United States v. Pullen , 913 F.3d 1270 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 29, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-3194
v.
BOBBY G. PULLEN,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)
_________________________________
Daniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody
Brannon, Federal Public Defender, and Kirk Redmond, First Assistant Federal Public
Defender), Kansas City, Kansas, for Defendant - Appellant.
Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, former United States
Attorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant
United States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff - Appellee.
_________________________________
Before McHUGH, MORITZ, and EID, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
The district court sentenced Bobby G. Pullen as a career offender pursuant to
United States Sentencing Guidelines Manual (“USSG”) § 4B1.1 at a time when the
Sentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v.
United States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C.
§ 924(e)(2)(B)(ii) is unconstitutionally vague. As the residual clause of § 924(e)(2)(B)(ii)
is identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision
for USSG § 4B1.1), Mr. Pullen, relying on Johnson, moved for authorization to file a
second or successive 28 U.S.C. § 2255 motion. This court determined Mr. Pullen made a
prima facie showing that Johnson created a retroactive, new rule of constitutional law
applicable to the mandatory Guidelines. The district court, however, concluded Johnson
did not actually create a new rule applicable to the mandatory Guidelines and dismissed
Mr. Pullen’s § 2255 motion pursuant to 28 U.S.C. § 2255(h)(2), a provision governing
authorization to file a second or successive § 2255 motion. The district court did,
however, grant Mr. Pullen a certificate of appealability (“COA”).
On appeal, Mr. Pullen argues the district court procedurally erred when it relied on
§ 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when
it determined Johnson did not create a new rule applicable to the mandatory Guidelines.
As to Mr. Pullen’s procedural challenge, our recent decision in United States v. Murphy,
887 F.3d 1064 (10th Cir.), cert. denied, 2018 WL 3462559 (Oct. 29, 2018), forecloses his
argument. With respect to Mr. Pullen’s substantive challenge, the Supreme Court has
never recognized a void for vagueness challenge to the Guidelines and so Johnson neither
creates a new rule applicable to the Guidelines nor dictates that any provision of the
2
Guidelines is subject to a void for vagueness challenge. Accordingly, we affirm the
district court’s judgment.
I. BACKGROUND
In 1999, a jury convicted Mr. Pullen of one count of possession with intent to
distribute 100 kilograms or more of marihuana, or aiding and abetting the same, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2. At sentencing, the district
court established a total offense level of thirty-four and a criminal history category of VI.
The offense level and criminal history category resulted from application of the career
offender provision of USSG § 4B1.1 (1998). Application of the career offender provision
rested in part on a prior Missouri conviction for escape. Under the offense level and
criminal history category compelled by the career offender provision, the presentence
investigation report set Mr. Pullen’s Guidelines range at 262 to 327 months’
imprisonment. The district court sentenced Mr. Pullen to 262 months’ imprisonment.
Absent designation as a career offender, Mr. Pullen’s Guidelines range would have been
92 to 115 months’ imprisonment.
In 2006, Mr. Pullen filed his first motion under 28 U.S.C. § 2255, which the
district court dismissed as untimely. United States v. Pullen, No. 98–40080–JAR,
2006 WL 1133232, at *1 (D. Kan. Apr. 21, 2006). In 2015, the Supreme Court
decided Johnson, relying on the void for vagueness doctrine to invalidate the residual
clause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. This residual clause is
part of the Armed Career Criminal Act (“ACCA”), which enhances the statutory
mandatory minimum for certain defendants who have three or more previous
3
convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).
Section 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
(emphasis added). The clause emphasized above is the residual clause invalidated in
Johnson. Importantly, the residual clause of § 924(e)(2)(B)(ii) is identical to the
residual clause in USSG § 4B1.2, which defined “crime of violence” for purposes of
the career offender guideline as an offense that “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)(2) (emphasis
added).
Within one year of the decision in Johnson, Mr. Pullen, relying on 28 U.S.C.
§ 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable
to the mandatory Guidelines, filed a motion in this court for authorization to file a
second or successive § 2255 motion. We granted the motion for authorization and
Mr. Pullen filed his § 2255 motion in district court. The Government filed a response
in which it conceded Mr. Pullen’s Missouri escape conviction qualified as a “crime
of violence” only under the residual clause of USSG § 4B1.2(a)(2) but argued, in
part, that (1) Johnson did not create a new rule applicable to the mandatory
Guidelines; (2) a rule allowing void for vagueness challenges to the Guidelines
would be a new rule that the Supreme Court had not yet recognized; and (3) Mr.
Pullen’s motion was, therefore, untimely for purposes of 28 U.S.C. § 2255(f).
4
The district court focused its analysis on § 2255(h)(2)’s requirement that Mr.
Pullen’s motion be based on “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The
district court concluded Mr. Pullen’s motion was untimely and did not satisfy
§ 2255(h)(2) because relief was premised on the void for vagueness doctrine applying to
the Guidelines but neither Johnson nor any other Supreme Court case has recognized a
void for vagueness challenge to the Guidelines. Thus, the district court, relying on
§ 2255(h)(2), dismissed Mr. Pullen’s motion.
The district court, however, granted Mr. Pullen a COA. In pertinent part, the COA
reads: “Here, the Court concludes that reasonable jurists could debate whether the Court
was correct in its ruling. The Court thus grants a COA on the issue of whether Mr.
