2008). 

Application of USSG § 2K2.1(a)(2) increased Mr. Jones’ base offense level by 10 levels,

from 14 to 24. I sentenced Mr. Jones at the bottom of the resulting guideline range to

77 months of imprisonment.

In his present motion, Mr. Jones contends vehicular eluding no longer constitutes

a crime of violence under USSG §2K2.1(a)(2). Accordingly, he asks the court to correct

his sentence by eliminating the increase of the base offense level applied at his original

sentencing under USSG §2K2.1(a)(2).

III. ANALYSIS

USSG § 4B1.2(a) defines the term “crime of violence” as that term is used in

USSG §2K2.1(a)(2): 

. . . any offense under federal or state law, punishable by imprisonment for

a term exceeding one year, that—

2

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 2 of 11
(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of

physical injury to another.

USSG §4B1.2(a) (emphasis added). The italicized phrase in paragraph (2), often

referred to as the residual clause, is at issue in this case. 

Notably, Mr. Jones’ felony conviction for vehicular eluding does not fit the

definition stated in paragraph one of USSG §4B1.2(a) and is not one of the crimes

enumerated specifically in paragraph two of USSG §4B1.2(a). Rather, a conviction for

vehicular eluding falls within USSG §4B1.2(a)(2) only under the residual clause.

18 U.S.C. § 924(e)(2)(B)(ii) contains a residual clause that is identical to the

residual clause of USSG §4B1.2(a)(2). Section 924(e) is part of the Armed Career

Criminal Act (ACCA). In Johnson v. U.S., the Supreme Court of the United States held

that the imposition of an enhanced sentence under the residual clause of 

§ 924(e)(2)(B)(ii) violates the due process guarantee of the Constitution of the United

States. ___ U.S. ___, ___, 135 S.Ct. 2551, 2563 (2015). That is true, the Court held,

because the residual clause is unconstitutionally vague. Id. at ___, 135 S.Ct. at 2557. 

The rule in Johnson applies retroactively. Welch v. U.S., ___ U.S. ___, 136 S.Ct.

1257, 1265 (2016). 

Following Johnson, but prior to Welch, the United States Court of Appeals for

the Tenth Circuit held that the residual clause of USSG §4B1.2(a)(2) is void for

vagueness. U.S. v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (“Given our reliance

on the ACCA for guidance in interpreting §4B1.2, it stretches credulity to say that we

could apply the residual clause of the Guidelines in a way that is constitutional, when

3

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 3 of 11
courts cannot do so in the context of the ACCA.”). Given this precedent, Mr. Jones now

contends his sentence must be corrected to the extent his sentence is based,

improperly, on the residual clause of USSG §4B1.2(a)(2).

In its response [#68], the government contends the motion of Mr. Jones must be

denied because: (1) the holding in Johnson does not apply retroactively to the residual

clause of § 4B1.2(a); (2) the motion is untimely; and (3) the claim of Mr. Jones has been

procedurally defaulted. The government concedes that, if its procedural arguments fail,

Mr. Jones must be re-sentenced. Response [#68], p. 12.

A. RETROACTIVITY

The government contends Mr. Jones has no cause of action because the holding

in Johnson is not applicable retroactively to the residual clause of USSG § 4B1.2(a). 

The government contends that the new right recognized in Johnson is limited to the

ACCA and, thus, does not involve the right asserted by Mr. Jones in his motion, the

invalidity of the residual clause in USSG § 4B1.2(a)(2).

In Johnson, the Supreme Court recognized a new right concerning the

application of the residual clause of the ACCA. In Welch, the Supreme Court explicitly

made that right applicable retroactively. I find that the new right recognized in Johnson

and the retroactivity recognized in Welch are not strictly cabined to the residual clause

of the ACCA. The constitutional issues addressed in Johnson are issues inherent in

the specific language used in the residual clause of the ACCA. In Johnson, the

Supreme court announced a new substantive rule concerning that specific language. 

The same language is used in the residual clause of USSG §4B1.2(a)(2). The motion

of Mr. Jones concerns the same language that was at issue in Johnson. In the context

4

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 4 of 11
of USSG §4B1.2(a)(2), that language has the same effect – a sentence enhancement – 

as it did in Johnson. Effectively, Mr. Jones now asserts the right newly recognized in

Johnson and made retroactively applicable in Welch.

