United States v. Savage (231 F. Supp. 3d 542, 2017)

United States District Court for the Central District of California 2017-01-12

Crimes and Criminal Procedure Food and Drugs

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Full opinion text

PROCEEDINGS (in chambers): Order Denying Habeas Motion (CV #1 and CR #27) for Lack of Merit; Directing Entry of Separate Final Judgment; Directing Separate Certificate of Appealability Ruling; Terminating and Closing the Civil Case

HONORABLE VALERIE BAKER FAIRBANK, SENIOR UNITED STATES DISTRICT JUDGE

Represented by counsel, federal prisoner James Lewis Savage (“petitioner”) initiated this action for a writ of habeas corpus pursuant to 28 U.S.C. section 2255. The Court has reviewed the habeas corpus motion and accompanying memorandum, the respondent government’s opposition brief, the petitioner’s reply brief, the underlying federal indictments and judgments of conviction, and the applicable law. For the reasons that follow, the Court will deny the habeas petition.

To begin with, the Court finds that the parties’ briefs on both sides were excellent. Preliminarily, the Court agrees with petitioner that his habeas petition is not barred by the waiver of collateral-attack rights in his plea agreement, is not procedurally defaulted, and is not untimely. See Petitioner’s Opening Memorandum at 20-21 and Petitioner’s Reply (Doc 18) at 14-36. The Court further agrees with petitioner that the residual clause of the Career Offender Guideline’s definitional section, U.S.S.G. section 4B1.2(a), must be stricken as unconstitutionally vague after Johnson v. United States (U.S. 2015).

The Court will then determine, however, that the petition lacks merit because Savage’s current conviction for federal unarmed bank robbery and his past convictions for federal unarmed and armed bank robbery all constitute “crimes of violence” by their nature for purposes of the Career Offender Guideline, U.S.S.G. section 4B1 (either with or without the application of Application Note (“Note”) 1). The Court approves and adopts the government’s opposition brief in this regard, see Doc 13 at 22-42. Consequently, the Court will conclude that in determining Savage’s term of imprisonment, it was appropriate to begin with the higher range recommended for career offenders as this Court did in 2008. In other words, petitioner has failed to show that his career-offender sentence is the result of constitutional error or that it worked a manifest injustice, which means that he has not established a basis for federal habeas relief from his sentence. Accordingly, the Court will enter final judgment in favor of the respondent in the civil (habeas) case. The Court will, however, grant petitioner a certificate of appealability on all merits issues that it resolved adversely to him.

On February 29, 2008, an indictment issued charging him with one count of unarmed bank robbery in violation of 18 U.S.C. section 2113(a). See LA CR 08-00258-VBF Documents (“CR Docs”) 8-10. The federal statute on Bank Robbery and Incidental Crimes, 18 U.S.C; § 2113, provides in part as follows:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

Whoever enters of attempts to enter any bank, ... with intent to commit in such bank ... any felony affecting such bank ... and in violation of any statute of the United States, or any larceny

—Shall be fined under this title or imprisoned not more than twenty years, or both.

According to the Supreme Court, “subsection (a) contains no explicit mens rea requirement of any kind.” Carter v. U.S., 530 U.S. 255, 267, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). “Properly applied, however, the presumption in favor of scienter demands ... that we read subsection (a) as requiring proof of general intent — that is, that the defendant possessed knowledge with respect to ... the taking of property of another by force and violence or intimidation.” Id. at 268, 120 S.Ct. 2159.

The subsection specifically pertaining to armed Federal Bank Robbery further states as follows:

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

18 U.S.C. section 2113(d) (emphasis added).

SAVAGE’S PLEA AGREEMENT AND PRE-SENTENCE REPORT

On June 5, 2008, the parties filed their written plea agreement (CR Doc 18). On June 12, 2008, the Court conducted a plea colloquy and accepted petitioner’s guilty plea to one count of unarmed bank robbery, see CR Doc 20 (Minutes). According to the plea agreement and Pre-Sentence Report (“PSR”), petitioner walked into a Bank of America in West Hollywood, California, on February 14, 2008 with a dark sweater wrapped around his left hand, approached a teller, and demanded cash. See PSR ¶ 11. The teller recounted that she was “fearful that [Savage] may have a gun under his sweater” and thus complied with his demand, giving him $3,775 in cash from her drawer. See PSR ¶ 12; see also generally U.S. v. Gordon, 642 F.3d 596, 598 (7th Cir. 2011) (“Intimidation exists when a bank robber’s words and actions would cause an ordinary person to feel threatened, by giving rise to a reasonable fear that resistance or defiance will be met with force.”), cited by U.S. v. Cunningham, 2016 WL 687902, *2 (N.D. Ill. Feb. 19, 2016). Police apprehended petitioner shortly after he left the bank and recovered the money and the sweater from him, but did not recover a gun, see PSR ¶ 12.

The agreement contained a provision waiving petitioner’s right to “bring a post-conviction collateral attack on the conviction or sentence ... except ... based on ... an explicitly retroactive change in the applicable Sentencing Guidelines, sentencing statutes, or statutes of conviction.” See Pet Exhibits (“Ex”) C ¶ 17. In return, the government agreed to abide by the sentencing stipulation in the agreement and recommend that the Court subtract offense levels to reflect acceptance of responsibility. See Pet Ex C ¶ 15.

SAVAGE’S SENTENCE AND THE CAREER-OFFENDER GUIDELINE

The Ninth Circuit explains that the Career Offender Guideline “increases a defendant’s advisory sentencing range if, as relevant here, the defendant has two or more prior convictions for a ‘crime of violence.’” U.S. v. McCandless, 841 F.3d 819, 821 (9th Cir. 2016) (per curiam) (quoting U.S.S.G. section 4B1.1). Prior to sentencing, the U.S. Probation Office recommended that this Court determine that Savage qualified as a career offender under U.S.S.G. 4B1.1 because he had prior convictions for at least two crimes qualifying as crimes of violence as defined by the residual clause of the Career Offender Guideline, U.S.S.G. § 4B1.2(a).

At that time, there was no Supreme Court or Ninth Circuit precedent holding or suggesting that the residual clause of the Career Offender Guideline was void for vagueness or otherwise constitutionally infirm. Accordingly, the Court adopted Probation’s recommendation, and used as its starting point the range of imprisonment terms that the Guidelines recommended for career offenders. (Savage had nine criminal-history points. Absent the career-offender designation, he would have had been in criminal history category IV; the career-offender designation placed him in criminal history category VI, the highest category. See PSR ¶¶ 54-56.

