Shea v. United States ( 2020 )

United States Court of Appeals
For the First Circuit
No. 17-1899
ANTHONY M. SHEA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Wade M. Zolynski, Federal Public Defender Office, for
appellant.
Seth Aframe, Assistant United States Attorney, for appellee.
September 28, 2020
THOMPSON, Circuit Judge. In Johnson v. United States,
576 U.S. 591, 597 (2015), the Supreme Court held that a jumble of
words in a federal law could not be used to fix a defendant's
sentence, a rule that applies retroactively. See Welch v. United
States, 136 S. Ct. 1257, 1264 (2016). Years ago, judges used the
same wording in another binding rule with "the force and effect of
law[ ]," United States v. Booker, 543 U.S. 220, 234 (2005) —
§ 4B1.2(a)(2) of the U.S. Sentencing Guidelines — to fix
defendants' sentences. Because Johnson made that
unconstitutional, we reverse the district court's decision denying
the motion to vacate and remand for further proceedings.
Background
Twenty-five years ago, Anthony M. Shea drove a stolen
minivan to try to rob a bank in Londonderry, New Hampshire. See
United States v. Shea, 159 F.3d 37, 38 (1st Cir. 1998). Using a
pair of revolvers, Shea and another robber marched two bank tellers
to the vault. Id. When the tellers couldn't open it (a timed
locking device kept it shut), Shea and his partner left empty-
handed. Id. One week later, Shea's criminal career came to an
abrupt stop: after another aborted robbery in neighboring
Massachusetts, his getaway car hit a telephone pole. See United
States v. Shea, 150 F.3d 44, 47 (1st Cir. 1998). A squad of FBI
agents, who'd been in hot pursuit, pulled Shea from the wreckage
and a black revolver from his pants. See id. One of the
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Londonderry tellers later identified the gun as the weapon Shea
had used in New Hampshire. Shea, 159 F.3d at 38.
For the Londonderry robbery, Shea was tried in the
federal court for the District of New Hampshire, where a jury found
him guilty of four charges: armed attempted bank robbery under 18
U.S.C. § 2113(a) and (d), using a firearm during a crime of
violence under 18 U.S.C. § 924(c), interstate transportation of a
stolen vehicle under 18 U.S.C. § 2312, and interstate possession
of a stolen vehicle under § 2312. Id. at 38. For purposes of
Count Two, § 924(c)(3) defined "crime of violence" as a felony
offense that
(A) has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of committing
the offense.
18 U.S.C. § 924(c)(3). The government alleged that Count One —
the armed attempted bank robbery — qualified as a "crime of
violence." Soon after the guilty verdict, the judge sentenced
Shea to 567 months (that is, over forty-seven years) in federal
prison, where he dwells to this day.1
1 Shea was also prosecuted in the District of Massachusetts
for the aborted robbery there and received a sentence of 382 months
in prison. Shea, 150 F.3d at 47. Today, he is also serving a
life sentence for a later set of convictions for a string of bank
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At the time, the U.S. Sentencing Guidelines ordinarily
set the range of sentences the judge could impose. Then, as they
do now, the Guidelines gave each defendant two scores — an "offense
level" (based on the seriousness of his offense of conviction,
plus specified aggravating and mitigating facts in the defendant's
particular case) and a "criminal history category" (based on the
defendant's prior convictions). United States v. Martínez-
Benítez, 914 F.3d 1, 2 n.2 (1st Cir. 2019). The judge plotted
those two scores on a chart and got the applicable sentencing
range. Id. When Shea was sentenced, the Guidelines were
"mandatory and binding on all judges." Booker, 543 U.S. at 233.
To begin with, Shea's crimes of conviction and (fairly
long) criminal history gave him an offense level of 28 and a
criminal history category of V. See U.S. Sentencing Guidelines
Manual ch. 3, pt. A (U.S. Sentencing Comm'n 1995) (hereinafter
"U.S.S.G."). Standing alone, that would have yielded a Guideline
range of 130–162 months in prison, plus the mandatory twenty-year
consecutive sentence for his § 924(c) conviction, which was
unaffected by the Guideline calculation — nothing to shrug off.
As then required, however, the judge classified Shea as a "Career
Offender" under § 4B1.1, which applies when a defendant commits
his third "crime of violence" or "controlled substance offense."
and armored car robberies he and his gang committed in the mid-
90s. See United States v. Shea, 211 F.3d 658, 664 (1st Cir. 2000).
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U.S.S.G. § 4B1.1. At the time, the Guidelines defined "crime of
violence" like the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e)(2)(B), defined "violent felony": as a felony offense
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.
U.S.S.G. § 4B1.2(a) (1997) (emphasis added). (Stick a pin in this:
the first sentence is known as the "force clause" and the last,
catch-all phrase is known as the "residual clause"). The court
determined that two of Shea's past convictions — one in 1982 for
federal armed bank robbery and another in 1992 for assault and
battery on a police officer ("ABPO") under Massachusetts law —
both fit the bill. At the time, they were both qualifying offenses
under the residual clause. See United States v. Fernandez, 121
F.3d 777, 778–80 (1st Cir. 1997); United States v. McVicar, 907
F.2d 1, 1 (1st Cir. 1990). The Career Offender Guideline rocketed
Shea's Guideline range (again minus the twenty-year § 924(c) tack-
on) from 130–162 months to 262–327 months in prison. Because the
Guidelines were mandatory, and no one (including the judge)
identified any ground for departure, Shea claims that none was
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available, which meant the judge had to sentence him within the
Guideline range.
A lot changed in the next twenty years. In Booker, the
Supreme Court held the mandatory Guidelines system
unconstitutional and struck the provision that made them binding
on judges. 543 U.S. at 245. Now the Guidelines are "effectively
advisory." Id. "Although [they] remain 'the starting point and
the initial benchmark' for sentencing, a sentencing court may no
longer rely exclusively on the Guidelines range; rather, the court
'must make an individualized assessment based on the facts
presented' and the other statutory factors." Beckles v. United
States, 137 S. Ct. 886, 894 (2017) (quoting Gall v. United States,
552 U.S. 38, 49–50 (2007); see also Gall, 522 U.S. at 50
(explaining that a sentencing judge may not even "presume the
[guideline] range is reasonable").
Then, five terms ago, the Court held that "imposing an
increased sentence under the residual clause of the [ACCA] violates
the Constitution's guarantee of due process" because the clause
was unconstitutionally vague. Johnson, 576 U.S. at 606. In doing
so, the Court overturned its own precedent and announced a "new
rule" of law — a rule not "dictated by precedent." Welch, 136 S.
Ct. at 1264 (emphasis omitted) (quoting Teague v. Lane, 489 U.S.
288, 301 (1989)). "Generally, new rules of law do not apply to
cases concluded before the new law is recognized." Butterworth v.
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United States, 775 F.3d 459, 463 (1st Cir. 2015). But the Supreme
Court soon made clear that Johnson triggered an exception: as a
"substantive" rule that curbed the scope of a criminal law (the
ACCA), it applies retroactively. See Welch, 136 S. Ct. at 1265–
68.
Within a year after the Johnson decision, Shea moved to
vacate his conviction and sentence under 28 U.S.C. § 2255, urging
that the Court's reasoning in Johnson made the similar residual
clauses in § 924(c) and § 4B1.2(a) unconstitutionally vague, as
well. Shea argued that shorn of that clause, § 924(c) did not
support his conviction for carrying a firearm in relation to a
"crime of violence," and the pre-Booker Career Offender Guideline
wrongfully enhanced his sentence. He urged (as he does on appeal)
that his instant conviction for armed attempted bank robbery under
federal law did not satisfy § 924(c)'s force clause, and that none
of his prior convictions — including for federal armed bank
robbery, Massachusetts ABPO, and Massachusetts assault and battery
("A&B") — satisfied § 4B1.2(a)'s force clause or matched the
generic offenses it enumerates. See United States v. Faust, 853
F.3d 39, 58 (1st Cir. 2017) (holding intentional ABPO is not a
violent felony under the ACCA's identical force clause); see also
United States v. Rose, 896 F.3d 104, 110, 115 (1st Cir. 2018)
(explaining that crimes carrying a mens rea of ordinary
recklessness, including assault and battery with a dangerous
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weapon under Massachusetts and Rhode Island law, are not violent
felonies under the force clause). Shea therefore asked the judge
to vacate his § 924(c) (Count Two) conviction and resentence him
without the Career Offender enhancement.
