De'Angelo Cross v. United States , 892 F.3d 288 ( 2018 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    Nos. 17-2282 & 17-2724
    DE’ANGELO A. CROSS,
    Petitioner-Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent-Appellee,
    and
    CARL LEO DAVIS,
    Petitioner-Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ____________________
    Appeals from the United States District Court for the
    Eastern District of Wisconsin.
    No. 15-C-1338 — J. P. Stadtmueller, Judge, and
    No. 16-C-747 — William C. Griesbach, Chief Judge.
    ____________________
    ARGUED JANUARY 10, 2018 — DECIDED JUNE 7, 2018
    ____________________
    2                                                 Nos. 17-2282 & 17-2724
    Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
    BUCKLO, District Judge. *
    WOOD, Chief Judge. When compliance with the U.S. Sen-
    tencing Guidelines was still understood to be mandatory, dis-
    trict courts were required to impose an extended term of in-
    carceration on so-called career criminals. This class of repeat
    felons was limited to those previously convicted twice for
    drug crimes or crimes of violence. The latter offenses included
    any felony “involv[ing] conduct that present[ed] a serious po-
    tential risk of physical injury to another.” U.S.S.G.
    § 4B1.2(a)(2) (1992); U.S.S.G. § 4B1.2(a)(2) (2000). We will call
    that definition of a crime of violence the “residual clause” in
    this opinion.
    The Supreme Court jettisoned the mandatory nature of the
    guidelines in 2005, in its decision in United States v. Booker,
    
    543 U.S. 220
    . The Booker decision did not, however, immedi-
    ately affect sentences imposed on defendants previously.
    Thus, De’Angelo Cross and Carl Davis continued to serve ob-
    ligatory sentences as career offenders as required by the man-
    datory guidelines. Both Cross and Davis qualified for that
    designation because of the residual clause. Their present ap-
    peal challenged the constitutionality of that clause.
    Two recent developments form the backdrop for our deci-
    sion: first, the Supreme Court’s holding in Johnson v. United
    States, 
    135 S. Ct. 2551
    (2015), that the identical language in the
    Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012), is un-
    constitutionally vague; and second, the Court’s ruling in Beck-
    les v. United States, 
    137 S. Ct. 886
    (2017), that Johnson does not
    extend to the post-Booker advisory guidelines, including the
    *   Of the Northern District of Illinois, sitting by designation.
    Nos. 17-2282 & 17-2724                                          3
    career-offender guideline. We conclude that Beckles applies
    only to advisory guidelines, not to mandatory sentencing
    rules. Under Johnson, the guidelines residual clause is uncon-
    stitutionally vague insofar as it determined mandatory sen-
    tencing ranges for pre-Booker defendants. Cross and Davis are
    both entitled to be resentenced.
    I
    Cross and Davis brought their cases to the district court
    through motions under 28 U.S.C. § 2255 for relief from their
    sentences. Each was unsuccessful before the district court and
    appealed to this court. In light of the substantial overlap in the
    issues presented, we consolidated their cases.
    When the district court sentenced Cross (2000) and Davis
    (1992), the then-mandatory sentencing guidelines prescribed
    an elevated sentence for those denominated career offenders.
    U.S.S.G. § 4B1.1. A defendant qualified as a career offender
    upon his third felony conviction for either a crime of violence
    or a drug offense. 
    Id. The guidelines
    defined the term “crime
    of violence” in three ways: an elements approach, U.S.S.G.
    § 4B1.2(a)(1); an enumerated offense approach, 
    id. § 4B1.2(a)(2),
    first part; and the residual clause, 
    id. § 4B1.2(a)(2),
    final clause. As we noted, the residual clause
    covered any offense that “involves conduct that presents a se-
    rious potential risk of physical injury to another.” 
    Id. Both Cross
    and Davis were sentenced as career offenders on the
    basis of the residual clause, and neither objected at trial. Davis
    did not file a direct appeal. Although Cross filed a notice of
    appeal (despite generally waiving his right to appeal or to file
    for collateral relief in his plea agreement), this court dismissed
    his case as frivolous after his attorney filed a no-merit brief to
    which Cross did not respond. United States v. Cross,
    4                                        Nos. 17-2282 & 17-2724
    24 F. App’x 576, 577 (7th Cir. 2001); see Anders v. California,
    
    386 U.S. 738
    , 744–45 (1967).
    Since Davis’s and Cross’s convictions, the Supreme Court
    has dramatically altered the federal sentencing landscape.
    First, Booker demoted the federal sentencing guidelines from
    mandatory to advisory. 