When petitioner Savage was sentenced on September 25, 2008, the Career Offender Guideline’s main sentence-enhancement provision stated in pertinent part as follows:

(a) a defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

(b) Except as provided in subsection (c), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from this table in this subsection shall apply. A career offender’s criminal history category in every case under this subsection shall be Category VI.

* If an adjustment from section 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment.

U.S.S.G. § 4Bl.l(a) and (b) (2008). Guideline 4Bl.l(e) has no application to petitioner’s case, because it governs career offenders whose instant conviction is for a violation of 18 U.S.C. section 924(c) or 929(a). Application Note 1 to Guideline 4B1.1 provides that the term “crime of violence” is defined in Guideline 4B1.2.

In turn, the Career Offender Guideline in effect on Savage’s sentencing date defined a “crime of violence” for this purpose as any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that — (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 risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (2008) (italics added). The italicized language is the residual clause of the Career Offender Guideline. “While the Guidelines do not define the term ‘physical force’ under the career offender provision, because of the definitional similarities between a violent felony under the ACCA and a crime of violence under section 4B1.2,” it is appropriate to use the ACCA’s definition of “physical force” in Guideline section 4B1.2 cases. U.S. v. John Haldemann, No. 15-13873, 664 Fed.Appx. 820, 822 n.2, 2016 WL 6595936, *1 n.2 (11th Cir. Nov. 8, 2016) (per curiam) (Tjoflat, Jordan, Julie Carnes).

The following are petitioner’s prior convictions which this Court found to be violent felonies for purposes of the Career Offender Guideline:

—the instant February 14, 2008 unarmed bank robbery in violation of 18 U.S.C. § 2113(a), to which he pled guilty pursuant to a written plea agreement, and for which the undersigned sentenced him to 169 months in prison on September 25, 2008;

—two unarmed bank robberies in violation of 18 U.S.C. § 2113(a) for which he was convicted in C.D. Cal. Case No. LA CR 87-00036-JSL on July 22, 1987 and sentenced to five years in prison;

—an armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) for which he was convicted in C.D. Cal. Case No. LA CR 90-01008-K-l on May 6, 1991 and sentenced to 18 years in prison

See PSR ¶¶ 27-29, 42-46, and 47-49. During each of four bank robberies committed in September-October 1990, petitioner displayed a gun; during one of those 1990 robberies, he pointed a gun at a teller. See PSR ¶ 49.

In calculating Savage’s criminal history, this Court followed the Probation Office’s recommendation and did not count numerous state-court convictions because they were “outside of the time frame countable by the Guidelines” per U.S.S.G. section 4A1.2(e)(3), see PSR ¶ 33. Guideline section 4A1.2(e), entitled Definitions and Instructions for Computing Criminal History— Applicable Time Period, provides in its entirety as follows:

(1) any prior sentence of imprisonment exceeding 1 year and 1 month that was imposed within 15 years of the defendant’s commencement of the instant offense is counted. Also counted is any prior sentence of imprisonment exceeding 1 year and 1 month, whenever imposed, that resulted in [him] being incarcerated during any part of such 15-year period.

(2) Any other prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense is counted.

(3) Any prior sentence not within the time periods specified above is not counted.

(4) The applicable time period for certain offenses committed prior to age eighteen is governed by section 4A1.2(d)(2).

The convictions that were not held against Savage in calculating his criminal history were these:

a 1972 conviction for misdemeanor grand theft (snatching a purse from two women separately walking down the street) committed in December 1971, when Savage was 23 years old, PSR ¶ 34;

a 1977 conviction for second-degree burglary of an apartment that Savage committed at age 28, for which he served 180 days in county jail, PSR ¶ 35;

a 1980 robbery perpetrated by pushing a 69-year-old woman down on the sidewalk and taking her purse, which Savage committed at age 31, but for which no sentence is noted, PSR ¶ 36;

1984 convictions for two robberies, an attempted robbery, and taking a vehicle without consent that Savage committed on December 23, 1983, at age 36, for which he received six years in prison, PSR ¶ 38;

1984 convictions for “a series of robberies” which the 36-year-old Savage committed “in bank parking lots,, involving physical assaults on depositors” who Savage told police were “in their 40s and 50s, with “one man [who] was much older”, for which no sentence is listed, PSR ¶ 39; and a 1987 Malibu Municipal Court conviction for driving under the influence, committed when Savage was 39 years old, for which he served one day in jail and 36 months on probation, PSR ¶ 40.

Application of the career-offender guideline resulted in a recommended term of imprisonment of 151 to 188 months (low end 12 years 7 months to high end of 15 years 8 months). See PSR ¶¶ 28 and 81.

After considering petitioner’s sentencing memo (Crim Doc 21), this Court on September 25, 2008 held a sentencing hearing (Crim Doc 24), adopted and followed the PSR, and issued a Judgment and Commitment Order (Crim Doc 26) sentencing petitioner to 169 months (14 years and one month) in federal prison followed by three years of supervised release. That term of imprisonment was precisely in the middle of the range recommended by the Career Offender Guideline, as recommended in petitioner’s plea agreement.

Savage did not pursue a direct appeal of his conviction or sentence, and he did not file any habeas petitions directed at the instant conviction or sentence before the instant 2255 petition.

INSTANT HABEAS PROCEEDING

On June 2, 2016, Deputy FPD Mircheff entered an appearance on behalf of petitioner (Crim Doc 26) and filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CR Doc 27 or CV Doc 1), as well as a copy of petitioner’s sealed presentence report (CR Doc 28 or CV Doc 4). Through counsel, Savage contends that pursuant to Johnson v. U.S., 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his sentence was imposed in violation of the U.S. Constitution. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was void because it was unconstitutionally vague. After the ACCA enumerated crimes that always constitute violent felonies, its residual clause defined a “violent felony” to further include any other federal or state felony, not enumerated, “that otherwise involves conduct that presents a serious potential risk of physical injury of another.”

Specifically, Savage contends that his instant conviction for unarmed bank robbery in violation of 21 U.S.C. section 2113(a), which the Court found to be a crime of violence triggering application of the Career Offender Sentencing Guideline, is no longer a crime of violence after Johnson. Savage further contends that his 1987 federal conviction for unarmed bank robbery and his 1991 conviction for armed bank robbery likewise are no longer crimes of violence after Johnson. See Petition at 3-20.

By Order issued July 13, 2016, this Court issued an order scheduling briefs (CV Doc 6 at 2). On August 18, 2016, AUSA Riordan entered an appearance on behalf of respondent (CV Doc 7).

