NOT RECOMMENDED FOR PUBLICATION File Name: 20a0593n.06 No. 19-5229 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED JOSHUA R. JONES, ) Oct 19, 2020 ) DEBORAH S. HUNT, Clerk Petitioner-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN UNITED STATES OF AMERICA, ) DISTRICT OF TENNESSEE ) Respondent-Appellee. ) ) BEFORE: McKEAGUE, GRIFFIN, and BUSH, Circuit Judges. GRIFFIN, Circuit Judge. In this appeal, we consider whether a defendant sentenced as a career offender under the mandatory Sentencing Guidelines regime may invoke the newly announced and retroactive rule of constitutional law established by the Supreme Court’s holding in Johnson v. United States, 576 U.S. 591 (2015), to meet the one-year statutory deadline for filing a motion under 28 U.S.C. § 2255(f)(3). Previously, we held that Johnson did not extend to such defendants. Raybon v. United States, 867 F.3d 625, 629–31 (6th Cir. 2017). But now, petitioner Joshua Jones contends that a pair of recent Supreme Court decisions—Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019)—abrogated our holding in Raybon, so he may rely on Johnson to meet the deadline imposed by § 2255(f)(3). The district court rejected Jones’s argument and denied his § 2255 motion as untimely. We affirm. No. 19-5229, Jones v. United States I. In 2004, during the pre-Booker era when the Sentencing Guidelines were deemed mandatory, see United States v. Booker, 543 U.S. 220, 233 (2005), Joshua Jones pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and to conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). The district court determined that Jones had two prior convictions that qualified either as a “crime of violence” or a “controlled substance offense,” meaning that petitioner was classified as a career offender under § 4B1.2(a) of the then-mandatory United States Sentencing Guidelines. One of Jones’s prior offenses was a Tennessee conviction for attempted aggravated sexual battery, which only qualified as a crime of violence under Guidelines § 4B1.2(a)(2)’s residual clause.1 See U.S.S.G. § 4B1.2(a)(2) (2002) (“The term ‘crime of violence’ means 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 potential risk of physical injury to another.” (emphasis added)). Petitioner was thus sentenced as a career offender to a total term of imprisonment of 262 months followed by a ten-year term of supervised release. He did not appeal his conviction. Thirteen years later, Jones filed a pro se motion under 28 U.S.C. § 2255, collaterally attacking his career offender classification and sentence. Jones relied on Johnson, wherein the Supreme Court determined ...
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