Generally, the federal habeas statute demands a prisoner
file any motion to vacate within a year of "the date on which the
judgment of conviction became final." 28 U.S.C. § 2255(f)(1).
There are exceptions, though. Section 2255(f)(3) restarts the
one-year clock on "the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review." Using that springboard,
Shea claimed that Johnson reopened the one-year window to mount
his vagueness challenges to the § 924(c) and § 4B1.2(a)(2) residual
clauses, so the court should vacate his § 924(c) conviction and
resentence him without the career-offender enhancement.
The district judge disagreed and dismissed Shea's
claims. Shea had blown the usual one-year post-conviction
deadline, and § 2255(f)(3) did not apply, the judge held. He
acknowledged that Johnson "newly recognized" a retroactive rule.
But he held that subsection (f)(3)'s exception required more. In
his view, "§ 2255(f)(3) does not come into play unless reasonable
jurists would agree that the new rule on which the petition is
based dictates the result that the petitioner seeks." "Absent
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such agreement," he'd held before, "the prisoners' claimed right
must itself be treated as a new right that must await recognition
by the Supreme Court before the statute of limitations can be
restarted by § 2255(f)(3)." Kucinski v. United States, No. 16-
CV-201-PB, 2016 WL 4926157, at *4 (D.N.H. Sept. 15, 2016).
Applying that framework to this case, he concluded that judges
could reasonably debate whether the rule minted in Johnson made
the residual clauses in the pre-Booker Guidelines or § 924(c)
unconstitutionally vague, and therefore, Shea's petition was too
late (because it was filed long after his conviction became final)
and premature (because the Supreme Court had not yet "recognized"
a right that would entitle Shea to relief). Acknowledging that
the issue wasn't clear-cut, however, the judge granted a
certificate of appealability on the question of whether
§ 2255(f)(3) reopened the one-year period for Shea to bring his
Johnson-based attacks on his conviction and sentence. Shea took
the invite and appealed.
Framing the Issue
While Shea's appeal was pending, the Supreme Court
decided United States v. Davis, which held that § 924(c)'s residual
clause was unconstitutionally vague. 139 S. Ct. 2319, 2336 (2019).
In light of Davis, the parties now agree that Shea's Johnson-based
challenge to his § 924(c) conviction is timely, and that we should
remand for the district court to address whether Shea's conviction
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for armed attempted bank robbery under 18 U.S.C. § 2113(a) and (d)
qualifies as a crime of violence under § 924(c)'s surviving
elements clause.2
With that settled, the only question left is whether
Johnson reopened the one-year window for any Johnson-based
challenges to the pre-Booker Guidelines' residual clause. Most of
our sister circuits have held it did not. See Nunez v. United
States, 954 F.3d 465, 467 (2d Cir. 2020); United States v. London,
937 F.3d 502, 503 (5th Cir. 2019); United States v. Blackstone,
903 F.3d 1020, 1023 (9th Cir. 2018); Russo v. United States, 902
F.3d 880, 883 (8th Cir. 2018); United States v. Green, 898 F.3d
315, 321 (3d Cir. 2018); United States v. Greer, 881 F.3d 1241,
1248 (10th Cir. 2018); United States v. Brown, 868 F.3d 297, 303
(4th Cir. 2017); Raybon v. United States, 867 F.3d 625, 629-30
2 Before us, the parties focused on the issue of whether
attempted bank robbery under § 2113(a) constitutes a "crime of
violence" under § 924(c). Although we leave the merits of the
§ 924(c) issue for the district court to take the first (and maybe
the only) crack at it, we add that it appears Shea was convicted
of the enhanced version of the offense -- not just attempted bank
robbery under § 2113(a) but armed attempted bank robbery under
§ 2113(d). This difference may be significant. See United States
v. Johnson, 899 F.3d 191, 204 (3d Cir. 2018) ("Johnson focuses on
§ 2113(a) . . . [h]owever, Johnson was not convicted under
§ 2113(a), but rather § 2113(d) . . . ."); United States v. Taylor,
848 F.3d 476, 493 (1st Cir. 2017) (analyzing similar challenge to
a § 924(c) conviction in light of "the enhancement provisions that
applied to Taylor's conviction"); see also Simpson v. United
States, 435 U.S. 6, 13 n.6 (1978) (discussing § 2113(d)); United
States v. Spinney, 65 F.3d 231, 236 (1st Cir. 1995) (same).
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(6th Cir. 2017). That these decisions have snowballed down one
path doesn't mean we should follow them, though. See In re Atlas
IT Exp. Corp., 761 F.3d 177, 182–83 (1st Cir. 2014) (citing the
"phenomenon in our courts of appeal and elsewhere — sometimes
called 'herding' or 'cascading'" under which later successive
courts to address a question "are increasingly more likely to
simply go along with the developing group consensus"). Indeed,
one circuit and most trial judges in ours have reached the opposite
conclusion. See Cross v. United States, 892 F.3d 288, 293–94,
304–06 (7th Cir. 2018).3 Though we take a different route than
the Seventh Circuit's, we hold that § 2255(f)(3) authorizes Shea
3 See Diaz-Rodriguez v. United States, C.A. No. 16-2064, 2020
WL 265932, at *1 (D.P.R. Jan. 17, 2020); Boria v. United States,
427 F. Supp. 3d 143, 149 (D. Mass. 2019); United States v. Moore,
Cr. No. 00-10247, 2018 WL 5982017, *2-3 (D. Mass. Nov. 14, 2018);
Bartolomeo v. United States, 316 F. Supp. 3d 539, 546 (D. Mass.
2018); United States v. Roy, 282 F. Supp. 3d 421, 427-428 (D. Mass.
2018); Reid v. United States, 252 F. Supp. 3d 63, 66-68 (D. Mass.
2017); see also Hodges v. United States, 778 F. App'x 413, 414–15
(9th Cir. July 26, 2019) (Berzon, J., concurring) (arguing
Blackstone was wrongly decided); Chambers v. United States, 763 F.
App'x 514, 528 (6th Cir. Feb. 21, 2019) (Moore, J., concurring)
(arguing Raybon was wrongly decided); London, 937 F.3d at 510-11
(Costa, J., concurring) (arguing that the Fifth Circuit is "on the
wrong side of a split over the habeas limitations statute"); Brown,
868 F.3d at 304–311 (Gregory, C.J., dissenting); United States v.
Carter, 422 F. Supp. 3d 299, 314–17 (D.D.C. 2019); United States
v. Hammond, 354 F. Supp. 3d 28, 40 (D.D.C. 2018).
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to litigate his Johnson-based challenge to his sentence on its
merits.
We start with the common ground. The parties agree that
to show his petition is timely under § 2255(f)(3), Shea "needs to
establish that [Johnson]: (1) recognized a new right that is
(2) 'retroactively applicable' on collateral review."
Butterworth, 775 F.3d at 464. They agree that he has. In the
government's telling, however, it is not enough that Shea relies
on the rule minted in Johnson. Rather (it goes on) the rule from
Johnson must "necessarily dictate" that the residual clause in
pre-Booker Guidelines was unconstitutionally vague. In other
words (runs the argument), if to grant Shea's petition, the habeas
court would need to craft a new right — meaning a new rule of law
— beyond the one "recognized" in Johnson, then Shea's claim is too
early, and Johnson did not restart the clock under § 2255(f)(3).
See London, 937 F.3d at 506–09 (using this approach); Russo, 902
F.3d at 883 ("[T]he timeliness of [a Johnson-based] claim depends
on whether [the petitioner] is asserting [only] the right initially
recognized in Johnson or whether he is asserting a different right
that would require the creation of a second new rule."); Kucinski,
2016 WL 4926157, at *4 (same).
The Seventh Circuit has rejected this third step, saying
it "improperly reads a merits analysis into the limitations
period." Cross, 892 F.3d at 293–94 (holding that under
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§ 2255(f)(3), the petitioner only had to "claim the benefit of
[the] right that the Supreme Court has recently recognized" in
Johnson and did not have to "prove that the right applie[d] to his
situation"); Hammond, 354 F. Supp. 3d at 41 ("To 'assert' means
'[t]o state positively' or '[t]o invoke or enforce a legal right.'
Thus, in order to be timely under § 2255(f)(3), a § 2255 motion
need only 'invoke' the newly recognized right, regardless of
whether or not the facts of record ultimately support the movant's
claim." (alterations in original) (quoting United States v.
Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017)). We have not decided
the issue.4 But since we side with Shea anyway, we assume without
4 Our decision in Butterworth did not hold that § 2255(f)(3)
requires that the right "newly recognized" by the Supreme Court
must compel the relief the petitioner seeks, as the government
suggests. There, we held that a recent Supreme Court case that
announced a new rule did not apply retroactively to a petitioner
sentenced before the case came down. 775 F.3d at 468. We did not
hold that a new rule, if retroactive, would need to dictate the
outcome on the merits of the petition in order for the petition to
be timely. Indeed, in Moore v. United States, we held that a
successive petition raising the same claim Shea does — a Johnson-
based challenge to the pre-Booker Guidelines' residual clause —
was timely under 28 U.S.C. § 2255(f)(3) because it was filed within
one year after Johnson, even though we expressly declined to decide
whether Johnson applied to the pre-Booker Guidelines. 871 F.3d
72, 77 n.3 (1st Cir. 2017). It is unclear if that statement in
Moore binds us here, since our overall analysis (which chiefly
concerned the requirements for filing a successive petition) was
necessarily "tentative." Id. at 80.
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deciding that the government and the district court read §
2255(f)(3) correctly.
Therefore, to see if Shea's petition is timely under
§ 2255(f)(3), we'll ask (based on the facts Shea asserts) if
granting it would require the habeas court to forge a new rule of
law not recognized in Johnson. "'[A] case announces a new rule'"
if "'it breaks new ground or imposes a new obligation' on the
government" — that is, "'if the result [is] not dictated by
precedent[.]'" Chaidez v. United States, 568 U.S. 342, 347 (2013)
(first alteration in original) (quoting Teague, 489 U.S. at 301).
"And a holding is not so dictated" unless it "would [be] 'apparent
to all reasonable jurists.'" Id. (quoting Lambrix v. Singletary,
520 U.S. 518, 527–528 (1997)). "But that account has a flipside":
"a case does not 'announce a new rule when it is merely an
application of the principle that governed' a prior decision to a
different set of facts." Id. at 347–48 (alterations and internal
quotation marks omitted) (quoting Teague, 489 U.S. at 307). So
when a court "simply applie[s]" the same "constitutional
principle" to a "closely analogous" case, it does not create a new
rule. Yates v. Aiken, 484 U.S. 211, 216 (1988) (quoting Desist v.
United States, 394 U.S. 244, 263 (1969) (Harlan, J., dissenting)).
In other words, our timeliness analysis under
§ 2255(f)(3) will overlap with the merits of Shea's claim, because
we must determine whether Johnson establishes beyond reasonable
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debate that the pre-Booker Guidelines' residual clause was too
vague to constitutionally enhance a defendant's sentence, at least
when no departure was applicable (as Shea asserts none was here).
In a more preliminary posture, we've already held that there was
a "reasonable likelihood" that the answer was yes: that a
defendant who (like Shea) claimed he'd been subjected to an
enhanced sentence because of the pre-Booker residual clause could
challenge his sentence as violating the vagueness rule minted in
Johnson. See Moore v. United States, 871 F.3d 72, 74, 80–84 (1st
Cir. 2017) (holding the petitioner made a "prima facie" showing
that his Johnson-based challenge ticked the boxes for filing a
successive petition, at least where there was "no suggestion . . .
that Moore qualified for a departure"). In this case, we go one
step further: even applying the government's framework (i.e., the
Teague test), we hold that Johnson dictates the rule Shea asserts:
namely, that § 4B1.2(a)(2)'s residual clause was
unconstitutionally vague and could not be applied to enhance the
permissible range of sentences a judge could impose, as Shea claims
it did in his case. As a result, we hold that Shea "asserts" the
same right "newly recognized" in Johnson, making his petition
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(filed within a year of that decision) timely. 28 U.S.C.
§ 2255(f)(3).5
Analysis
Johnson and Beckles
Johnson began with a well-established rule: that "the
Government violates [the Fifth Amendment] by taking away someone's
life, liberty, or property under a criminal law so vague that it
fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary
enforcement." 576 U.S. at 595 (quoting Kolender v. Lawson, 461
U.S. 352, 357–358 (1983)). Such vague laws violate "the first
essential of Due Process." Id. at 595–96 (quoting Connally v.
Gen. Constr. Co., 269 U.S. 385, 391 (1926)). In the key phrase
here, the Court explained: "These principles apply not only to
statutes defining elements of crimes, but also to statutes fixing
sentences." Id. at 596 (citing United States v. Batchelder, 442
U.S. 114, 123 (1979)). The Court then moved to the residual
language at issue, which defined "violent felony" to include
certain enumerated offenses and "any felony that involves conduct
that presents a serious potential risk of physical injury to
another." Id. at 593. That phrase, as the Court had long construed
5 As we'll explain, we do not here decide whether Shea was in
fact (as he contends) ineligible for a departure and exposed to
higher sentences on account of the residual clause, but instead
leave those merits issues for the district court to resolve.
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it (to "require[ ] 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 physical
injury"), left "grave uncertainty" about both "how to estimate the
risk posed by a crime" and "how much risk it takes for a crime to
qualify as a violent felony." Id. at 596–98. "Invoking so
shapeless a provision to condemn someone to prison for 15 years to
life does not comport with the Constitution's guarantee of due
process." Id. at 602. After Johnson, all but one circuit to
address the issue held that "[§] 4B1.2(a)'s identically-worded
[and interpreted] residual clause was unconstitutionally vague."
United States v. Frates, 896 F.3d 93, 96 (1st Cir. 2018). In our
circuit, the government "routinely" conceded that Johnson made the
Guidelines' residual clause unconstitutionally void. Id.Two years later, however, the Supreme Court held that
although § 4B1.2(a)(2) contained the same vague language as the
ACCA, the advisory Guidelines were "not subject to vagueness
challenges." Beckles, 137 S. Ct. at 890. The Court made clear
that under Johnson, "'statutes fixing sentences' . . . must specify
the range of available sentences with 'sufficient clarity.'" Id.
at 892 (first quoting Johnson, 576 U.S. at 596, then quoting
Batchelder, 442 U.S. at 123). The ACCA had "fixed . . . a higher
range of sentences for certain defendants" because it "required
sentencing courts to increase a defendant's prison term from a
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statutory maximum of 10 years to a minimum of 15 years" with a
maximum of life. Id. (emphasis added). In contrast, though, the
advisory Guidelines do not "fix the permissible range of sentences"
a judge may legally impose. Id. They "merely guide the exercise
of a court's discretion in choosing an appropriate sentence within
the statutory range," and "'do not constrain that discretion.'"
Id. at 894 (alteration omitted) (quoting Peugh v. United States,
133 S. Ct. 2072, 2089 (2013) (Thomas, J., dissenting)). For that
reason, the Court held, they do not "implicate the twin concerns
underlying the vagueness doctrine — providing notice and
preventing arbitrary enforcement." Id.; Moore, 871 F.3d at 77
(explaining that "Beckles's reasoning relied on the conclusion
that the post-Booker guidelines 'do not fix the permissible range
of sentences,' and therefore 'do not implicate the twin concerns
underlying vagueness doctrine'").
But what about pre-Booker sentences? Johnson and
Beckles did not directly address the mandatory Guidelines that
governed Shea's sentence. See Beckles, 137 S. Ct. at 903 n.4
(Sotomayor, J., concurring).6 Many circuits seem to think that
6 Unlike our sister circuits, we do not believe that Justice
Sotomayor's oft-cited comment in her concurrence — that the Court
left "open the question whether defendants sentenced to terms of
imprisonment before our decision in [Booker] . . . may mount
vagueness attacks on their sentences" — means that judges could
reasonably debate whether Johnson applies to the pre-Booker
Guidelines. Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J.,
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ends the matter — holding that since the Court has not expressly
held that the rule coined in Johnson applies to the pre-Booker
Guidelines, a petitioner cannot rely on that rule to challenge a
mandatory-Guideline career-offender sentence under § 2255(f)(3),
even (apparently) if any reasonable jurist would conclude it
applies to the mandatory Guidelines.7 But not even the government
urges us to read § 2255(f)(3) so woodenly. Nor could it: as we
concurring). First, the Justice's statement could easily be read
to mean that the "open" question is whether prisoners sentenced
before Booker — mostly all of whose convictions became final more
than a year before Johnson — may invoke § 2255(f)(3) to "mount
vagueness attacks on their sentences" (the question we answer yes
to in this case). Id. Second, even if she meant to address the
Teague question here (which was far afield from the issue
presented), a non-controlling opinion for one justice is, of
course, not binding on us. Finally, in Stringer (discussed more
below), the Court explained that its holding did not establish a
"new rule" even though it answered a question a previous majority
opinion had "express[ly]" deemed an "open" one. Stringer v. Black,
503 U.S. 222, 230 (1992).
7 See Nunez, 954 F.3d at 470 (reasoning that "Johnson by its
own terms addresses only the ACCA," so "the rule established in
Johnson was specific" to that statute); Blackstone, 903 F.3d at
1026 (holding petition untimely because "[n]either Johnson nor
Welch mentioned the mandatory or advisory Sentencing Guidelines");
Green, 898 F.3d at 321 (reasoning that "Johnson's holding as to
the residual clause in the ACCA created a right only as to the
ACCA" because "[i]t says nothing about a parallel right to not be
sentenced under Sentencing Guidelines, whether advisory or
mandatory"); 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,"
and the petitioner could not use § 2255(f)(3) "to apply the
reasoning of Johnson in a different context not considered by the
Court."); Brown, 868 F.3d at 303 (reasoning that "Johnson only
recognized that ACCA's residual clause was unconstitutionally
vague" and "did not touch upon" the Guidelines' identically-worded
residual clause); Raybon, 867 F.3d at 630 (similar).