On August 24, 2016, the government filed a motion to stay briefing and consideration of Savage’s section 2255 habe-as motion pending the Supreme Court’s decision in Beckles, No. 15-8544 (CV Doc 8). By Order issued October 11, 2016 (CV Doc 16), this Court denied the government’s motion to stay.

The government first contends that the Court should dismiss Savage’s Johnson-based habeas claim with prejudice on three grounds without reaching the merits of that claim. First, the government contends that the claim is barred by the collateral-attack waiver in his plea agreement. See Doc 13 (Gov Opp to 2255) at 2 and 5-10; but see Doc 1 (Habeas Motion) at 28-29. Second, the government contends that Savage procedurally defaulted that claim by failing to assert it at sentencing or on direct appeal to the Ninth Circuit. See Doc 13 (Gov Opp to 2255) at 2 and 10-13; but see Doc 18 (Savage Reply) at 14-22. Third, the government contends that the claim is untimely under AEDPA because Savage did not assert it until more than a year after his conviction became final. See Doc 13 (Gov Opp to 2255) at 2 and 13-22; but see Doc 18 (Savage Reply) at 23-36.

Alternatively, the government contends that the Court should deny Savage’s Johnson claim for lack of merit. According to the government, even after Johnson, both Savage’s instant federal conviction for unarmed bank robbery and his prior federal bank-robbery convictions are crimes of violence, triggering the application of the Career Offender Guideline. See Doc 13 (Gov Opp) at 2 and 22-42; but see Doc 18 (Reply) at 36-44.

LEGAL STANDARD: HABEAS CORPUS RELIEF UNDER 28 U.S.C. SECTION 2255

A prisoner who is in custody under sentence of a federal court who wishes to collaterally attack the validity of his conviction or sentence must do so by filing a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. section 2255 in the court that sentenced him, and petitioner has done so here. Under section 2255(a), a sentencing court is authorized to grant habeas relief if it concludes that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”

To obtain relief under Section 2255, “a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Frady, 456 U.S. at 166, 102 S.Ct. 1584. “If a petitioner does not allege lack of jurisdiction or constitutional error, an error of law will not provide a basis for habeas relief unless that error resulted in a complete miscarriage of justice or [resulted] in a proceeding inconsistent with the rudimentary demands of fair procedure.” Hamilton v. U.S., 67 F.3d 761, 763-64 (9th Cir. 1995).

If the court determines that a petitioner has shown his entitlement to relief under section 2255, it must “vacate and set the judgment aside” and “then do one of four things: ‘discharge the prisoner or re-sentence him or grant a new trial or correct the sentence ....’” U.S. v. Benard, 2016 WL 5393939, *1 (N.D. Cal. Sept. 27, 2016) (quoting section 2255(b) and citing U.S. v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999)).

THE SUPREME COURT’S HOLDING IN Johnson v. U.S. (2015)

Petitioner Savage challenges the sentence that this Court imposed on September 25, 2008 for his February 14, 2008 commission of unarmed bank robbery. Petitioner urges the Court to extend the Supreme Court’s holding in Johnson v. U.S., 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) from the statutory sentence-enhancement context to the Guideline sentence-enhancement context. In Johnson, the Supreme Court held that the residual clause in the Armed Career Criminal Act (“ACCA”) violates the Constitution’s Due Process prohibition on vague criminal laws, see 135 S.Ct. at 2563. The ACCA defines “violent felony” as any crime

punishable by imprisonment for a term exceeding one year, or any act ... that — (I) has as an element the use, attempted use, or threatened sue of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....

18 U.S.C. section 924(e)(2)(B) (emphasis added). The italicized thirteen words are referred to as the ACCA’s residual clause. Johnson held that the ACCA’s residual clause “fails to give ordinary people fair notice of the conduct it punishes” and “invites arbitrary enforcement,” thereby “violating] the first essential of due process.” Johnson, 135 S.Ct. at 2556-57 (citation omitted). The Supreme Court emphasized that “[t]he requirements of fair notice and enforcement standards ‘apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.’ ” See Benard, 2016 WL 5393939 at *1 (N.D. Cal. Sept. 27, 2016) (quoting Johnson, 135 S.Ct. at 2557 (citation omitted)). “For these reasons, Johnson found that ‘increasing a defendant’s sentence under the [ACCA statute’s residual] clause denies due process of law.’ ” Id.

Petitioner contends that he is entitled to habeas relief because the Sentencing Guideline provision that this Court applied to enhance his sentence — the residual clause of the Career Offender Guideline, U.S.S.G. 4B1.2 — has the same definition of a “crime of violence” that the Supreme Court determined was unconstitutionally vague in the ACCA statute’s residual clause. Savage’s sentence for the instant unarmed bank robbery was enhanced because the Court determined that prior federal convictions for unarmed and armed bank robbery constituted crimes of violence under the Guideline’s residual clause, U.S.S.G. 4B1.2(a).

“Although the residual clause in U.S.S.G. section 4B1.2(a)(2)” — the Career Offender Guideline’s residual clause — “is identical to the residual clause in the ACCA (18 U.S.C. section 924(e)(2)(B)), Johnson did not expressly address ... the U.S.S.G.” Benard, 2016 WL 5393939 at *2. However, as Judge Illston of the Northern District has pointed out, “the Ninth Circuit makes ’no distinction between the terms ‘violent felony’ [as defined in the ACCA] and ‘crime of violence’ [as defined in section 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clause[s].” Benard, 2016 WL 5393939 at *2 (quoting U.S. v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (alterations in original Spencer)).

In other courts, the federal government has conceded that Johnson’s holding with regard to the residual clause of the ACCA logically applies to the identically worded residual clause of the Career Offender Guideline, at least for cases on direct appeal. See Benard, 2016 WL 5393939 at *2. The government here, however, does not concede that point. The government also does not concede the further proposition that Johnson should be applied retroactively to cases on collateral review.

THE SUPREME COURT’S HOLDING IN Welch v. U.S. (2016)

Less than a year after the Supreme Court issued Johnson, the Supreme Court issued a decision holding that Johnson applies retroactively to collateral attacks on ACCA-enhanced sentences. See Welch v. U.S. (2016). But Welch left open two important questions that this Court will need to decide below: (1) whether Johnson’s holding applies not only to the residual clause of the ACCA but also to the identically worded residual clause of the Career Offender Sentencing Guideline, U.S.S.G. sections 4B1.1 and 4B1.2, and (2) if so, whether Johnson applies retroactively in the context of collateral attacks on Career Offender Guideline-enhanced sentences.