Pullen’s motion falls within the scope of 28 U.S.C. § 2255(h)(2).” ROA at 187. In his
opening brief, Mr. Pullen focuses on the § 2255(h)(2) nature of the dismissal, arguing this
provision is directed at the circuit court’s authority to grant a prisoner authorization to file
a second or successive § 2255 motion and, once a circuit court grants authorization, the
district court may not dismiss the motion pursuant to § 2255(h)(2).1 In its response brief,
the Government argues a grant of authorization by a circuit court only preliminarily
certifies that the movant satisfied the preconditions for a second or successive § 2255
1
Mr. Pullen moved for leave to file a pro se opening brief. Because Mr. Pullen
is represented by counsel, we deny his motion. See United States v. McDermott, 64
F.3d 1448, 1450 n.1 (10th Cir. 1995) (declining to consider issues raised in pro se
brief based on “policy of addressing on direct appeal only those issues raised by
counsel”).
5
motion and that the district court has a secondary gatekeeping role to assure the motion
does, in fact, satisfy § 2255(h)(2). The Government further argues the district court
correctly concluded Johnson did not create a retroactive, new rule applicable to the
mandatory Guidelines.
After briefing concluded, several key developments occurred in the law
surrounding Johnson. First, the Supreme Court issued its decision in Sessions v. Dimaya,
holding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which
is similarly, but not identically, worded to the residual clause of § 924(e)(2)(B)(ii)—was
unconstitutionally vague. 138 S. Ct. 1204 (2018). Second, the Supreme Court denied
certiorari petitions in several cases where circuit courts rejected § 2255 Johnson-based
challenges to the residual clause in USSG § 4B1.2. See, e.g., Raybon v. United States,
138 S. Ct. 2661 (2018); Lester v. United States, 138 S. Ct. 2030 (2018). Third, several
other circuit courts addressed whether Johnson created a retroactive, new rule applicable
to the residual clause of USSG § 4B1.2. See United States v. Blackstone, 903 F.3d 1020,
1025–28 (9th Cir. 2018) (holding Supreme Court has yet to announce rule that mandatory
Guidelines are susceptible to void for vagueness challenge); Russo v. United States, 902
F.3d 880, 882–84 (8th Cir. 2018) (denying § 2255 relief and holding prisoner was not
asserting a right based on Johnson because reasonable minds could debate whether
Johnson announced a new rule of constitutional law applicable to the mandatory
Guidelines); United States v. Green, 898 F.3d 315, 319–23 (3d Cir. 2018) (holding
§ 2255 motion untimely because Beckles v. United States, 137 S. Ct. 886 (2017), favors
conclusion Johnson did not create new rule applicable to mandatory Guidelines and that
6
issue remains open); Cross v. United States, 892 F.3d 288, 299–306 (7th Cir. 2018)
(holding Johnson created new rule applicable to all vague, mandatory residual clauses
that enhance punishment such that § 2255 relief from sentence imposed under mandatory
Guidelines scheme was proper).
In the midst of these developments, we ordered the parties to submit
simultaneous supplemental briefs. In his supplemental brief, Mr. Pullen argues
Dimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C.
§ 924(e)(2)(B)(ii).2 And Mr. Pullen articulates the new rule from Johnson as a
due process right not to have a statutory penalty range fixed by a
provision that defines a prior conviction as one involving “conduct that
presents a serious potential risk of physical injury to another,” and that
uses an ordinary-case categorical approach to measure whether the
conviction is sufficiently risky to count under the provision.
Pullen Supp. Br. at 5–6 (not identifying source of quotation). The Government argues
neither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision
or whether the void for vagueness doctrine applies to the Guidelines. Rather, the
Government argues, Beckles provides the best guidance on whether Johnson created
a new rule relative to the mandatory Guidelines. The majority opinion in Beckles
rejected a Johnson-based challenge to the advisory Guidelines and Justice
Sotomayor, in a concurrence, indicated that Johnson’s applicability to the mandatory
Guidelines “remains an open question.” Gov. Supp. Br. at 5. The Government
2
Out of concern that his counsel might not have filed a supplemental brief,
Mr. Pullen moved to file a pro se supplemental brief. As Mr. Pullen is represented by
counsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion.
See McDermott, 64 F.3d at 1150 n.1.
7
theorizes that if the question remains open, Johnson does not create a new rule
applicable to the mandatory Guidelines because, if a question is “expressly left open,
then the right, by definition, has not been recognized.” Id. at 5–6 (quoting United
States v. Brown, 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied, 139 S. Ct. 14
(2018)).
Finally, subsequent to oral argument, the Supreme Court, over a two justice
dissent, denied certiorari petitions in a second set of cases where circuit courts denied
§ 2255 motions raising Johnson-based challenges to the residual clause of USSG
§ 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States,
139 S. Ct. 14 (2018); see Gipson v. United States, 2018 WL 1993703 (Oct. 15, 2018);
Lewis v. United States, 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States,
2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States, 2018 WL 2064772 (Oct.
15, 2018); Molette v. United States, 2018 WL 1640168 (Oct. 15, 2018); Homrich v.
United States, 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States, 2018 WL
3024068 (Oct. 15, 2018); Smith v. United States, 2018 WL 3024136 (Oct. 15, 2018);
Buckner v. United States, 2018 WL 3024166 (Oct. 15, 2018);3 see also Robinson v.