- 19 -
said in Moore, "Congress in § 2255 used words such as 'rule' and
'right'" because "it recognizes that the Supreme Court guides" —
and indeed binds — "the lower courts not just with technical
holdings" confined to the precise facts of each case "but with
general rules that are logically inherent in those holdings." 871
F.3d at 82; see also Booker, 543 U.S. at 238 ("More important than
the language used in our holding . . . are the principles we sought
to vindicate."). As the government accepts, a rule or right
recognized in one case can (and often does) control another with
a "different set of facts." Chaidez, 568 U.S. at 348. So a
decision striking one law often compels a court to undo another.
In Stringer v. Black, that's just what happened. 503
U.S. 222, 229 (1992). There, the Supreme Court held that its
decision voiding one state's capital sentencing scheme (because it
allowed the jury to return a death verdict based on an aggravating
factor that state law defined too vaguely) "controlled" its later
decision striking another state's law that used different
language, so that the second case "did not announce a new rule."
Id. at 228–29 ("[I]t would be a mistake to conclude that the
vagueness ruling of Godfrey was limited to the precise language
before us in that case."). Indeed, the Court went further.
Although there were "differences in the use of aggravating factors"
under each state's schemes, the Court concluded that "those
differences could not have been considered a basis for denying
- 20 -
relief" in light of the principles established by other cases the
Court had decided before the petitioner's conviction became final.
Id. at 229–30. In other words, the Supreme Court does not announce
a new rule every time it applies the same constitutional principle
to a new regulatory scheme. "If a proffered factual distinction
between the case under consideration and pre-existing precedent
does not change the force with which the precedent's underlying
principle applies, the distinction is not meaningful, and any
deviation from precedent is not reasonable." Wright v. West, 505
U.S. 277, 304 (1992) (O'Connor, J., concurring) (citing Stringer,
503 U.S. at 237).
The Mandatory Guidelines
Even so, says the government, the rule applied in Johnson
does not control the pre-Booker Guidelines because, unlike the
ACCA, the mandatory Guidelines were not "statutes" and do not "fix
sentences" because they "did not increase the statutory minimum or
maximum penalty facing the defendant." To be sure (the government
admits) "[t]he guideline regime cabined where within the statutory
range the district court had to sentence the defendant," but it
permitted departures in some circumstances. At least three other
circuits have found these distinctions provide reasonable grounds
to debate whether Johnson's rule reaches the pre-Booker
- 21 -
Guidelines.8 One (and only one) circuit has actually debated the
issue by holding that on the merits, the pre-Booker residual clause
would be immune to Johnson-based vagueness challenges. See In re
Griffin, 823 F.3d 1350, 1354–55 (11th Cir. 2016) (reasoning that
mandatory Guidelines differed meaningfully from the ACCA because
they did not "alter the statutory sentencing range set by Congress
for the crime").9 Shea disagrees with those cases. By his logic,
Johnson established that vague laws that fix the permissible range
of sentences a judge can impose (by establishing a new mandatory
minimum or maximum sentence) violate the Due Process Clause; the
8 See London, 937 F.3d at 507 (holding that voiding the pre-
Booker residual clause would require a new rule because the
Guidelines "did not statutorily increase the risk [the defendant]
faced at sentencing" because "the statutory minimum and maximum
sentence he faced remained the same"); United States v. Pullen,
913 F.3d 1270, 1281–82 (10th Cir. 2019) ("[C]entral to why the
question remains open is that Johnson involved a federal statute,
while the Guidelines, even in their mandatory form, were agency-
created rules formed by the U.S. Sentencing Commission to
supplement existing, congressionally-enacted statutory maximum and
minimum sentencing ranges."); Russo, 902 F.3d at 883 (same because
neither Johnson nor Beckles "addressed possible distinctions
between a provision that establishes a statutory penalty and a
mandatory guideline provision that affects sentences within a
statutory range, subject to authorized departures").
9 By the way, as we explained in Moore, that the Eleventh
Circuit decided the merits differently in Griffin does not "mean
that a contrary conclusion would be a new rule of constitutional
law." 871 F.3d at 81; see Wright, 505 U.S. at 304 (O'Connor, J.
concurring) (explaining that because "the standard for determining
when a case establishes a new rule is 'objective,'" "the mere
existence of conflicting authority does not necessarily mean a
rule is new") (citing Stringer, 503 U.S. at 237).
- 22 -
vague § 4B1.2(a)(2) residual clause required the judge to sentence
Shea to 262–327 months in prison (a sentence far greater than the
statutory minimum); and therefore, his sentence violated the rule
announced in Johnson.
As we previewed earlier, we side with Shea. "[B]ased on
an objective reading of the relevant cases," Stringer, 503 U.S. at
237, the government's proffered distinctions between the ACCA and
the mandatory Guidelines do "not change the force with which
[Johnson's] underlying principle applies" when, as in most cases,
the defendant was ineligible for a departure from the Guideline
range. Wright, 505 U.S. at 304 (O'Connor, J., concurring).
(i) Statutes vs. Rules
To start with, given Supreme Court precedent, no
reasonable jurist could think the rule in Johnson applies only to
statutes. It is crystal clear that the same two-pronged vagueness
test that governed Johnson applies with equal force to regulations
that have the force of law. See FCC v. Fox Television Stations,
Inc., 567 U.S. 239, 253 (2012) ("A conviction or punishment fails
to comply with due process if the statute or regulation under which
it is obtained 'fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforcement.'"
(quoting United States v. Williams, 553 U.S. 285, 304 (2008))
(emphasis added)); accord Beckles, 137 S. Ct. at 894–95 (citing
- 23 -
Fox, 567 U.S. at 253, and framing the void-for-vagueness "question
[as] whether a law" — not just a statute — "regulating private
conduct by fixing permissible sentences provides notice and avoids
arbitrary enforcement by clearly specifying the range of penalties
available"). And as the Supreme Court held before Booker, the
mandatory Guidelines were "the equivalent of legislative rules
adopted by federal agencies." Stinson v. United States, 508 U.S.
36, 45 (1993). "Because they [were] binding on judges," the Court
had "consistently held that the Guidelines ha[d] the force and
effect of laws." Booker, 543 U.S. at 234. So "the fact that
[they] were promulgated by the Sentencing Commission, rather than
Congress, lacks constitutional significance." Id. at 237; see
also United States v. R.L.C., 503 U.S. 291, 297 (1992) (stating
that "the answer to any suggestion that the statutory character of
a specific penalty provision gives it primacy over administrative
sentencing guidelines is that the mandate to apply the Guidelines
is itself statutory," as we're about to explain).
(ii) Fixing Sentences
In addition, unlike the advisory version, the mandatory
Guidelines "did 'fix the permissible range of sentences'" a judge
could impose on certain defendants. Beckles, 137 S. Ct. at 903
n.4 (Sotomayor, J., concurring); accord Booker, 543 U.S. at 243
(rejecting notion that "the Guidelines as currently written could
be read as merely advisory provisions that recommended, rather
- 24 -
than required, the selection of particular sentences"). In fact,
they did so by statute. As the Court explained in Booker, the
Sentencing Reform Act ("SRA") required the judge to "'impose a
sentence of the kind, and within the range' established by the
Guidelines" in all but "specific, limited cases" in which the SRA
allowed a departure. Id. at 234 (quoting 18 U.S.C. § 3553(b)).