ANALYSIS OF Savage’s Section 2255 Habeas Petition — NON-MERITS ISSUES

1. Under U.S. v. Torres (9th Cir. 2016), the Collateral-Attack Waiver in Savage’s Plea Agreement Does Not Bar this Habeas Motion Because the Motion Contends His Sentence Was “Illegal”

As noted above, Savage’s plea agreement contained a provision stating that Savage

gives up any right to bring a post-conviction collateral attack on the conviction or sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel, a claim of newly discovered evidence, or any explicitly retroactive change in the applicable Sentencing Guidelines, sentencing statutes, or statutes of conviction.

Petition Exhibit (“Ex”) C ¶ 17. It is undisputed that Savage is not collaterally attacking his sentence on the basis of ineffective assistance of counsel or newly discovered evidence. Nor does Savage allege that he entered into the plea in a manner that was not free, voluntary, knowing, and intelligent. Nor is Savage arguing that there has been an explicitly retroactive change in the statutes of conviction or any applicable sentencing statutes.

The Court need not consider the alternative argument that Johnson (U.S. 2015) or Welch (U.S. 2016) or other binding post-sentencing decisional law effected an “explicitly retroactive change in the applicable Sentencing Guidelines ....”, which under the plea agreement’s waiver provision itself would have allowed Savage to collaterally' attack his sentence on that basis.

The government correctly notes that under Ninth Circuit precedent, a criminal convict’s knowing and voluntary waiver of his right to collaterally attack his conviction or sentence is generally enforceable and must be enforced. See Doc 13 (Gov Opp to 2255) at 6 (citing U.S. v. Reves, 774 F.3d 562, 566 (9th Cir. 2014) and out-of-circuit decisions). The government also points to Ninth Circuit precedent stating that the strong public policy in favor of plea agreements and their enforcement is advanced by enforcement of plea-agreement waivers of collateral-attack rights. See Doc 13 (Gov Opp to 2255) at 6 (citing U.S. v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990)); see also U.S. v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000) (stating that waivers of statutory appellate rights and statutory collateral-attack rights “usefully preserve the finality of judgments and sentences imposed pursuant to valid plea agreements”).

Subsequent changes in the law which do not render the sentence unconstitutional, do not undercut the validity and enforceability of a collateral-attack waiver, see U.S. v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007), and a collateral-attack waiver will not be invalidated merely because unanticipated events occur after sentencing. See, e.g., U.S. v. Eastwood, 148 Fed.Appx. 589 (9th Cir. 2006) (waiver enforceable and resentencing not warranted, despite changes in sentencing law brought about by Booker holding that Guidelines were merely advisory rather than binding); U.S. v. Morgan, 406 F.3d 135 (2d Cir. 2005) (same); Adesina v. U.S., 461 F.Supp.2d 90, 96 (E.D.N.Y. 2006) (“Under the well-settled law of the Second Circuit, a valid waiver of the right to appeal or otherwise challenge a sentence is enforceable as to subsequent changes in the law, even as to constitutional arguments, that were not anticipated at the time the waiver was made.”).

“However, ... [plea-agreement] waivers” of appellate or collateral-attack rights “are not ironclad.” U.S. v. Terrell, 217 F.Supp.3d 1277, 1284, 2016 WL 6582993, *6 (E.D. Wash. Nov. 4, 2016). “In the Ninth Circuit, a valid waiver ‘will not apply’ if ‘the sentence violates the law.’ ” Terrell, 217 F.Supp.3d at 1283-84, 2016 WL 6582993 at *6 (quoting Bibler, 495 F.3d at 624). For this purpose, “[a] sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution.” Bibler, 495 F.3d at 624.

“The Ninth Circuit has held that if Johnson by implication nullifies the residual clause of the Career Offender Guideline” — just as Johnson expressly nullified the identically worded residual clause of the ACCA statute — “sentences rendered pursuant to that clause are likely unconstitutional and would be ‘illegal,’ and thus waivers in plea agreements cannot bar collateral attacks on that basis.” Terrell, 217 F.Supp.3d at 1284, 2016 WL 6582993 at *6 (citing U.S. v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016)). Contra U.S. v. Mitchell, 657 Fed.Appx. 605 (7th Cir. 2016) (by entering plea agreement, defendant validly waived his right to attack any non-jurisdictional defect occurring before the entry of the plea, including the argument that federal armed bank robbery was not a violent crime for purposes of sentencing enhancement).

Accordingly, our Circuit’s decision in Torres prevents this Court from joining the district courts that have held that a collateral-attack waiver in a habeas petitioner’s plea agreement requires the dismissal of habeas Due Process claims based on Johnson (U.S. 2015) and Welch (U.S. 2016). See Doc 13 (Gov Opp) at 7 (citing, inter alia, U.S. v. Inoshita, No. 15-0015-JMS, 2016 WL 2977237, *4 (D. Haw. May 20, 2016) (“In sum, [petitioner’s waiver encompasses the right to file a section 2255 motion, except under circumstances not applicable in this case, and he made the waiver knowingly and voluntarily. Thus, [the] waiver is valid.”), and Bradley v. U.S., No. 2:15-cv-02666, 2016 WL 626572, *4 (W.D. Tenn. Feb. 16, 2016) (“The Court finds that Bradley’s waiver of the right to collateral review in his plea agreement was a valid waiver, and therefore, Bradley waived his right to section 2255 relief.”)). Likewise, this Court is obligated to follow Torres rather than the contrary Eleventh Circuit holding on which the government relies. See Doc 13 (Gov Opp) at 10 (citing Gilbert v. U.S., 640 F.3d 1293, 1321-22 (11th Cir. 2011) (en banc)); see also Sanford v. U.S., 841 F.3d 578 (2nd Cir. 2016) (per curiam) (plea waiver of right to collaterally attack sentence was enforceable to bar habeas claim that Career Offender Guideline’s residual clause was unconstitutionally void due to vagueness).

The Court thus determines that the collateral-attack waiver in Savage’s plea agreement may not be enforced to bar him from bringing the instant habe-as claim. Accord U.S. v. Waterman, 2016 WL 5921258, *3 (N.D. Cal. Sept. 21, 2016) (following Torres and concluding that plea agreement’s waiver of collateral-attack rights did not bar petitioner from seeking section 2255 relief from sentence to the extent that the sentence was calculated under arguably void portion of career-offender guideline); U.S. v. Bailey, 2016 WL 6514167, *2 (N.D. Cal. Oct. 17, 2016) (same) (citing Torres and U.S. v. McGary, 2016 WL 4126451, *2 (N.D. Cal. Aug. 3, 2016)).