United States, 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States, 2018 WL
3
Footnote 1 of the dissent from the denial of certiorari in Brown v. United
States indicates that the dissent also applies to the other nine orders denying
certiorari that issued on October 15, 2018. 139 S. Ct. 14, 14 n.1 (2018) (Sotomayor,
J., dissenting from denial of certiorari). Where Justice Ginsburg joined the dissent in
Brown in full and without reservation, we interpret footnote 1 as indicating that
Justice Ginsburg dissented from the other nine denials of certiorari issued on October
15, 2018, even though the orders in those denials do not specifically identify Justice
Ginsburg as dissenting.
8
3660076 (Dec. 3, 2018); Bowens v. United States, 2018 WL 5113456 (Nov. 19,
2018); Callins v. United States, 2018 WL 4932460 (Nov. 13, 2018).
II. STANDARD OF REVIEW
“Where, as here, the district court does not hold an evidentiary hearing, but
rather denies the motion as a matter of law . . . our review is strictly de novo.” United
States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted).
Further, “[w]e are not bound by the district court’s reasoning and may affirm on any
ground adequately supported by the record.” United States v. Greer, 881 F.3d 1241,
1244 (10th Cir. 2018), (internal quotation marks omitted) cert. denied 2018 WL
2087987; see Grossman v. Bruce, 447 F.3d 801, 805 n.2 (10th Cir. 2006) (“[W]e are
free to affirm [the denial of 28 U.S.C. § 2241 relief] on any ground for which there is
a sufficient record to permit conclusions of law.”).
III. DISCUSSION
A. Threshold Requirement for Second or Successive § 2255 Motion
Although prisoners who have not filed a prior § 2255 motion may file such a
motion directly in the district court, a prisoner who filed a prior § 2255 motion must
obtain authorization from a circuit court judge prior to filing the motion in district
court. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or
successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.”). Section 2255(h) of Title 28 sets out the
requirements for authorization and states, in pertinent part:
9
A second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain—
...
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
To obtain authorization to file a second or successive § 2255 motion, a movant
relying on a new rule of constitutional law must make a prima facie showing to the
circuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C.
§ 2244(b)(3)(C).
B. Secondary Requirement for Second or Successive § 2255 Motion
Having concluded that Mr. Pullen made a prima facie showing to the circuit court
that he satisfies the § 2255(h)(2) requirements, we next consider whether the district
court possessed the authority to deny Mr. Pullen relief and dismiss his § 2255 motion
pursuant to § 2255(h)(2) after the circuit court certified his prima facie compliance.
Our recent decision in Murphy controls our analysis.
As discussed, “[u]nder § 2255(h)(2), a second or successive [§ 2255] motion
must be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain
a previously unavailable new rule of constitutional law that the Supreme Court has
made retroactively applicable to cases on collateral review.” Murphy, 887 F.3d at
1067. In turn, § 2244(b)(3) instructs that “to receive certification, a motion need only
make a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added).
Because § 2244(b)(3) requires only a prima facie showing for certification by the
court of appeals, certification amounts to only a “preliminary” determination that the
10
second or successive § 2255 motion contains a claim based on a new rule of
constitutional law made retroactive on collateral review by the Supreme Court. Id.
The “preliminary” nature of this determination means the movant must pass through
a second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the
court of appeals grants authorization, the district court must determine whether the
petition does, in fact, satisfy the requirements for filing a second or successive
motion before the merits of the motion can be considered.” Id. (internal quotation
marks omitted). In summation, the two procedural gates a prisoner must pass through
before obtaining review of the merits of a second or successive § 2255 motion are:
(1) a prima facie showing to the court of appeals that the motion
satisfies the requirements of § 2255(h), defined as “a sufficient
showing of possible merit to warrant a fuller exploration by the
district court” and
(2) a determination by the district court that the petition does, in fact,
satisfy those requirements.
Id. at 1068 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
In accord with this two-gate approach, the district court was required to
analyze whether Mr. Pullen’s § 2255 motion actually relied on “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s
§ 2255 motion did not actually rely on a new rule of constitutional law applicable to
the mandatory Guidelines, the district court relied on § 2255(h)(2) to dismiss the
motion.
11
With these requirements in mind, we discuss the history of the Sentencing
Guidelines and of Johnson and its progeny before turning to the issue of whether the
district court correctly determined that Mr. Pullen cannot actually satisfy the
requirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his
motion relies on a new rule of constitutional law already decided and deemed
retroactively applicable by the Supreme Court.
C. Legal Background
1. History of the Guidelines
In 1984, Congress authorized the United States Sentencing Commission to
promulgate the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 361, 362
(1989). Prior to the adoption of the Guidelines, the often expansive statutory
minimum and maximum penalties for an offense served as the only constraint on a
federal judge’s discretion at sentencing. Id. at 364 (describing the pre-Guidelines
sentencing scheme as one where “Congress delegated almost unfettered discretion to
the sentencing judge to determine what the sentence should be within the customarily
wide range so selected”). One of the primary purposes behind the creation of the
Guidelines was to “promote uniformity and proportionality in sentencing” across the
country. United States v. Jackson, 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en
banc). And in passing the Sentencing Reform Act of 1984, Congress intentionally
“settl[ed] on a mandatory-guideline system,” rather than an advisory system.