Therefore, at least in the ordinary case (where no departure was
available), the Court held that the Guidelines — not the
defendant's statute of conviction — set the relevant "maximum"
sentence. Id. at 234. For that reason, the Supreme Court held
that Guideline enhancements routinely violated the rule in
Apprendi v. New Jersey — that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt," 530 U.S. 466, 490 (2000),
because (at least in most cases) they raised the "legally
permissible" range of sentences based on facts found by the judge,
rather than a jury. Booker, 543 U.S. at 230–35; see also id. at
238 ("The Government correctly notes that in Apprendi we referred
to 'any fact that increases the penalty for a crime beyond the
prescribed statutory maximum' . . . [but the] principle[ ] [is]
unquestionably applicable to the Guidelines.").
That the Guidelines allowed departures in "specific,
limited cases" did not change the fact that in all others, they
- 25 -
worked no differently than a statute setting a sentencing range.
Id. at 234. As the Court explained:
The Guidelines permit[ted] departures from
the prescribed sentencing range in cases in
which the judge "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." 18 U.S.C. § 3553(b)(1) (2000
ed., Supp. IV). At first glance, one might
believe that the ability of a district judge
to depart from the Guidelines means that she
is bound only by the statutory maximum. Were
this the case, there would be
no Apprendi problem. Importantly, however,
departures [were] not available in every case,
and in fact [were] unavailable in most. In
most cases, as a matter of law, the Commission
will have adequately taken all relevant
factors into account, and no departure will be
legally permissible. In those instances, the
judge [was] bound to impose a sentence within
the Guidelines range.
Id. (emphasis added). "Booker's case illustrat[ed] the mandatory
nature of the Guidelines," the Court added: as "a run-of-the-mill
drug case, [it did] not present any factors that were inadequately
considered by the Commission. The sentencing judge would therefore
have been reversed had he [departed and] not imposed a sentence
within the . . . Guidelines range." Id. at 235. In other words,
for most defendants — those who were not eligible for a departure
— the mandatory Guidelines "fix[ed] the permissible range of
sentences" the judge could impose. Beckles, 137 S. Ct. at 892.
No, Booker did not apply the void-for-vagueness doctrine
- 26 -
or use the word "fix." Rather, it construed "the Sixth Amendment
right of criminal defendants to be tried by a jury and to have
every element of an offense proved by the Government beyond a
reasonable doubt." Pepper v. United States, 562 U.S. 476, 489
(2011) (citing Booker, 543 U.S. at 243–44); see Alleyne v. United
States, 570 U.S. 99, 111 (2013) (explaining that "'facts that
increase the prescribed range of penalties to which a criminal
defendant is exposed' are elements" of a "'separate legal offense'"
that must be charged in the indictment and found by the jury
(quoting Apprendi, 530 U.S. at 483 n.10, 490)). In Beckles,
however, the Court drew from the Booker line of cases to
distinguish laws that "fix" sentences (which are subject to
vagueness challenges) from laws that "merely guide" judicial
discretion (which are not). Beckles, 137 S. Ct. at 892. Indeed,
the Court indicated that it pulled the term "fixed" from Alleyne,
which "describe[d] the legally prescribed range of available
sentences as the penalty fixed to a crime." Beckles, 137 S. Ct.
at 892.
In Alleyne, the Court made clear that under the Sixth
Amendment analysis that doomed the mandatory Guidelines, a fact
that raises either (maximum or minimum) end of the "the legally
prescribed range of sentences to which a criminal defendant is
exposed" necessarily changes "the penalty affixed to the
[defendant's] crime." 570 U.S. at 112 (emphasis added) (reasoning
- 27 -
that "the legally prescribed range is the penalty affixed to the
crime"); see also United States v. Haymond, 139 S. Ct. 2369, 2378
(2019) (plurality opinion) ("[B]y definition, a range of
punishments includes not only a maximum but a minimum," meaning
that "[b]oth the 'floor' and 'ceiling' of a sentencing range
'define the legally prescribed penalty.'" (quoting Alleyne, 570
U.S. at 112)). That's because historically, the law defined a
"'crime' as consisting of every fact which 'is in law essential to
the punishment sought to be inflicted,' or the whole of the wrong
'to which the law affixes punishment.'" Alleyne, 570 U.S. at 109
(quoting 1 J. Bishop, Criminal Procedure 50 (2d ed. 1872)). So
when a fact bumps up "the legally prescribed punishment" (meaning
it "affixes" a new penalty to the defendant's conduct) it
necessarily "constitutes an element of a separate, aggravated
offense that must be found by the jury." Id. at 114–15; see also
id. at 112 ("It is impossible to dissociate the floor of a
sentencing range from the penalty affixed to the crime."). In
contrast, a judge may decide facts that merely "guide judicial
discretion in selecting a punishment 'within limits fixed by law.'"
Id. at 113 n.2 (quoting Williams v. New York, 337 U.S. 241, 246
(1949)). Viewed through Alleyne's lens, then, the mandatory
Guidelines violated the Sixth Amendment (at least when no departure
was available) because they changed the range of penalties
"affixed" to the defendant's conduct, even if some other statute
- 28 -
listed a higher so-called "maximum" sentence for the crime of
conviction. If they had "merely guide[d]" judicial discretion,
instead of "fixing" its limits, Beckles, 137 S. Ct. at 892, they
would not have broken the Apprendi rule, as Booker held they did.
See Alleyne, 570 U.S. at 116–17; accord Booker, 543 U.S. at 234.
In our view, therefore, the precedent leaves no room for
debate: when the pre-Booker Guidelines "bound [the judge] to
impose a sentence within" a prescribed range, Booker, 543 U.S. at
234–35, as they ordinarily did, they necessarily "fixed the
permissible range of sentences" (s)he could impose, Beckles, 137
S. Ct. at 892, whether they "fixed" a higher maximum or minimum
sentence. See Davis, 139 S. Ct. at 2336 (striking down
§ 924(c)(3)(B), which enhanced the mandatory minimum — but not
always the maximum — sentence required for certain defendants who
used or carried a firearm in a "crime of violence" based on a
similar residual clause as unconstitutionally vague).
It's easy to see why vague laws that "fix" sentences for
Apprendi/Alleyne purposes violate the Due Process Clause. The
Apprendi rule applied in Booker serves two main functions. First,
fair notice: requiring the indictment to allege "every fact which
is legally essential to the punishment to be inflicted . . .
enable[s] [the defendant] to determine the species of offence with
which he [is] charged in order that he may prepare his defence
accordingly" and have "no doubt as to the judgment which should be
- 29 -
given, if the defendant be convicted." Alleyne, 570 U.S. at 111
(quotations omitted); see also id. at 113–14 ("Defining facts that
increase a mandatory statutory minimum to be part of the
substantive offense enables the defendant to predict the legally
applicable penalty from the face of the indictment"). But an
indictment can't provide the notice the Constitution requires if
the crime it charges is itself "so vague the defendant [can't]
tell what he's alleged to have done and what sort of witnesses he
might need to rebut that charge." Sessions v. Dimaya, 138 S. Ct.
1204, 1227 (2018) (Gorsuch, J. concurring) (observing that the
Sixth Amendment fair trial rights, like other constitutional
protections, "presuppose and depend on the existence of reasonably
clear laws"). The Apprendi rule also guards against "the threat
of 'judicial despotism' that could arise from 'arbitrary
punishments upon arbitrary convictions,'" by requiring the jury to
find each fact "the law makes essential to his punishment."
Booker, 543 U.S. at 232, 238 (first quoting The Federalist No. 83,
at 499 (A. Hamilton) (C. Rossiter ed., 1961), then quoting Blakely
v. Washington, 542 U.S. 296, 301 (2004)). But if jurors can't
tell what "facts" are "essential," and the judge can't educate
them (without making up the law arbitrarily), then the jury can't
do its job. We could hardly expect twelve people to "confirm"
"the truth of [an] accusation," id. at 239 (emphasis omitted)
- 30 -
(quoting Apprendi, 530 U.S. at 477), that even the judge can't
decipher.