2. Savage’s Johnson-Based Claim is Not Procedurally Defaulted

Having concluded that the plea-agreement waiver of collateral-attack rights cannot bar Savage’s Johnson-based habeas challenge to his sentence under the Career Offender Guideline, the Court next considers the government’s contention that that challenge is procedurally defaulted. The government contends that Savage defaulted this habeas claim by failing to raise a Johnson-like Due Process challenge to the Career Offender Guideline’s residual clause on direct appeal, even though the Supreme Court had not yet issued Johnson. See Doc 13 (Gov Opp) at 10 (citing U.S. v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) and U.S. v. Frady, 456 U.S. 152, 162, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).

It is true that a petitioner who challenges his sentence under section 2255 typically is considered to have procedurally defaulted his claim if he did not raise it on direct appeal. See Benard, 2016 WL 5393939 at *3 (citing Ratigan, 351 F.3d at 960). “As a general rule, a defendant cannot raise an argument on collateral review that was not raised on direct appeal.” U.S. v. Trujillo, 2016 WL 7034973, *5 (D. Colo. Dec. 1, 2016) (citing Sanchez-Llamas v. Oregon, 548 U.S. 331, 351, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006)).

However, there is an exception “if the [petitioner] can first demonstrate either ‘cause’ and actual ‘prejudice,’ ... or that he is ‘actually innocent.’ ” Bousley v. U.S., 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations omitted)). Cf. also English v. U.S., 42 F.3d 473, 479 (9th Cir. 1994) (“[I]t has been the general rule in this circuit that ‘constitutional claims may be raised in collateral proceedings even if the defendant failed to pursue them on appeal.’ ”) (quoting U.S. v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)).

Petitioner Savage does not make even a colorable claim that he was actually innocent of the instant conviction for federal unarmed bank robbery or the relevant prior convictions for federal armed and unarmed bank robbery. “[T]o state a valid claim of ‘actual innocence’ sufficient to avoid a procedural bar, a petitioner must produce ’new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Black v. Vasquez, 2016 WL 6436822, *7 (C.D. Cal. Oct. 31, 2016) (quoting Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995) (applying standard of Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986))). Petitioner does not purport to have any new reliable evidence, not presented at trial, that would tend to show that he did not in fact commit one or more of the federal bank robberies that formed the predicate for his designation as a U.S.S.G. 4B1 career offender. Accordingly, in order to avoid the procedural default of his Johnson Due Process claim, he must show “cause and prejudice.” For the reasons set forth below, the Court concludes that petitioner has done so.

In the government’s view (Doc 13 at 12), Savage’s “Johnson claims” are not “based on a newly recognized rule that is ’so novel that its legal basis was not reasonably available” before the Supreme Court’s issuance of Johnson in 2015. On the contrary, argues the government, years before the Supreme Court issued Johnson (2015) and Welch (2016),

[a]t the time of petitioner’s sentencing and direct appeal, arguments challenging the constitutionality of ACCA’s similarly worded residual clause were not novel. “[T]he Federal Reporters were replete with cases” discussing challenges to the ACCA’s similarly worded residual clause on vagueness grounds. Bousley, 523 U.S. at 622 [118 S.Ct. 1604]; see, e.g., Sykes v. U.S., 564 U.S. 1, 15-16 [131 S.Ct. 2267, 180 L.Ed.2d 60] (2011) (rejecting argument); U.S. v. Argo, 925 F.2d 1133, 1134 (9th Cir. 1991) (same); U.S. v. Sorenson, 914 F.2d 173, 175 (9th Cir. 1990) (same).

Similarly, challenges to whether various offenses constituted crimes of violence and whether various prior convictions constituted crimes of violence were common. The fact that such challenges were not successful does not excuse petitioner’s failure to pursue a similar challenge to the residual clause of U.S.S.G. § 4B1.2, because “futility cannot constitute cause [for failing to raise a constitutional argument on direct appeal] if it means simply that a claim was unacceptable to a particular court at that particular time.”

Doc 13 at 12 (paragraph break added) (citing Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (internal quotation marks omitted)).

Alternately, the government argues that even if Savage could establish cause for failing to raise the instant Due Process vagueness challenge to the Career Offender Guideline on direct appeal, he cannot show he would be prejudiced if the Court found this claim to be defaulted. See Doc 13 (Gov Opp) at 12. As the government notes, to have a federal habeas court decide the merits of an otherwise defaulted claim, a habeas petitioner must show not merely that the default “created a possibility of prejudice, but that it worked to his actual and substantial disadvantage, infecting his entire proceedings with error of constitutional dimensions.” Doc 13 at 12-13 (quoting U.S. v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007)) (italics in Braswell) (brackets omitted). According to the government, Savage can show prejudice only if he can establish that both unarmed bank robbery (the instant conviction) and federal armed bank robbery (four prior convictions) are not crimes of violence for purposes of this Guideline. The' government contends that both armed and unarmed bank robbery under federal law are crimes of violence for purposes of that guideline. See Doc 13 at 13.

The government posits a second reason why, in its view, petitioner will not be prejudiced if this Court refuses to reach the merits of his vagueness challenge to the Career Offender Guideline:

[P]etitioner cannot show prejudice [from] his [U.S.S.G. 4B1.2] enhancement of his sentence as a career offender because his 169-month sentence was below the statutory maximum term of twenty years imprisonment for the conviction he sustained, see 18 U.S.C. section 2113(a).

Docl3 (Gov Opp) at 13 (citing U.S. v. Estrada, 2008 WL 5069083, *4 (D. Idaho July 3, 2008) and Surratt v. U.S. 165 F.Supp.2d 946, 949 (D. Minn. 2001) and U.S. v. Mitchell, 2001 WL 708808, *3 (D. Del. June 20, 2001)). Lastly on this point, the government urges this Court to apply an Eleventh Circuit decision’s statement that a “claim that a sentencing guideline provision was misapplied to him is not a constitutional claim” at all, see Doc 13 (Gov Opp) at 13 (citing no Ninth Circuit authority).