Mistretta, 488 U.S. at 367.
12
Codifying the generally mandatory nature of the Guidelines, Congress enacted
18 U.S.C. § 3553(b)(1), which states, in pertinent part:
Except as provided in paragraph (2), the court shall impose a sentence
of the kind, and within the range, [produced by the Guidelines] unless
the court finds that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that described.
In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing guidelines,
policy statements, and official commentary of the Sentencing
Commission.
(emphasis added). In 2005, the Supreme Court struck down the above-quoted
statutory provision, concluding the Sixth Amendment precluded a sentencing judge
from finding facts that effectively increased a defendant’s punishment where those
facts had not been found by a jury or admitted by the defendant as part of a guilty
plea. United States v. Booker, 543 U.S. 220, 244 (2005).4 In reaching this conclusion,
the Court held the Guidelines acted like a statute because a sentencing judge’s ability
to depart from the Guidelines range was so strictly limited that the Guidelines range
drove a defendant’s sentence in the vast majority of cases. Id. at 234. To solve the
constitutional problem with a mandatory-Guidelines scheme, the Supreme Court
severed the portion of the Sentencing Reform Act of 1984 that made the Guidelines
4
Despite Booker’s statement about judicial factfinding at sentencing violating
the Sixth Amendment, an exception to this general prohibition exists where the
district court makes factual findings regarding a defendant’s prior criminal history.
See Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).
13
mandatory, transforming the Guidelines into their present-day, advisory form. Id. at
265; see also id. at 245–60.
2. Johnson and its Progeny
In 2015, the Supreme Court addressed the constitutionality of 18 U.S.C.
§ 924(e)(2)(B). Section 924(e)(2)(B) defined “violent felony” as
any crime punishable by imprisonment for a term exceeding one year
. . . that—
(i) has as an element the use, attempted use, or threatened use 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
(emphasis added). In Johnson, the Court concluded the emphasized language, known
as the residual clause, was void for vagueness because “the indeterminacy of the
wide-ranging inquiry required by the residual clause both denies fair notice to
defendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at
2556 (identifying “fail[ure] to give ordinary people fair notice of the conduct it
punishes” and being “so standardless that it invites arbitrary enforcement” as two
bases for finding statute unconstitutionally vague). Johnson, however, limited its
holding to the residual clause of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s
decision does not call into question application of the [ACCA] to the four enumerated
offenses, or the remainder of the [ACCA’s] definition of a violent felony.”); see also
Greer, 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in
Johnson was a defendant’s right not to have his sentence increased under the residual
clause of the ACCA.”).
14
In the aftermath of Johnson, courts were flooded with challenges, both on
direct appeal and under § 2255, to convictions or sentences supported by
§ 924(e)(2)(B)(ii) or other provisions resembling § 924(e)(2)(B)(ii). A trio of
Supreme Court cases shape the state of the law post-Johnson. First, in Welch v.
United States, the Court held Johnson announced a new rule of constitutional law
that applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1264–65
(2016). Although Welch never explicitly states the rule from Johnson, the majority
opinion suggests the rule was limited to the ACCA. See id. at 1265 (“By 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 . . . . The residual clause is invalid under Johnson, so
it can no longer mandate or authorize any sentence. Johnson establishes . . . that even
the use of impeccable factfinding procedures could not legitimate a sentence based
on that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J.,
dissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally
vague if it ‘requires a court to picture the kind of conduct that the crime involves in
“the ordinary case,” and to judge whether that abstraction presents a serious potential
risk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)).
Second, in Beckles, the Court addressed whether the residual clause of USSG
§ 4B1.2 of the advisory Guidelines was susceptible to a void for vagueness challenge
15
similar to the challenge that prevailed in Johnson.5 See 137 S. Ct. at 890. Because the
residual clause of USSG § 4B1.2(a)(2) was identical to the language held void for
vagueness in Johnson, several circuit courts, including this court, concluded the rule
from Johnson necessitated the invalidation of the residual clause in § 4B1.2(a)(2)
within the context of the advisory Guidelines. See United States v. Pawlak, 822 F.3d
902 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en
banc); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). But see United States
v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge
to advisory Guidelines).
In Beckles, the Supreme Court rejected the position that the advisory
Guidelines were susceptible to the rule from Johnson or a void for vagueness
5
Recall that USSG § 4B1.2 defined “crime of violence” as:
[A]ny 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.
USSG § 4B1.2(a) (1998–2015) (emphasis added). The emphasized language is the
residual clause that was at issue in Beckles v. United States, 137 S. Ct. 886 (2017),
and is at issue in this case. In 2016, the Sentencing Commission passed an
amendment to the Guidelines adding several enumerated offenses to subsection (2)
and removing the residual clause of the subsection. USSG Supp. to App. C., Amend
798 at 131 (Nov. 1, 2016) (“Amendment 798”). Amendment 798, however, has no
bearing on Mr. Pullen’s case as the Amendment does not apply retroactively. See
USSG § 1B1.10(d) (listing amendments that apply retroactively).
16
challenge. 137 S. Ct. at 894–95. In so holding, the Court observed it had “invalidated
two kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses
and laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and
third emphases added). The Beckles Court further observed that “‘statutes fixing
sentences’ must specify the range of available sentences with ‘sufficient clarity,’” id.