Without a doubt, then, when no departure applied, the
vague residual clause that Shea claims raised his sentencing range
(which told us an offense was a "crime of violence" if it posed a
"'serious potential risk of physical injury to another'" in the
abstract "ordinary case" of the crime, Frates, 896 F.3d at 95–96,
99 (emphases added) (quoting U.S.S.G. § 4B1.2(a)(2))) triggered
the "twin concerns underlying vagueness doctrine — providing
notice and preventing arbitrary enforcement." Beckles, 137 S. Ct.
at 894. To see why, consider the reasons Beckles gave for why the
advisory Guidelines didn't "implicate" those interests. First,
[a]s to notice, even perfectly clear
[advisory] Guidelines could not provide notice
to a person who seeks to regulate his conduct
so as to avoid particular penalties within the
statutory range. That is because even if a
person behaves so as to avoid an enhanced
sentence under the career-offender guideline,
the sentencing court retains discretion to
impose the enhanced sentence. . . . "[T]he due
process concerns that . . . require notice in
a world of mandatory Guidelines no longer"
apply . . . . All of the notice required is
provided by the applicable statutory range,
which establishes the permissible bounds of
the court's sentencing discretion.
Id. (citations omitted). As to the second "twin concern," a law
"invites arbitrary enforcement" if it "'leaves judges and jurors
free to decide, without any legally fixed standards, what is
prohibited and what is not in each particular case' . . . or
- 31 -
permits them to prescribe the sentences or sentencing range
available." Beckles, 137 S. Ct. at 894–95 (first quoting Giaccio
v. Pennsylvania, 382 U.S. 399, 402–03 (1966), then citing Alleyne,
570 U.S. at 111-14). Since the advisory Guidelines did not "fix
the permissible range of [the] petitioner's sentence," "the
District Court did not 'enforce' the [advisory] career-offender
Guideline against" Beckles: it just "relied on [the Guideline]
for advice in exercising its discretion to choose a sentence within
th[e] statutory limits." Id. at 895.
In contrast, the pre-Booker Guidelines themselves
routinely "establishe[d] the permissible bounds of the court's
sentencing discretion." Id. at 894. When the Career Offender
Guideline shot up the maximum permissible sentence (because there
was no ground for an upward departure from the base guideline
range), the judge could not have imposed the same range of
penalties as without the enhancement.10 See Booker, 543 U.S. at
236–37. Even when it only "[e]levat[ed] the low-end of [the]
sentencing range" (as Shea claims it at least did in his case
because there were no grounds for a downward departure), the
guideline increased "the defendant's 'expected punishment . . .
10
Here, for instance, giving Shea the same sentence without
the Career Offender enhancement would have required a steep 165-
month upward departure (the difference between the high-end of
Shea's Guidelines range without the Career Offender enhancement
and his actual sentence) if the enhancement hadn't applied.
- 32 -
as a result of the narrowed range[.]'" Alleyne, 570 U.S. at 113
(quoting Apprendi, 530 U.S. at 522 (Thomas, J., concurring)). So
clearer standards would have warned a defendant (with
constitutionally adequate certainty) "how to regulate his conduct
so as to avoid" an enhanced mandatory range of punishments. See
id. at 112–13 (explaining that laws defining the minimum and
maximum sentences permissible historically "allowed those who
violated the law to know, ex ante, the contours of the penalty
that the legislature affixed to the crime" and "comport[ed] with
the obvious truth that the floor of a mandatory range is as
relevant to wrongdoers as the ceiling").11
That's not all. Even if the mandatory Career Offender
Guideline somehow avoided "[t]he due process concerns that . . .
11 Although the government does not argue this point, we
realize that as a practical matter, someone mulling committing a
crime (viewing things "ex ante," as the Romans would say) might
not know (or be realistically able to predict) whether he'd qualify
for a departure if he followed through with the deed. Some grounds
for departure — like the defendant's "substantial assistance" to
the government, or extraordinary post-offense rehabilitation —
depended on post-offense conduct. See Pepper, 562 U.S. at 503
n.16; United States v. Craven, 239 F.3d 91, 99 (1st Cir. 2001)
("It is only the occasional instance, where time and circumstances
permit and the accused takes full advantage of both, that will
produce rehabilitation so dramatic as to" warrant a downward
departure (quoting United States v. Sklar, 920 F.2d 107, 115-16
(1st Cir. 1990)).); U.S.S.G. § 5K1.1. But as the Seventh Circuit
recognized, statutory minima have similar escape hatches. See 18
U.S.C. § 3553(e), (f). Yet no one suggests these limited safety
valves unlocked by post-offense efforts insulate statutes fixing
mandatory minima, like the provisions struck in Johnson and Davis,
from vagueness challenges. See Cross, 892 F.3d at 306 (concluding
- 33 -
require notice in a world of mandatory Guidelines" — the vague
residual clause unquestionably "permits [judges] to prescribe the
sentences or sentencing range available" "without any legally
fixed standards." Beckles, 137 S. Ct. at 894–95. When the clause
applied and no downward departure was available, "the prosecution
[was] empowered, by invoking the [enhanced] mandatory minimum, to
require the judge to impose a higher penalty than he might wish."
Alleyne, 570 U.S. at 113 (quoting Apprendi, 530 U.S. at 522(Thomas, J. concurring)). In such cases, the judge had to
"enforce" the clause against the defendant. Beckles, 137 S. Ct.
at 894–95; see United States v. Piper, 35 F.3d 611, 620 (1st Cir.
1994) ("The career offender regime, as crafted by Congress and the
Sentencing Commission, is harsh, but the courts are obliged to
enforce it according to its tenor. The district court did so
here."). Yet the language gave judges no clear standards for
deciding when the law bound them to enhance the permissible range
that those safety valves demonstrate that "some play in the joints
is not enough to change the character of either statutory
sentencing limitations or the pre-Booker guidelines from mandatory
to advisory"). If the Career Offender residual clause were clear
enough to signal when it would apply, prospective defendants could
still behave so as to avoid conduct that would trigger its enhanced
minimum and necessitate post-offense efforts (if available at all)
to escape it. And in any event, by the time of sentencing — when
a given defendant could ascertain that he did not qualify for a
departure — the guideline undeniably fixed the sentences the judge
could impose and invited arbitrary enforcement, to say nothing of
the potential impediments the vague residual clause imposed on a
defendant's ability to argue the enhancement did not apply.
- 34 -
— leaving that to "guesswork" and "invit[ing] arbitrary
enforcement." Johnson, 576 U.S. at 597–602.
As such, the mandatory Guidelines' residual clause
implicated both concerns driving the vagueness doctrine. Just as
it did in Johnson, "[i]nvoking so shapeless a provision to condemn
someone to prison" for almost 21 to 27 years "does not comport
with the Constitution's guarantee of due process." Id. at 602.
(iii) Departures
In its last effort to dodge the Johnson train, the
government suggests that the fact that judges could depart in some
cases gives grist for a reasonable claim that the mandatory
Guidelines did not "fix" sentences like the ACCA did Johnson's.
But the government does not argue (and it is unlikely, on this
record, that it could) that Shea's case is one of those "specific,
limited" cases in which the Guidelines permitted a departure.
Booker, 543 U.S. at 234. Remember: under the SRA, departures
were "unavailable" to most defendants. Booker, 543 U.S. at 232–
35; see also Moore, 871 F.3d at 83 (noting that
"[d]epartures . . . were limited in scope, and sentencing courts
had little leeway in employing them," and citing six cases in which
we held departures unauthorized); United States v. Pereira, 272
F.3d 76, 80 (1st Cir. 2001) ("[E]xisting caselaw define[d] the
parameters for departure, outside of which a court [could ]not go
without assuming the risk of acting beyond permissible limits.");
- 35 -
Reid, 252 F. Supp. 3d at 67 & n.2 (describing the mandatory
Guidelines as a "rigidly imposed . . . straitjacket" under which
we "stringently policed any sentences below the applicable
Guideline range" and "district judges were compelled to impose
harshly inflated prison terms on thousands of defendants"). So in
cases where it applied, the mandatory residual clause almost always
exposed the defendant to a higher maximum or minimum sentence —
and most often to both, thereby raising "the penalty affixed to
the crime," Alleyne, 570 U.S. at 112, and triggering the dual
concerns animating the vagueness doctrine.
Shea asserts that his case was a typical one — that the
Career Offender Guideline (rather than the force clause or an
exercise of departure discretion) enhanced his sentence as "no
downward departures were available" here. Specifically (he
claims), the vague residual clause "fixed his minimum sentence at
262 months, thereby meaningfully altering his sentencing range.
Thus, [his] sentencing judge could not have imposed between zero
and 262 months of incarceration, even though the statute permitted
such a sentence."12 The record appears to support that claim.