Savage Has Satisfied the “Cause” Prong of the Test for Avoiding Procedural Default of a Habeas Claim

“To overcome a procedural default on collateral review, a [habeas] petitioner must show cause and actual prejudice.” U.S. v. Kennedy, 218 F.Supp.3d 1104, 1108, 2016 WL 6520524, *3 (E.D. Cal. Nov. 3, 2016) (citing Massaro v. U.S., 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003)). To show cause in this context, the habeas petitioner “must ordinarily ... show that some factor external to the defense impeded counsel’s efforts to comply ... with the procedural rule.” See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

A constitutional claim is sufficiently novel that it need not be raised on direct appeal in order to be raised on later collateral review, if “its ‘legal basis for the claim was not reasonably available to counsel’ ” in time for direct appeal. See Kennedy, 218 F.Supp.3d at 1108-09, 2016 WL 6520524 at *3 (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)) (alteration bracket from Kennedy omitted). As the Supreme Court explained in Reed, 468 U.S. at 17, 104 S.Ct. 2901, a claim is not reasonably' available to counsel where “a decision of this Court ... explicitly overrules one of our precedents” in order to arrive at the new constitutional rule on which the claim relies. See also U.S. v. Walker, 214 F.Supp.3d 866, 871, 2016 WL 5921257, *2 (N.D. Cal. Oct. 5, 2016) (a convicted defendant does not proeedurally default a federal claim for collateral review by failing to raise it on direct appeal where the claim would have been “futile” in the face of “a solid wall of circuit authority”) (quoting English v. U.S., 42 F.3d 473, 479 (9th Cir. 1994)); Kimes v. U.S., 939 F.2d 776, 778 (9th Cir. 1991) (holding that “failure to object ... is not fatal to [a section 2255 petition], since well[-]settled law precluded [the] claim at the time”).

As Chief Judge O’Neill of Eastern California explained in a similar case, a constitutional vagueness challenge to the Career Offender Guideline’s residual clause was not reasonably available before Johnson:

Johnson explicitly overruled two Supreme Court cases holding that the residual clause of the ACCA [statute] was constitutional. James v. U.S., 550 U.S. 192[, 127 S.Ct. 1586], 167 L.Ed.2d 532 (2007); Sykes v. U.S., 564 U.S. 1[, 131 S.Ct. 2267], 180 L.Ed.2d 60 (2011). In James, the majority rejected the notion that the ACCA was unconstitutionally vague, stating: “[t]he statutory requirement that an unenumerated crime ‘otherwise involv[e] conduct that presents a serious potential risk of physical injury to another’ is not so indefinite as to prevent an ordinary person from understanding what conduct it prohibits.” 550 U.S. at 210 n.6, 127 S.Ct. 1586.

Similarly, in Sykes, the majority declined the dissent’s suggestion that the Court “admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.” 564 U.S. at 28, 131 S.Ct. 2267 (Scalia, J., dissenting).

Shortly before Johnson was decided [by the Supreme Court in 2015], the Ninth Circuit recognized that both “Supreme Court and Ninth Circuit precedent foreclose” arguments “that the ACCA’s residual clause is unconstitutionally vague.” U.S. v. Martinez, 771 F.3d 672, 678 (9th Cir. 2014)[, rac’d and remanded to Ninth Circuit for further consideration in light of Johnson v. U.S., — U.S. -, 135 S.Ct. 2939 [2551], 192 L.Ed.2d 569 (2015).]

Kennedy, 218 F.Supp.3d at 1108-09, 2016 WL 6520524 at *3 (¶ break added). Accord U.S. v. Archuleta, 2016 WL 6568677, *3 (E.D. Cal. Nov. 3, 2016); Waterman, 2016 WL 5921258 at *3 (“Thus, when this Court sentenced Waterman in May 2013, a vagueness challenge [to U.S.S.G. 4B1.2(a)(2) ] was not reasonably available because higher courts had foreclosed it.”) (citing Martinez, 771 F.3d at 678).

Savage was sentenced on September 25, 2008, after James but before the Supreme Court decisions which gave rise to a colorable retroactive vagueness claim against the residual clause of the Career Offender Guideline, Johnson and Welch. “Therefore, at the time Petitioner was sentenced, a vagueness challenge to the identically worded residual clause in [U.S.S.G.] section 4B1.2 was foreclosed by Supreme Court precedent.” Kennedy, 218 F.Supp.3d at 1109, 2016 WL 6520524 at *3 (citing U.S. v. Garcia, 2016 WL 4364438, *3 (N.D. Cal. Aug. 16, 2016)); U.S. v. Dean, 169 F.Supp.3d 1097, 1107-08 (D. Or. 2016); Gilbert v. U.S., 2016 WL 3443898, *2-*3 (W.D. Wash. June 23, 2016); U.S. v. Stamps, 2016 WL 3747286, *3 (N.D. Cal. June 28, 2016). Accord U.S. v. Jefferson, 2016 WL 6496456, *3 (N.D. Cal. Oct. 19, 2016) (petitioner had shown cause for not bringing a Johnson-like vagueness challenge to his “violent crime” Guideline enhancement on direct appeal) (“Though the Government is correct that the Ninth Circuit has allowed the Guidelines to be challenged for vagueness, it does not cite any Ninth Circuit precedent suggesting the applicable Guideline was vague. Mr. Jefferson was sentenced after the Supreme Court had upheld the Residual Clause. There was thus binding precedent compelling this Court to reject any vagueness challenge [he] brought, had he brought one. [He] was not compelled to make an argument that was inevitably doomed, and the Government’s insistence that he should have would erase the test set out by the Supreme Court in Reed.”) (citing, inter alia, James, 550 U.S. at 210 n.6, 127 S.Ct. 1586).

“Therefore, to preserve his current argument, [petitioner] was not required to argue on direct appeal that Supreme Court precedent should be overruled, particularly precedent as recent as Sykes.” Trujillo, 2016 WL 7034973 at *5 (citing U.S. v. Snead, 2016 WL 4091548, *1-*3 (N.D. Cal. Aug. 2, 2016) and U.S. v. Dean, 169 F.Supp.3d 1097, 1106-08 (D. Or. 2016)).

Accordingly, Savage has met the “cause” prong of the test for avoiding procedural default of his Johnson-based vagueness challenge to his Career Offender Guideline sentence. Accord Alvarado v. U.S., 2016 WL 6302517, *3 (C.D. Cal. Oct. 14, 2016) (“[I]n the wake of Johnson, courts in the Ninth Circuit have held that a section 2255 motion based on a Johnson claim is not procedurally defaulted because the claim was not ‘reasonably available’ prior to Johnson.”) (citation omitted); U.S. v. Chilton, 2016 WL 6518665, *3 (N.D. Cal. Oct. 11, 2016) (same); U.S. v. Santos, 2016 WL 5661553, *3 (C.D. Cal. Sept. 9, 2016) (petitioner satisfied “cause” prong of the test for avoiding procedural default of Johnson-based challenge to his Career Offender Guideline residual clause sentence); U.S. v. McGary, 2016 WL 4126451, *2 (N.D. Cal. Aug. 3, 2016) (same).