(emphasis added) (first quoting Johnson, 135 S. Ct. at 2557, then quoting United
States v. Batchelder, 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range
of penalties that prosecutors and judges may seek and impose,’ Congress ha[s]
‘fulfilled its duty’” to craft a law that comports with due process, id. at 893 (quoting
Batchelder, 442 U.S. at 126). The Court then distinguished the advisory Guidelines,
which “do not fix the permissible range of sentences,” from the “statute” at issue in
Johnson, which did “fix[] permissible sentences.” Id. at 892. From this, the Court
concluded “[t]he advisory Guidelines . . . do not implicate the twin concerns
underlying [the] vagueness doctrine—providing notice and preventing arbitrary
enforcement.” Id. at 894. As to the first of these concerns, “[a]ll of the notice
required is provided by the applicable statutory range, which establishes the
permissible bounds of the court’s sentencing discretion.” Id. Along those lines, the
Court stated, “[t]he Guidelines . . . do not regulate the public by prohibiting any
conduct or by ‘establishing minimum and maximum penalties for any crime.’” Id. at
895 (quoting Mistretta, 488 U.S. at 396).
The majority opinion in Beckles, however, indicated that the second concern of
the void for vagueness doctrine—preventing arbitrary enforcement—was ameliorated
17
by the advisory nature of the Guidelines post-Booker and the sentencing judge’s
discretion to impose a sentence anywhere within the statutory range. Id. The
distinction between the discretion afforded sentencing judges under the advisory
Guidelines, compared to the mandatory Guidelines, caught the attention of Justice
Sotomayor, whose concurrence stated:
The Court’s adherence to the formalistic distinction between mandatory
and advisory rules at least leaves open the question whether defendants
sentenced to terms of imprisonment before our decision in United States
v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the
Guidelines did “fix the permissible range of sentences”—may mount
vagueness attacks on their sentences. That question is not presented by
this case and I, like the majority, take no position on its appropriate
resolution.
Id. at 903 n.4 (Sotomayor, J. concurring in the judgment) (citations omitted).
Third, in Dimaya, the Supreme Court relied on the void for vagueness doctrine
to strike down 18 U.S.C. § 16(b)’s definition of crime of violence, a provision the
Court described as “similarly worded” to the residual clause struck down in Johnson.
Dimaya, 138 S. Ct. at 1210. In so holding, the opinion of the Court made three
statements potentially important to determining the scope of the new rule from
Johnson. First, Dimaya indicated its ruling was a product of “adhering” to the
analysis set forth in Johnson. Id. Second, Dimaya called Johnson “a straightforward
decision, with equally straightforward application here” such that the “reasoning” of
Johnson “effectively resolved the [issue] before” the Court in Dimaya.6 Id. at 1213.
6
Notably, Dimaya could have, but did not, state that any “rule” from Johnson
“dictated” a result in Dimaya. Cf. Russo v. United States, 902 F.3d 880, 883 (8th Cir.
18
Finally, Dimaya compared § 16(b) and § 924(e)(2)(B)(ii), stating that both statutes
“‘require[] a court to picture the kind of conduct that the crime involves in “the
ordinary case” and to judge whether that abstraction presents’ some not-well-
specified-yet-sufficiently-large degree of risk.” Id. at 1216 (quoting Johnson, 135 S.
Ct. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b)
produces, just as the ACCA’s residual clause did, ‘more unpredictability and
arbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson,
135 S. Ct. at 2558).
D. Analysis
Based on Johnson and its progeny, Mr. Pullen describes the new and
retroactive rule from Johnson as a right not to be sentenced under an ordinary-case
categorical approach requiring a judge to picture conduct of the crime and predict
whether that conduct presents a sufficiently large degree of risk. Before considering
the rule Mr. Pullen advances, we pause to address the iterations of the rule by this
court and others. We then turn to the formulation of the rule endorsed by Mr. Pullen,
ultimately deciding it does not permit relief on a second or successive § 2255 claim
challenging the mandatory Guidelines because the Supreme Court has not yet
2018) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989), for proposition that “[a]
case announces a new rule if the result was not dictated by precedent existing at the
time the defendant’s conviction became final” and concluding that any rule relative
to the mandatory Guidelines would be a new rule because the rule “is not dictated by
Johnson”).
19
announced a rule with respect to the mandatory Guidelines. Thus, we agree with the
district court that Mr. Pullen’s motion does not actually satisfy § 2255(h)(2).
1. Decisions Defining the Rule Announced in Johnson
Several circuit court decisions, including our own decision in Greer, have
stated the new rule created by Johnson as “a defendant’s right not to have his
sentence increased under the residual clause of the ACCA.”7 Greer, 881 F.3d at
1248; see also Green, 898 F.3d at 321 (“[I]n light of Beckles, Johnson’s holding as to
the residual clause in the ACCA created a right only as to the ACCA, and not a
broader right that applied to all similarly worded residual clauses, such as that found
in the advisory Sentencing Guidelines.”); Brown, 868 F.3d at 303 (“Johnson only
recognized that ACCA’s residual clause was unconstitutionally vague.”). If this
phrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to
proceed on his § 2255 motion because his Guidelines range was increased as a result
of application of USSG § 4B1.1 and the residual clause of USSG § 4B1.2(a)(2) of the
mandatory Guidelines and not the residual clause of the ACCA.