Applying the retroactivity principles discussed in Teague v. Lane, 489 U.S. 288

(1989), Welch, ___ U.S. at ___, 136 S.Ct. at 1264 - 1265, and related cases, I find that

the holding in Johnson is retroactively applicable to the residual clause of USSG 

§4B1.2(a)(2). Under Teague, as a general matter, “new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the new

rules are announced.” Teague, 489 U.S. at 310. Teague and its progeny recognize two

categories of decisions which fall outside of this general rule. First, new substantive

rules generally apply retroactively. New substantive rules apply retroactively because

they necessarily carry a significant risk that a defendant stands convicted of an act that

the law does not make criminal or faces a punishment that the law cannot impose upon

him. Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (internal quotations and citations

omitted). A rule is substantive if it addresses “a substantive categorical guarante[e]

accorded by the Constitution, such as a rule ‘prohibiting a certain category of

punishment for a class of defendants because of their status or offense.” Saffle, 494

U.S. at 494–95 (internal quotations and citations omitted). 

Second, new watershed rules of criminal procedure, which are procedural rules

implicating the fundamental fairness and accuracy of the criminal proceeding, will also

have retroactive effect. Welch, ___ U.S. at ___, 136 S.Ct. at 1264. Retroactivity is

applicable only to a small set of watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding. “That a new procedural

5

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 5 of 11
rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one without

which the likelihood of an accurate conviction is seriously diminished. This class of rules

is extremely narrow, and it is unlikely that any has yet to emerge.” Schriro, 542 U.S. at

352 (internal quotations and citations omitted). “Although the precise contours of this

exception may be difficult to discern, we have usually cited Gideon v. Wainwright, 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), holding that a defendant has the right to

be represented by counsel in all criminal trials for serious offenses, to illustrate the type

of rule coming within the exception.” Saffle, 494 U.S. at 495.

Applying the holdings in Johnson to the residual clause of USSG §4B1.2(a)(2), I

conclude that the rule in Johnson applies retroactively. In Welch, the Court addressed

the retroactivity of the Johnson rule in the context of the ACCA. The Welch court said

Johnson is “a substantive decision and so has retroactive effect under Teague in

cases on collateral review.” Welch, ___ U.S. at ___, 136 S.Ct. at 1265. In addition, the

Welch Court noted that “[b]y striking down the residual clause as void for vagueness,

Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the

range of conduct or the class of persons that the [Act] punishes.’” Id. (quoting Schriro,

542 U.S. at 353). 

Similarly, striking down the residual clause of USSG §4B1.2(a)(2), applying the

Johnson rule, alters the class of persons for which the system present in the guidelines

leads to a recommended enhanced sentence to prison. When the Johnson rule is

applied to the residual clause of USSG §4B1.2(a)(2), some crimes no longer will fit the

definition of crime of violence, as used in the guidelines. The ineluctable result will be

that some defendants no longer will be subject to a sentence enhancement based on

6

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 6 of 11
prior conviction for a crime of violence. In this context, the Johnson rule prohibits “a

certain category of punishment for a class of defendants because of their status or

offense.” Saffle, 494 U.S. at 494–95 (internal quotations and citations omitted). The

substantive rule in Johnson applies retroactively to the residual clause of USSG 

§ 4B1.2(a)(2).

The government contends the Johnson rule, in the context of the residual clause

of USSG §4B1.2(a)(2), is a non-retroactive procedural rule. This is true, the

government asserts, because application of the residual clause of USSG §4B1.2(a)(2)

results in an incorrect recommended sentence, under the guidelines, but it does not

authorize a sentence which constitutes an inapplicable mandatory minimum nor does it

produce a higher statutory maximum sentence. These upper and lower limits are

controlled, the government notes, by statute and not by the guidelines. The guidelines

provide a framework for the exercise of discretion within the sentencing range provided

by statute. 

I disagree with this analysis. The United States Sentencing Guidelines are more

than a mere suggestion about the proper sentence. “The federal system adopts

procedural measures intended to make the Sentencing Guidelines the lodestone of

sentencing.” Peugh v. U.S., ___ U.S. ___, ___ 133 S.Ct. 2072, 2084 (2013)

(retrospective increase in the Guidelines range applicable to a defendant creates a

sufficient risk of a higher sentence to constitute an ex post facto violation). “The

post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that

sentencing decisions are anchored by the Guidelines and that they remain a meaningful

benchmark through the process of appellate review.” Id. at 2083. In Peugh, as here,

7

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 7 of 11
the effect of the guidelines on a sentence to prison generally is highly significant and,

thus, substantive. 

B. TIMELINESS

Section 2255 includes a one year period of limitation.

A 1-year period of limitation shall apply to a motion under this section. The

limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

* * *

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review . . . .

28 U.S.C. § 2255(f). 

The conviction at issue in this case became final, at the latest, in March 2014.

The present § 2255 motion was filed on June 13, 2016, more than one year after the

conviction became final. On this basis, the government contends the § 2255 motion of

Mr. Jones was not timely filed. Mr. Jones relies on paragraph (3) of § 2255(f), arguing

that the right he asserts in his motion, the invalidity of the residual clause of USSG §

4B1.2, was newly recognized by the Supreme Court in Johnson and made applicable

retroactively to cases on collateral review in Welch. Johnson was decided on June 26,

2015. 