Savage Has Also Satisfied the “Prejudice” Prong of the Test for Avoiding Procedural Default

“If a petitioner succeeds in showing ’cause, the prejudice prong of the test requires [him to] demonstrare] ‘not merely that the [constitutional] errors’ ” leading to the putatively unlawful conviction or sentence “ ‘created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial [or sentence] with error of constitutional dimensions.’” U.S. v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (emphasis in original) (quoting Frady, 456 U.S. at 170, 102 S.Ct. 1584).

The government argues that petitioner Savage cannot show actual prejudice because he was sentenced within the statutory maximum term of imprisonment for the instant offense of federal unarmed bank robbery: “His 169-month sentence was below the statutory maximum of twenty years imprisonment” set forth in section 2113(a). Doc 13 at 13 (citing, inter alia, U.S. v. Estrada, 2008 WL 5069083, *4 (D. Idaho July 3, 2008) (“[Petitioner] cannot show prejudice given that his sentence was not above the relevant statutory maximum, [and thus] he has procedurally defaulted on this claim”) and Surratt v. U.S., 165 F.Supp.2d 946, 949 (D. Minn. 2001) (although “[petitioner’s guidelines sentence of 324 months exceeded the 240-month statutory maximum,” he still could not show prejudice as needed to avoid procedural default of his habeas challenge to that sentence because the sentencing court could have run his two 240-month sentences running consecutively per U.S.S.G. section 5G1.2(d) only to the extent necessary to reach the guideline sentence of 324 months)).

In this connection, the Court would further note that it could have imposed the maximum statutory term of imprisonment independent of the offense level that was calculated under the Guidelines, and independent of the term of imprisonment that was recommended by Guidelines for someone of petitioner’s criminal history category and total adjusted offense level. This is because at the time of his sentencing in 2008, U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), had already made clear that the Guidelines were only advisory, meaning that the Guidelines recommendation on terms of imprisonment and supervised release did not strictly bind district judges.

Finally on this issue, the government relies on Gilbert v. U.S., 640 F.3d 1293, 1321-22 (11th Cir. 2011), for the proposition that a convict’s “claim that a sentencing guidelines provision was misapplied to him is not a constitutional claim[.]” See Doc 13 at 13. If the Court follows the Eleventh Circuit’s view from Gilbert, the government says, petitioner will not be able to establish that his sentencing was “ ‘infect[ed] ... with error of constitutional dimension,’ as [the Ninth Circuit’s] Braswell, 501 F.34d at 1150, requires.” Doc 13 at 13.

The Court is not persuaded by the government’s position on the prejudice prong of the procedural-default test. Under binding precedent, a habeas petitioner in Savage’s situation need not show that a constitutional violation increased the applicable statutory maximum term of imprisonment. The Supreme Court has held that an error that resulted in an increased guideline-recommended range caused cognizable prejudice to the convicted defendant even though it had not changed the applicable statutory maximum. The Supreme Court unanimously held that the petitioner there was prejudiced even by an increase of a few months in the guideline-recommended range of prison terms, because “any amount of actual jail time has Sixth Amendment significance.” Glover v. U.S., 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), cited by U.S. v. Porbillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir. 2001) (by applying aggravated-felony enhancement where it did not apply under binding case law, the district court prejudiced defendant; “if [he] had received ... no enhancements”, the Guidelines would have recommended a maximum term of 18 months in prison, whereas the four-level enhancement erroneously imposed caused the Guidelines to recommend a maximum term of 30 months).

In Glover, the Supreme Court was deciding whether an increase in the Guideline-recommended term of imprisonment range constituted “prejudice” to a convicted criminal defendant for purposes of the Strickland v. Washington standard for ineffective assistance of counsel. Nonetheless, Glover also supplies the legal standard for determining prejudice for purposes of procedural default in habeas corpus. This is because “the prejudice standard for excusing a procedural default ... is the same as the prejudice standard for establishing ineffective assistance, .... ” Hester v. Pierce, 2016 WL 5539585, *5 (D. Del. Sept. 28, 2016) (citing Holland v. Horn, 519 F.3d 107, 120 (3d Cir. 2008)); see also Vansickel v. White, 166 F.3d 953, 958-59 (9th Cir. 1999) (analyzing case and prejudice for procedural default under Strickland standard); accord, e.g., Robinson v. Rozum, 2016 WL 4762085, *10 (W.D. Pa. July 10, 2016) (citing Mincey v. Head, 206 F.3d 1106, 1147 (11th Cir. 2000) (“In that the prejudice [precedent] requires to overcome a procedural default is the same as the prejudice Strickland requires ... (in the ineffective assistance context), it follows that Mince/s ineffective[-]assistance claim must fail.”), R & R adopted, 2016 WL 4734295 (W.D. Pa. Sept. 12, 2016); Broughton v. Crews, 2016 WL 4625616, *16 (S.D. Fla. Sept. 6, 2016) (“[F]or the same reasons [that] Petitioner cannot establish prejudice to excuse his procedural default, he cannot establish prejudice under Strickland.”). Cf. Murray, 477 U.S. at 492, 106 S.Ct. 2639 (attorney error will not excuse procedural default of a constitutional claim unless the error amounted to ineffective assistance), cited by Parker v. Hill, 2010 WL 330263, *9 (D. Or. Jan. 21, 2010).

Petitioner convincingly reasons that “[t]his principle retains full force and effect post-U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) [which held that the Sentencing Guidelines’ ultimate recommendations do not bind district judges and are merely advisory], and irrespective of whether the application of the erroneous [here, partially unconstitutional] guideline was mandatory or discretionary.” See Doc 18 (Savage Reply) at 20. This is primarily because the Supreme Court has made clear, in the post-Booker advisory-Guidelines era, that “the Guidelines are” nonetheless still “in a real sense the basis for the [defendant’s] sentence.” See Peugh v. U.S., — U.S. -, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013) (quoting Freeman v. U.S., 564 U.S. 522, 529, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (plurality opinion)). The Supreme Court reasoned that on appeal, a sentence

is reviewed for reasonableness under an abuse-of-discretion standard. Failure to calculate the correct Guidelines range constitutes procedural error, .... The court of appeals may, but is not required to, presume that a within-Guidelines sentence is reasonable. * * * Overall, this system “requires a court to give respectful consideration to the Guidelines,” but it “permits the court to tailor the sentence in light of other statutory concerns as well.”

Under 18 U.S.C. section 3553(a)(4)(A)(ii), district courts are instructed to apply the Sentencing Guidelines ... that are “in effect on the date the defendant is sentenced.” * * *

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. As we have described, “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.”