The Seventh Circuit, the only circuit to grant relief to a § 2255 movant relying
on Johnson to challenge USSG §§ 4B1.1, 1.2 of the mandatory Guidelines, has
expressed the new rule from Johnson as “a right not to have his sentence dictated by
7
The narrowness of that statement of the rule from Johnson has been called
into question by Dimaya’s application of the rule to a statutory context outside of the
ACCA—albeit on direct review. But we need not define the precise boundaries of the
rule today because Mr. Pullen’s attempt to apply Johnson to the mandatory
Guidelines fails even under his more expansive statement of that rule.
20
the unconstitutionally vague language of the mandatory residual clause.” Cross, 892
F.3d at 294; see Blackstone, 903 F.3d at 1027 (identifying quoted language from
Cross as Seventh Circuit’s statement of new right from Johnson). But the Ninth
Circuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a
high level of generality that it runs afoul of Supreme Court teachings regarding the
parameters for phrasing a new rule for purposes of a collateral proceeding. See
Blackstone, 903 F.3d at 1026 (“The Supreme Court has repeatedly admonished our
court not to advance on its own in determining what rights have been recognized by
the Supreme Court under AEDPA.”) (citations omitted). We need not consider
whether the Seventh Circuit’s articulation of the rule is so broad as to restate existing
law, rather than announcing a new rule, because Mr. Pullen has espoused a more
narrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of
the new rule now.
2. Mr. Pullen’s Statement of the Rule
Mr. Pullen argues the proper statement of the new rule from Johnson is the
right not to be sentenced under an ordinary-case categorical approach that requires
the judge to imagine both the conduct necessary to commit the crime and the degree
of risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can
be drawn from the dissent in Welch and from Dimaya. On the former, as pointed out
above, the dissent in Welch identified the new rule from Johnson in a manner similar
to the rule stated by Mr. Pullen. See Welch, 136 S. Ct. at 1272 (Thomas, J.,
dissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally
21
vague if it ‘requires a court to picture the kind of conduct that the crime involves in
“the ordinary case,” and to judge whether that abstraction presents a serious potential
risk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)). With respect to the
latter, Dimaya read Johnson as concluding that a residual clause is unconstitutionally
vague if it “‘requires a court to picture the kind of conduct that the crime involves in
“the ordinary case,” and to judge whether that abstraction presents’ some not-well-
specified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson,
135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct
regarding the proper phrasing of the new rule from Johnson, three considerations
defeat his ability to rely on the rule to proceed with a second or successive § 2255
motion challenging the mandatory Guidelines.
First, central to whether Mr. Pullen can rely on any new rule from Johnson is
whether application of the rule to the mandatory Guidelines is “dictated by
precedent” and “apparent to all reasonable jurists” as opposed to “susceptible to
debate among reasonable minds.” Russo, 902 F.3d at 883 (quotation marks omitted).8
Neither Johnson, Welch, nor Dimaya addressed a challenge to a provision of the
Guidelines, mandatory or advisory. Instead, the only case to address a Johnson-based
challenge to the Guidelines is Beckles, which concluded the advisory Guidelines were
8
The Eighth Circuit reached this conclusion based on a trio of Supreme Court
cases discussing principles governing new rules: Teague v. Lane, 489 U.S. 288, 301
(1989), Chaidez v. United States, 568 U.S. 342, 347 (2013), and Butler v. MecKellar,
494 U.S. 407, 415 (1990). See Russo v. United States, 902 F.3d 880, 883 (8th Cir.
2018).
22
not susceptible to a void for vagueness challenge. 137 S. Ct. at 897. And while the
advisory nature of the Guidelines at issue in Beckles was undoubtedly important to
the Court’s holding, the concurrence in Beckles indicated that Johnson’s applicability
to the mandatory Guidelines remained an open question. See id. at 903 n.4
(Sotomayor, J. concurring in the judgment) (“The Court’s adherence to the
formalistic distinction between mandatory and advisory rules at least leaves open the
question whether defendants sentenced to terms of imprisonment before our decision
in United States v. Booker . . . may mount vagueness attacks on their sentences.”).9 If
a question remains “open,” it is not dictated by precedent. See Brown, 868 F.3d at
301 (“[I]f the existence of a right remains an open question as a matter of Supreme
Court precedent, then the Supreme Court has not ‘recognized’ that right.”); Raybon,
867 F.3d at 630 (“Because it is an open question, it is not a ‘right’ that ‘has been
newly recognized by the Supreme Court’ let alone one that was ‘made retroactively
applicable to cases on collateral review.’” (quoting 28 U.S.C. § 2255(f)(3))); see also
Blackstone, 903 F.3d at 1026–27 (relying on open nature of question when affirming
denial of § 2255 relief).
Second, central to why the question remains open is that Johnson involved a
federal statute, while the Guidelines, even in their mandatory form, were agency-
9
Even after Dimaya, Justice Sotomayor still believes the question remains
open. See Brown v. United States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting
from denial of certiorari) (“But for petitioners like Brown, who were sentenced long
before Johnson, 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)).