12These quotes from Shea's reply memo clarify the position
Shea took in his opening brief, which argued that under Johnson,
"a provision that defines a crime or fixes a sentence by
application of double indeterminacy [i.e., uncertainty about the
"ordinary case" of the crime and the "potential risk" it posed] is
unconstitutionally vague." Appellant's Br. at 13; see also id. at
8 (arguing that "the [mandatory] guideline residual clause and the
- 36 -
After a full presentence investigation, Shea's probation officer
wrote that she knew of "no factors, mitigating or aggravating,
which would justify a departure from the guideline range." And as
far as we can tell, no one else has ever identified any ground on
which the judge could have departed. On this record, then, the
habeas court could plausibly agree with Shea and conclude (as the
Supreme Court did in Booker, and as we did in several pre-Booker
cases) that the Guideline foreclosed a departure and fixed the
range of sentences the judge could have imposed. See Booker, 543
ACCA residual clause . . . are textually the same and operate in
the same way" because "they fix a sentence by application of double
indeterminacy") (emphases added). He argued that this rule
"applie[d] to the mandatory career offender guideline residual
clause." Id. at 20. But he did not address the exceptional cases
in which the Guidelines were not (strictly speaking) "mandatory"
because the defendant was eligible for a departure from the
guideline range. The government's response raised the departure
issue first — in its (one-liner) responsive argument that courts'
"ability to depart" in some cases distinguished the pre-Booker
guideline regime from the ACCA. In reply Shea explained (as we
quote above) that the departure point was neither here nor there
because, as in Booker (and as the PSR suggested), none was
available to him — so his opening arguments about how the
guidelines were "mandatory" and "fixed" sentences still applied
with full force. "While a reply brief is not the proper place to
raise new arguments, it is proper for a court to look there
for clarification," United States v. Bradstreet, 207 F.3d 76, 80
n.1 (1st Cir. 2000) (citation omitted), especially when (as here)
that clarification responds to an argument raised for the first
time in the appellee's brief, see Sparkle Hill, Inc. v. Interstate
Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("Often, counterpoints
and rebuttal rejoinders arise or fit most naturally as a reply to
an opposition argument that could not have reasonably been
anticipated. Neither our rules nor fairness require a robust
application of waiver in such circumstances."); Holmes v. Spencer,
685 F.3d 51, 66 (1st Cir. 2012) (considering arguments raised for
first time in reply to new argument advanced in appellee's brief).
- 37 -
U.S. at 235; United States v. Gendraw, 337 F.3d 70, 72–73 (1st
Cir. 2003) (determining on appeal that the record "provide[d] no
basis for departure on any ground" from the career-offender
guideline range, such that "any decision by the district court
granting a downward departure would have to be reversed"); United
States v. Rushby, 936 F.2d 41, 43 (1st Cir. 1991) (concluding that
if "the district court [had] departed on the basis of these facts
[to which the appellant pointed], its decision could not have
withstood legal challenge"). All of this bolsters Shea's
contention that his petition invokes a rule Johnson dictates —
because if no departure was available, then his sentence was
"fixed" by the mandatory Career Offender Guideline, rather than
the ranges described in his statutes of conviction.
As we've already explained, the possibility of
departures in other, exceptional cases did not make the pre-Booker
Guidelines any less mandatory in cases where no departure was
available — cases like Freddie Booker's, Booker, 543 U.S. at 234,
256-57, and this one, as Shea describes it. So even if jurists
might reasonably debate whether the rule announced in Johnson would
apply to a defendant who, in addition to receiving a Career
Offender designation under the Guidelines, was eligible for a
departure, they could not reasonably disagree that Johnson applies
when the Career Offender Guideline's residual clause fixed the
permissible sentences, as Shea reasonably claims it did here. See
- 38 -
id. at 233-34 (expressly holding that at least in no-departure
cases the Guidelines "have the force and effect of laws" and
"require[] the selection of particular sentences").
As a result, we conclude that in a case where no
departure was available, the residual clause in the mandatory
Career Offender Guideline was, beyond reasonable debate, "a law
regulating private conduct by fixing permissible sentences" that
did not "provide notice[ ] and avoid[ ] arbitrary enforcement by
clearly specifying the range of penalties available." Beckles,
137 U.S. at 895. As such, the rule recognized in Johnson dictates
that in such cases, that residual clause violated due process. By
asserting that the judge relied on that clause to enhance his
mandatory sentence, Shea therefore "asserts" the
"right . . . newly recognized" in Johnson. 28 U.S.C. §
2553(f)(3); see Chambers, 763 F. App'x at 524–27 (Moore, J.,
concurring); Brown, 868 F.3d at 309–10 (Gregory, C.J.,
dissenting); Carter, 422 F. Supp. 3d at 314–17; Hammond, 354 F.
Supp. 3d 44–49; see also supra n.3 (citing cases that reached a
similar conclusion).
Wrap Up
The upshot is that both of Shea's claims are timely.
The government does not (in this appeal) raise any other threshold
bar to granting Shea relief. Rather, it advises that "[i]f this
Court concludes that the defendant's § 2255 challenge to his career
- 39 -
offender designation is timely, the matter should be remanded to
the district court to consider the merits."
We agree with the government. We ordinarily do not
"consider the merits of an issue advanced by a habeas petitioner
unless a COA first has been obtained with respect to that issue."
Butterworth, 775 F.3d at 469 (quoting Peralta v. United States,
597 F.3d 74, 83 (1st Cir. 2010)). And in any event, "[w]e generally
do not rule on questions — whether of fact or of law — until a
district court has done so, a practice that enhances the quality
of our decisions both by allowing us to consider the district
court's analysis and by allowing the parties to hone their
arguments before presenting them to us." Moore, 871 F.3d at 79
(quoting Evans-García v. United States, 744 F.3d 235, 237–38 (1st
Cir. 2014)). In this case, the COA only teed up the timeliness
issue, and the district court did not broach the merits.
What's more, to win on the merits of his Johnson-based
challenge to his sentence, Shea will need to prove "by a
preponderance of the evidence" that his "sentence rested on the
residual clause" of the Career Offender Guideline. Dimott v.
United States, 881 F.3d 232, 240–43 (1st Cir. 2018) (holding that
"[t]o prove a Johnson [ ] claim, the movant must show that — more
likely than not — it was the use of the residual clause that led
to the sentencing court's enhancement of his sentence") (quoting
Beeman v. United States, 871 F.3d 1215, 1221–22 (11th Cir. 2017))).
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Shea argues that it must have. He now concedes that his prior
armed robbery would still have qualified as a crime of violence,
but he argues that the only other two candidates — Massachusetts
A&B and ABPO — did not satisfy the surviving clauses of
§ 4B1.2(a)(2), at least under current precedent. Appellant's Br.
at 21–23 (citing Rose, 896 F.3d at 109–10, and Faust, 853 F.3d at
50–51, 60, among other cases). In his papers below, he also cited
cases suggesting that those crimes qualified as predicates only
under the residual clause when he was sentenced. See Fernandez,
121 F.3d at 778–80 (explaining that Massachusetts ABPO qualified
as a predicate under the residual clause at the time of Shea's
sentencing); see also Dimott, 881 F.3d at 242 (noting that a
petitioner may rely on precedent existing at the time of
sentencing, among other things, to make the required showing). To
rule for Shea on the merits, the district court will need to
resolve this issue of fact (to the extent that it's disputed) on
remand. See Pullman-Standard v. Swint, 456 U.S. 273, 291–92 (1982)
(explaining that "[f]actfinding is the basic responsibility of
district courts, rather than appellate courts, and . . . the Court
of Appeals should not . . . resolve[ ] in the first instance [a]
factual dispute which ha[s] not been considered by the District
Court" (quoting DeMarco v. United States, 415 U.S. 449, 450, n.*
(1974)). Moreover, because the rule Johnson recognized applies
only when the residual clause fixed a higher maximum or minimum
- 41 -
sentence (as was the case when the judge could not have departed),
Shea will have to show that it more-likely-than-not did so in his
case.13
Enough said then. We vacate the judgment and remand for
further proceedings consistent with this opinion.
-Dissenting Opinion Follows-
13 We do not intend to foreclose the district court from
considering any other bar to relief that the government has not
forfeited. See, e.g., Bartolomeo v. United States, 960 F.3d 34,
48 (1st Cir. 2020) (holding that the district court did not clearly
err in finding that any error in applying the mandatory residual
clause did not prejudice the petitioner because the parties had
agreed at sentencing to a 35-year above-guideline sentence).