The present motion was filed on June 13, 2016, within one year of the holding in

Johnson. The right at issue in the present motion was newly recognized by the

Supreme Court in Johnson and made applicable retroactively to cases on collateral

review in Welch. Thus, the motion was timely filed.

C. PROCEDURAL DEFAULT

8

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 8 of 11
Generally, if a defendant fails to raise an issue on direct appeal, he is barred

from raising it in a § 2255 motion “unless he can show cause excusing his procedural

default and actual prejudice resulting from the errors of which he complains, or can

show that a fundamental miscarriage of justice will occur if his claim is not addressed. ”

United States v. Hollis, 552 F.3d 1191, 1193–94 (10th Cir. 2009) (citation and internal

quotation omitted). In his direct appeal, Mr. Jones did not contend that the residual

clause of USSG §4B1.2 is unconstitutional. On this basis, the government contends Mr.

Jones now is barred from raising this issue on collateral review under § 2255. Notably,

the procedural default doctrine does not bar a defendant from raising a claim for the first

time on collateral review when “the factual or legal basis for a claim was not reasonably

available to counsel” at the time a direct appeal was or could have been filed. Murray

v. Carrier, 477 U.S. 478, 488 (1986). When the factual or legal basis for a claim was

not reasonably available, but later becomes available, that change in circumstances can

constitute cause for a procedural default. 

Prior to Johnson, the argument asserted by Mr. Jones in his present motion was

inherently hopeless, absent an overruling by the Supreme Court of its extant precedent. 

For example, in Sykes v. U.S., the Supreme Court held that the residual clause “states

an intelligible principle and provides guidance that allows a person to conform his or her

conduct to the law.” 564 U.S. 1, 15 (2011). Sykes was decided less than two years

before Mr. Jones filed his notice of appeal [#42]. Johnson, of course, altered this

landscape significantly. I find that Mr. Jones has shown cause for his procedural default

because the legal basis for his present claim was not reasonably available to him when

he filed his direct appeal. Further, the sentence enhancement imposed on Mr. Jones

9

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 9 of 11
based on the residual clause of USSG §4B1.2(a)(2) was substantial. That sentence

enhancement constitutes prejudice for the purpose of addressing the procedural default

issue. Thus, the § 2255 motion of Mr. Jones is not barred by procedural default.

D. RE-SENTENCING 

Applying the holding in Johnson, the imposition of an enhanced sentence under

the residual clause of USSG § §4B1.2(a)(2) violates the due process guarantee of the

Constitution of the United States. The sentence imposed on Mr. Jones was an

enhanced sentence based on the residual clause of USSG §4B1.2(a)(2). Mr. Jones is

serving a sentence that is “in excess of the maximum authorized by law.” 28. U.S.C. §

2255(a). Therefore, he is entitled to relief under § 2255. The sentence enhancement

imposed on Mr. Jones under the residual clause of USSG §4B1.2(a)(2) must be

vacated, and Mr. Jones must be re-sentenced. At re-sentencing, Mr. Jones will not be

subject to sentence enhancement under the residual clause of USSG §4B1.2(a)(2).

IV. CONCLUSION & ORDERS

The holding in Johnson is applicable retroactively to the residual clause of

USSG §4B1.2(a)(2). The motion [#65] of Mr. Jones was filed timely and the claim he

raises was not procedurally defaulted. For the reasons specified in this order, Mr.

Jones is entitled to re-sentencing.

THEREFORE, IT IS ORDERED as follows:

1. That the defendant’s 28 U.S.C. § 2255 Motion To Vacate Sentence [#65] is

granted on the terms stated in this order;

2. That the sentence imposed on the defendant, Anthony C. Jones, is vacated

pending re-sentencing;

3. That counsel shall contact the court’s administrative assistant at (303) 335-

10

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 10 of 11
2350 on Monday, December 12, 2016, at 10:00 a.m. (MST), to set an expedited

hearing for re-sentencing of the defendant;

4. That counsel for government shall arrange the conference call necessary to

facilitate this telephone conference; 

5. That the defendant shall be present at the re-sentencing hearing;

6. That the probation department shall prepare and file a Johnson resentencing report approximately one week before the expedited re-sentencing hearing;

and

7. That as soon as practicable, counsel for the government shall arrange for

service of this order on the U.S. Probation Office, the U.S. Marshals Service, and the

Bureau of Prisons.

Dated December 8, 2016, at Denver, Colorado.

BY THE COURT: 

11

Case 1:11-cr-00433-REB Document 70 Filed 12/08/16 USDC Colorado Page 11 of 11