23
created rules formed by the U.S. Sentencing Commission to supplement existing,
congressionally-enacted statutory maximum and minimum sentencing ranges. While
the Guidelines established a mandatory range, this mandatory range always fell
within the statutory minimum and maximum affixed by Congress. See USSG
§ 5G1.1. Thus, regardless of any vagueness in the mandatory Guidelines, the
Supreme Court might conclude the statutory scheme enacted by Congress placed the
defendant on fair notice of the possible penalties he faced for committing an offense.
Cf. Beckles, 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors
and judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting
Batchelder, 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by
the applicable statutory range, which establishes the permissible bounds of the
court’s sentencing discretion.”).10
Third, where the Guidelines replaced an open-ended sentencing scheme under
which judges could impose any sentence within the statutory range, even a somewhat
vague residual clause in the Guidelines provided more guidance to sentencing judges
than existed prior to the mandatory Guidelines.11 See In re Griffin, 823 F.3d 1350,
10
By concluding that the Supreme Court might not strike the residual clause in
the mandatory Guidelines as void for vagueness, we do not mean to suggest the Court
will reach such a result.
11
Mr. Pullen does not identify any case holding that an open-ended sentencing
scheme under which a judge could impose any sentence between a properly
announced statutory minimum and statutory maximum failed under the Due Process
Clause and the void for vagueness doctrine.
24
1354–55 (11th Cir. 2016) (per curiam) (“Because there is no constitutional right to
sentencing only under guidelines, the limitations the Guidelines place on a judge’s
discretion cannot violate a defendant’s right to due process by reason of being vague.
. . . Even vague guidelines cabin discretion more than no guidelines at all.”).12 And,
because the Supreme Court has already indicated in Beckles that a defendant received
fair notice of the broad, but specified, range of penalties he faced under the statutory
scheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing
judge’s discretion was more cabined with the residual clause in USSG § 4B1.2(a)(2)
than in the absence of any Guidelines, the Court might conclude that the two
concerns underlying the void for vagueness doctrine are not present in the context of
the mandatory Guidelines.
12
To be sure, the Supreme Court could conclude the language of USSG
§ 4B1.2, within the context of the mandatory Guidelines, did not satisfy due process
and void for vagueness considerations. Justice Sotomayor suggested the possibility of
such a result within her concurrence in Beckles:
[A] district court’s reliance on a vague Guideline [such as U.S.S.G. § 4B1.2]
creates serious risk of “arbitrary enforcement.” . . . It introduces an
unacceptable degree of arbitrariness into sentencing proceedings to begin by
applying a rule that is so vague that efforts to interpret it boil down to
guesswork and intuition.”
137 S. Ct. at 901 (Sotomayor, J., concurring) (citations omitted). The point is that the
Supreme Court has not yet answered the question. This is fatal to Mr. Pullen’s
successive § 2255 motion, especially within in the context of a § 2255(h)(2) analysis
where Mr. Pullen must identify a new rule retroactively applicable to his claim for
relief.
25
In accord with the second and third reasons discussed above, Beckles observed
that the Court has “invalidated two kinds of criminal laws as ‘void for vagueness’:
laws that define criminal offenses and laws that fix the permissible sentences for
criminal offenses.” Id. at 892 (first and third emphases added). As to the second type
of laws, “‘statutes fixing sentences’ must specify the range of available sentences
with ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson, 135 S. Ct. at
2557, then quoting United States v. Batchelder, 442 U.S. 114, 123 (1979)). But, the
mandatory Guidelines were not laws or statutes; rather, they merely operated like
statutes. Thus, while the Supreme Court might one day conclude, by relying on the
actual innocence gateway,13 that the mandatory Guidelines sufficiently took the form
of a law or a statute so as to expose the mandatory Guidelines to a void for vagueness
challenge, such a conclusion or rule is (1) debatable and (2) essential to Mr. Pullen’s
ability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not
yet established by the Supreme Court and, consequently, not made retroactively
applicable by the Court.14 This conclusion provides a sufficient basis to preclude Mr.
13
This circuit does not recognize actual innocence in the sentencing context,
except in capital sentences. See United States v. Denny, 694 F.3d 1185, 1191 (10th
Cir. 2012) (“[A] defendant cannot be actually innocent of a noncapital sentence[.]”
(internal quotation marks omitted)). But other circuits do permit such arguments, see
Cristin v. Brennan, 281 F.3d 404, 421–22 (3d Cir. 2002) (collecting cases), and the
Supreme Court has left open the question of whether a prisoner can rely on the actual
innocence gateway to challenge a noncapital sentence, see Dretke v. Haley, 541 U.S.
386, 393–94 (2004).
14
The Court could conclude that the mandatory Guidelines, although not
statutes, are subject to a void for vagueness challenge and that they do not satisfy due
26
Pullen from proceeding on his § 2255 motion. See Blackstone, 903 F.3d at 1028;
Russo, 902 F.3d at 883.
3. Summation
Mr. Pullen is not entitled to proceed on his § 2255 motion under his iteration
of the new rule from Johnson. Accordingly, the district court correctly concluded Mr.
Pullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing
a second or successive § 2255 motion. This conclusion is consistent with the rulings
of six of our seven sibling circuits, which deny § 2255 relief because Johnson either
(1) did not recognize a new right applicable to the mandatory Sentencing Guidelines
for purposes of the requirement in 28 U.S.C. § 2255(f)(3) or (2) did not create a new
rule applicable to the mandatory Sentencing Guidelines for purposes of meeting the
requirements in 28 U.S.C. § 2255(h)(2). See Blackstone, 903 F.3d at 1028 (denying
§ 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory
Guidelines); Russo, 902 F.3d at 883–84 (same); Green, 898 F.3d at 321–33 (same);
Brown, 868 F.3d at 301–02 (same); Raybon, 867 F.3d at 629–31 (same); In re
process concerns because they permitted judges to prescribe sentencing ranges
arbitrarily. See Beckles, 137 S. Ct. at 894-95 (explaining that a vague law which
permits judges to prescribe sentencing ranges invites arbitrary enforcement). But, to
date, the Supreme Court has not announced a new rule retroactively applicable to the
mandatory Guidelines. Nor, as apparent from the denials of certiorari, has the
Supreme Court seen fit to take up the issue of Johnson’s impact on the mandatory
Guidelines. And unless and until it does, Mr. Pullen cannot establish that his
successive § 2255 motion actually relies on a new rule for purposes of authorization
under § 2255(h)(2).
27
Griffin, 823 F.3d at 1354–56 (denying authorization under § 2255(h)(2) because
Johnson did not announce new rule applicable to the mandatory Guidelines).15 But
see Cross, 892 F.3d at 294.16 It is also consistent with the Supreme Court’s recent
denials of certiorari on a series of petitions seeking reversal of the aforementioned
circuit decisions. And while denials of certiorari often do not shed light on the merits
15
Although the Fourth, Sixth and Eleventh Circuits reached their decisions
before Dimaya, the Sixth and Eleventh Circuits continue to rely respectively upon
Raybon and Griffin after Dimaya. See Robinson v. United States, 736 F. App’x 599,
599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court
decision and remained law of the circuit); Foxx v. United States, 736 F. App’x 253,
254 (11th Cir. 2018) (“[W]e cannot deviate from In re Griffin given the current state
of the law, and this forecloses Foxx’s appeal.”); Lewis v. United States, 733 F. App’x
501, 503 (11th Cir. 2018) (concluding In re Griffin “remains binding”). It does not
appear the Fourth Circuit has revisited the issue since Dimaya.
Separately, we observe that while In re Griffin involved the denial of
authorization for failing to make a prima facie showing under § 2255(h)(2) and 28
U.S.C. § 2244(b)(3), 823 F.3d 1350, 1351, 1354–56 (11th Cir. 2016) (per curiam),
Mr. Pullen already passed through the prima facie gate when we granted
authorization. Thus, rather than relying on § 2244(b)(3) when dismissing Mr.
Pullen’s § 2255 motion, the district court correctly relied on § 2244(b)(4) to conclude
Mr. Pullen did not satisfy the requirements set forth by § 2255(h)(2).
16
Mr. Pullen argues the First Circuit, in Moore v. United States, 871 F.3d 72
(1st Cir. 2017), reached the same result as the Seventh Circuit. Moore, however,
involved a preliminary, or prima facie, determination under 28 U.S.C. § 2244(b)(3)
that a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines
and not the conclusion that the second or successive § 2255 motion was actually
premised on a new rule of constitutional law made retroactive by the Supreme Court
for purposes of the 28 U.S.C. § 2244(b)(4) analysis. See Moore, 871 F.3d at 80
(“Having explained the focused yet tentative nature of the examination called for in
evaluating a request to file a second or successive § 2255 motion, we turn next to
Moore’s motion.”). Thus, even if other language in Moore suggests the panel of the
First Circuit would have reached the same conclusion had it been conducting a
§ 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent
as to the § 2244(b)(4) question.
28
of an issue, see United States v. Carver, 260 U.S. 482, 490 (1923), these denials of
certiorari (1) were over a two justice dissent, which expressly states the question is
open and not likely to ever be resolved; and (2) the individual defendants are now
precluded from filing new and timely § 2255 motions based on Johnson should the
Supreme Court later adopt the position advanced in their certiorari petitions.17
IV. CONCLUSION
We conclude Johnson did not create a new rule of constitutional law applicable to
the mandatory Guidelines because (1) Beckles suggests the void for vagueness doctrine’s
applicability to the mandatory Guidelines remains an open question; (2) the Guidelines,
even in their mandatory form, were not statutes; and (3) even a vague provision of the
Guidelines provided more guidance to defendants and sentencing judges than did the
congressionally-enacted statutory minimum and maximum sentences that provided
defendants sufficient due process. Although the Supreme Court might reject all of these
considerations and invalidate the residual clause of the mandatory Guidelines, it has not
yet done so. Because Johnson did not create a new rule of constitutional law applicable to
17
In concluding that, regardless of how the new rule from Johnson is phrased,
Johnson does not create a new rule of constitutional law relative to the mandatory
Guidelines, we find it unnecessary to decide whether Greer’s statement of the rule
from Johnson is too narrow in light of Dimaya. Rather, it is clear Greer’s holding,
that Johnson does not create a new rule of constitutional law applicable to the
mandatory Guidelines, remains good law.
29
the mandatory Guidelines, the district court properly denied relief and dismissed Mr.
Pullen’s § 2255 motion pursuant to § 2255(h)(2). Accordingly, we AFFIRM.18
18
We DENY Mr. Pullen’s motion to file a pro se opening brief and his motion
to file a pro se supplemental brief.
30