* * * A district court contemplating a non-Guidelines sentence “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” * * *

These requirements mean that “in the usual sentencing, ... the judge will use the Guidelines as the starting point in the analysis and impose a sentence within the range.” Freeman v. U.S., 564 U.S. 522, 181 S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011) (plurality opinion). Even if the sentencing judge sees a reason to vary from the Guidelines, “if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence. Ibid. * * *

Peugh, 133 S.Ct. at 2080-81 (internal citations and n.2 omitted) and 2083-84 (other internal citations omitted) (italics in Peugh, boldface added); see also Romero v. Warden, 550 Fed.Appx. 72, 73 (3d Cir. 2014) (per curiam) (Peugh held that a “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”) (citing Peugh, 133 S.Ct. at 2084).

The Supreme Court has further emphasized that even after Booker rendered the Guidelines advisory, district courts in the “vast majority of cases [have] imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines [only] on the Government’s motion.” Peugh, 133 S.Ct. at 2084 (cites omitted). Most significantly, the Supreme Court emphasizes that “the Sentencing Commission’s data indicate that when a Guidelines [recommended] range [for term of imprisonment] moves up or down, offenders’ sentences move with it.” Peugh, 133 S.Ct. at 2084 (citations omitted).

More recently, the Supreme Court again reaffirmed the Sentencing Guidelines’ continuing importance and the substantial weight that a sentencing judge must accord the Guidelines and their recommendations. In Molina-Martinez v. U.S., — U.S. -, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016), the petitioner had been sentenced to 77 months in federal prison, the minimum recommended term for someone with his calculated offense level of 21. On appeal, Molina argued that the district court had erred in calculating his criminal history points, resulting in the applicable of a higher Guidelines-recommended range, see Molina, 136 S.Ct. at 1344. The government argued that there was no prejudice because the correct Guideline-recommended range was 70-87 months and petitioner’s sentence fell squarely in the middle of that range, see Molina, 136 S.Ct. at 1344. The Supreme Court rejected the government’s argument. It noted that the Guidelines are a “lodestar” for sentencing even where the district judge departs or varies from their recommendations, explaining as follows:

From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used.

In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome [as required to show prejudice].

Molina, 136 S.Ct. at 1346. Under such circumstances, the petitioner will be unable to show prejudice only if the government establishes that the record clearly shows that “the district court thought the sentence it chose was appropriate irrespective of the Guidelines range”, see id. at 1346-47.

Guided heavily by the Supreme Court’s characterization of the Guidelines’ post-Booker role in sentencing, see Molina, — U.S. -, 136 S.Ct. 1338, 194 L.Ed.2d 444, and Peugh, 133 S.Ct. at 2080-84, the Court concludes that when analyzing prejudice from a constitutional error in sentencing, “the discretionary nature of the Guidelines is inconsequential because they nonetheless are the lodestone of sentencing and have considerable influence .... The Guidelines accordingly have a real and pervasive and only quasi-advisory effect on sentencing, bringing them closer to a statute which fixes sentences than a sort of suggested opinion.” In re Patrick, 833 F.3d 584, 589 (6th Cir. 2016); accord In re Hubbard, 825 F.3d 225, 235 (4th Cir. 2016) (“[Although available sentences are technically controlled by statute [alone], the Sentencing Guidelines hardly represent a mere suggestion to courts about the proper sentences [that] defendants should receive.”).

Indeed, “the Ninth Circuit has long held that, on direct review, miscalculation of the Guidelines range constitutes plain error that affects a defendant’s substantial rights.” U.S. v. Chilton, 2016 WL 6518665, *3 (N.D. Cal. Oct. 11, 2016) (citing U.S. v. Doe, 705 F.3d 1134, 1158 (9th Cir. 2013)); see also Waterman, 2016 WL 5921258 at *4 (petitioner would be prejudiced if his vagueness challenge to a sentencing guideline were defaulted, because Circuit has held that the decision to apply an inapplicable Guideline “ ‘derailed the sentencing proceedings before [they] even beg[i]n’”) (quoting U.S. v. Vargem, 747 F.3d 724, 728-29 (9th Cir. 2014)); Kinman, 2016 WL 6124456, *4 (petitioner satisfied prejudice prong of procedural-default standard for Johnson vagueness challenge to career-offender sentence, court noted that our “Circuit has long held that, on direct review, miscalculation of the Guidelines’ range constitutes plain error that affects a defendant’s substantial rights.”) (citing U.S. v. Bonilla-Guizar, 729 F.3d 1179, 1188 (9th Cir. 2013)).

With the Supreme Court’s characterization of the Guidelines’ import in mind, the Court concludes that petitioner Savage has shown that he would suffer the requisite prejudice if he were denied consideration of the merits of the instant habeas claim on the ground of procedural default. At the time of sentencing in 2008, this Court followed the Probation Office’s recommendation (PSR ¶¶ 28 and 81) to apply the Career Offender Guideline, which recommended a term of imprisonment between 151 months and 188 months inclusive. This Court imposed a sentence of 169 months, in the middle of the Career Offender recommended range. It is undisputed that if the Career Offender Guideline did not apply, the Guidelines would have recommended a term of imprisonment of only 46-57 months.

In 2008, this Court imposed a term of imprisonment that was in the middle of the range recommended by the Career Offender Guideline. This does not necessarily mean that the Court would find it appropriate to impose a term in the middle of some other guideline-recommended range if it concluded that the .Career Offender Guideline did not apply. It bears noting, however, that a sentence in the middle of the non-c areer-offender recommended range would be 51 or 52 months — less time than petitioner Savage has already served in federal prison pursuant to the instant unarmed bank robbery conviction. Even a sentence at the high end of the non-career-offender recommended range, 57 months, would be less time than Savage has already served. In other words, a substantial departure upward from the non-career-offender recommended range would be needed just to arrive at the term that Savage has already served in federal prison on this conviction.

Although this Court theoretically would be free to re-impose the same 159-month sentence in the face of a Guideline recommendation of only 46-57, the variance from the Guideline recommendation would be drastically larger. Thus, for purposes of procedural-default prejudice analysis, the Court cannot say that it is reasonably probable that Savage would receive a sentence no shorter than the one he received when the Guidelines recommended a whopping 151-188 months. Accord Jefferson, 2016 WL 6496456 at *4 (noting that Guidelines recommended 63-78 months with application of U.S.S.G. 2K2.1(a)(4) enhancement but would have recommended only 33-41 months without it, court stated, “Relying in part on the Guidelines, the Court sentenced Mr. Jefferson to 54 months in prison, a slight variance below the then app