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SELYA, Circuit Judge (dissenting). Time-and-number
limitations, generally applicable to certain collateral review
proceedings, may sometimes be relaxed when a petitioner seeks to
avail himself of a new rule of constitutional law announced by the
Supreme Court and expressly made retroactive to cases previously
decided. See Teague v. Lane, 489 U.S. 288, 310 (1989) ("[N]ew
constitutional rules of criminal procedure will not be applicable
to those cases which have become final before the new rules are
announced . . . [u]nless they fall within an exception to the
general rule."); see also Welch v. United States, 136 S. Ct. 1257,
1264 (2016) (discussing exceptions to general bar on
retroactivity). But this principle does not provide free rein to
the lower federal courts — the courts of appeals and the district
courts — either to extend a rule into uncharted waters or to
speculate about where a Supreme Court decision might eventually
lead. My colleagues' decision crosses this line, staking out a
position that the Court has yet to articulate. Because I cannot
join this excursion into forbidden terrain, I write separately.
Let me set the stage. Here, Shea aspires to file his
habeas petition out of time, and the applicable statute requires
that the right he asserts must previously have been recognized by
the Supreme Court. See 28 U.S.C. § 2255(f)(3). This right, he
says, entails the invalidation of the residual clause of the
pre-Booker career offender provision of the sentencing guidelines.
- 43 -
See United States v. Booker, 543 U.S. 220 (2005). Viewed in
context, this proposition depends on the accuracy of Shea's
assertion that this "new right" was previously recognized by the
Supreme Court. Teague, 489 U.S. at 301 ("[A] case announces a new
rule if the result was not dictated by precedent existing at the
time the defendant's conviction became final."). To establish
this necessary element of his case, Shea relies on the Supreme
Court's decision in Johnson v. United States, 576 U.S. 591 (2015).
Shea's reliance is mislaid: despite my colleagues'
heroic efforts in his behalf, such a link cannot be forged. To
establish the requisite recognition, the Supreme Court would have
had to either formally acknowledge or treat as valid the right
asserted by Shea. United States v. Green, 898 F.3d 315, 318 (3rd
Cir. 2018). It has done neither.
Johnson is surely a new right recognized by the Supreme
Court because it required overruling several prior Supreme Court
decisions upholding and applying the residual clause of the Armed
Career Criminal Act (ACCA). See Welch, 136 S. Ct. at 1264 ("It is
undisputed that Johnson announced a new rule."). This is only
half of the battle, and the remaining question is whether the due
process principles enunciated in Johnson perforce invalidate the
residual clause of the career offender provision of the pre-Booker
sentencing guidelines. If reasonable jurists can disagree about
whether the rule stated in Johnson demands a finding that the
- 44 -
pre-Booker residual clause of the career offender guideline is
unconstitutional, it necessarily follows that the new right upon
which Shea relies was not announced in Johnson and has not yet
been recognized by the Supreme Court. See Chaidez v. United
States, 568 U.S. 342, 347 (2013) ("'[A] case announces a new rule
if the result was not dictated by precedent' . . . [a]nd a holding
is not so dictated . . . unless it would have been 'apparent to
all reasonable jurists.'" (quoting Lambrix v. Singletary, 520 U.S.
518, 527–28 (1997))).
In my view, neither Johnson nor its progeny
unequivocally answer this question. The Johnson Court overruled
earlier decisions and held that the ACCA's residual clause was
unconstitutional under due process principles. Johnson, 576 U.S.
at 596-98. Later on, the Court determined that Johnson applied
retroactively to cases on collateral review. See Welch, 136 S. Ct.
at 1257. Even so, the Court subsequently upheld — as against a
Johnson-inspired attack — a due process challenge to the residual
clause of the career offender provision of the post-Booker
sentencing guidelines. See Beckles v. United States, 137 S. Ct.
886 (2017). In reaching this result, the Court distinguished
Johnson on the ground that the sentencing guidelines, made advisory
by the Booker decision, did not "fix the permissible sentences for
criminal offenses" because those guidelines merely informed the
district court's exercise of sentencing discretion. Id. at 892
- 45 -
(emphasis omitted). As the Fifth Circuit aptly noted, "the Court's
decisions up until this point evince a distinction between statutes
that fix sentences and Guidelines that attempt to constrain the
discretion of sentencing judges." United States v. London, 937
F.3d 502, 507 (5th Cir. 2019).
To be sure, the pre-Booker guidelines were thought to be
mandatory, not advisory. See Booker, 543 U.S. at 234. Those
guidelines cabined the range, within the statutory sentencing
framework, in which the district court had to sentence the
defendant; subject, however, to a modicum of flexibility based on
the sentencing court's authority to depart. See id.
The short of it is that Johnson established a rule that
due process principles apply to laws that fix sentences — a rule
that the Supreme Court later made retroactive. For present
purposes, though, a chasmal gap exists: there is no subsequent
decision of the Court answering the question of whether the rule
in Johnson extends to a guideline provision that does not have the
effect of fixing a sentence by altering the statutory penalties.
My colleagues do not succeed in bridging this gap, and I conclude
that unless and until the Supreme Court answers the dispositive
question favorably to him, Shea does not have a new right
recognized by the Supreme Court sufficient to bear the weight of
his petition.
- 46 -
This conclusion is hardly original, and I see no need to
repastinate soil already well-plowed. All but one of the courts
of appeals to have addressed this question have determined that
Johnson does not constitute the newly recognized right that Shea
needs to show. Nunez v. United States, 954 F.3d 465, 469 (2d Cir.
2020); London, 937 F.3d at 508; United States v. Blackstone, 903
F.3d 1020, 1028 (9th Cir. 2018); Russo v. United States, 902 F.3d
880, 883 (8th Cir. 2018); Green, 898 F.3d at 321; United States v.
Greer, 881 F.3d 1241, 1248-49 (10th Cir. 2018); United States v.
Brown, 868 F.3d 297, 304 (4th Cir. 2017); Raybon v. United States,
867 F.3d 625, 630-31 (6th Cir. 2017). But see Cross v. United
States, 892 F.3d 288, 307 (7th Cir. 2018). These decisions
thoughtfully address my colleagues' contentions both that the
right recognized in Johnson extends beyond the ACCA and that the
pre-Booker guidelines "fixed" sentences in violation of Johnson.
See, e.g., London, 937 F.3d at 507 ("The pre-Booker Guidelines
. . . only directed the discretion of the district judge within
the statutory range . . . ."); Russo, 902 F.3d at 883 ("It is
reasonably debatable whether Johnson's holding regarding the ACCA
extends to the former mandatory guidelines."). I am of the opinion
that, although the Court may in the future find the pre-Booker
residual clause of the career offender guideline
unconstitutionally vague, Johnson does not dictate such a result.
Nunez, 954 F.3d at 470 (concluding that challenges to identical
- 47 -
residual clauses in other contexts were not "necessarily
straightforward" and "further undermine [the] contention that
Johnson in and of itself dictates the result of a vagueness
challenge to the residual clause in the pre-Booker" guidelines);
Blackstone, 903 F.3d at 1026 ("[Beckles] may permit an inference
that the Court might reach a different result regarding a sentence
imposed while the Guidelines were mandatory, . . . but that
inference has not been recognized by the Court.")
To my mind, the proof of the pudding is in the case law.
While precedents from other circuits are not binding upon us, the
reasoned decisions of a large number of our sister circuits are,
at the very least, entitled to respectful consideration. And
where, as here, those decisions constitute a wide majority, rest
on persuasive analysis, and tilt heavily in a uniformed direction,
it blinks reality to suggest that jurists of reason could not
decide the contested issue in that way.
I need go no further. The right that Shea is asserting
is not a right that flows automatically from Johnson. Indeed,
that right is not dictated by Johnson and has not yet been
explicitly recognized by the Supreme Court. That so many judges
have rejected Johnson's applicability to pre-Booker guidelines
sounds the death knell for Shea's appeal. See Russo, 902 F.3d at
883; Greer, 898 F.3d at 1245. Given the tenebrous state of the
law with respect to how (if at all) Johnson affects the career
- 48 -
offender provision of the pre-Booker sentencing guidelines, I
would hold that Shea has not cleared the high bar set by section
2255(f)(3). Consequently, I would affirm the district court's
dismissal of Shea's petition with respect to the guidelines issue.
I respectfully dissent as to that issue.14
14 Inasmuch as the parties are in agreement as to the disposition
of the unrelated issue involving 18 U.S.C. § 924(c), I need take
no position as to that issue.
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