    543 U.S. 220
    . Then Johnson struck
    down the residual clause of the Armed Career Criminal Act
    (ACCA) as unconstitutionally vague, overruling contrary de-
    cisions in James v. United States, 
    550 U.S. 192
    (2007), and Sykes
    v. United States, 
    564 U.S. 1
    (2011), and upsetting a host of de-
    cisions from every court of appeals in the country. The resid-
    ual clause of the ACCA, which imposed increased minimum
    and maximum sentences, used identical language to that em-
    ployed in the guidelines. Compare 18 U.S.C. § 924(e)(2)(B)
    (2012) with U.S.S.G. § 4B1.2(a)(2) (1992 and 2000). The Court
    subsequently declared Johnson retroactive. Welch v. United
    States, 
    136 S. Ct. 1257
    (2016). Meanwhile, the Court applied
    the ex post facto clause to bar a retrospective increase in an ad-
    visory guidelines range. Peugh v. United States, 
    569 U.S. 530
    (2013). Yet contrary to this circuit’s expectations, see United
    States v. Hurlburt, 
    835 F.3d 715
    (7th Cir. 2016) (en banc) (declar-
    ing the residual clause in the advisory guidelines void for
    vagueness under Johnson), the Court held in Beckles that the
    void-for-vagueness doctrine has no role to play in the advisory
    guidelines and upheld the use of the residual clause in that
    context, 
    137 S. Ct. 886
    .
    In light of these developments and within one year of John-
    son, Cross and Davis each sought resentencing under
    28 U.S.C. § 2255. In Cross’s case, even though the judge ex-
    pressed considerable sympathy for Cross’s vagueness argu-
    Nos. 17-2282 & 17-2724                                         5
    ment, he thought himself bound by this court’s refusal to en-
    tertain vagueness challenges to the mandatory guidelines in
    United States v. Brierton, 
    165 F.3d 1133
    , 1139 (7th Cir. 1999),
    and advisory guidelines in United States v. Tichenor, 
    683 F.3d 358
    , 364–65 (7th Cir. 2012). Notwithstanding the fact that we
    had reversed course in Hurlburt, the judge “c[ould] not con-
    clude with certainty that Hurlburt’s abrogation of Tichenor
    [and Brierton] remain[ed effective] notwithstanding Beckles,”
    in which the Supreme Court abrogated the specific holding of
    Hurlburt. In the alternative, he held that the broad waiver of
    appellate rights in Cross’s plea agreement could not be over-
    come, even though the appeal waiver permitted motions
    “based on … the sentencing court’s reliance on any constitu-
    tionally impermissible factor.”
    A different district judge handled Davis’s motion, but he
    too concluded that relief was not in order. He found that Da-
    vis’s motion was barred by the one-year limitations period in
    28 U.S.C. § 2255(f). He acknowledged that section 2255(f)(3)
    reopens the limitations period for an additional year from
    “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.” 
    Id. § 2255(f)(3).
    He also recognized
    that Davis filed his petition within a year of Johnson’s issu-
    ance. Nonetheless, the judge believed that the Supreme
    Court’s invalidation of the residual clause in the ACCA did
    not carry over to the residual clause in the pre-Booker, manda-
    tory version of the career-criminal sentencing guideline. In
    the alternative, he held that Davis qualified as a career of-
    fender under the elements clause of the guidelines. See
    U.S.S.G. § 4B1.2(a)(1) (“crime of violence” also includes any
    felony that “has as an element the use, attempted use, or
    6                                       Nos. 17-2282 & 17-2724
    threatened use of physical force”). On that basis, he con-
    cluded that Davis was still a career offender notwithstanding
    Johnson.
    II
    Because Cross’s and Davis’s appeals present legal, rather
    than factual disputes, we consider the district courts’ conclu-
    sions de novo. Delatorre v. United States, 
    847 F.3d 837
    , 843
    (7th Cir. 2017). We begin by explaining why we reject the var-
    ious procedural hurdles that the government has raised as a
    bar to our reaching the merits of both these appeals.
    A
    Cross and Davis each filed his section 2255 motion within
    one year of the Supreme Court’s decision in Johnson. The gov-
    ernment nonetheless argues that their motions were un-
    timely. Federal prisoners “claiming the right to be released
    upon the ground that the sentence was imposed in violation
    of the Constitution or laws of the United States” may ask the
    sentencing court to “vacate, set aside or correct the sentence.”
    28 U.S.C. § 2255(a). They must, however, file their motion
    within a specified time. 
    Id. § 2255(f).
    The only limitation pe-
    riod potentially applicable to Cross’s and Davis’s cases runs
    for one year from “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 ret-
    roactively applicable to cases on collateral review.” 
    Id. § 2255(f)(3).
    Dodd v. United States clarifies that this limitation
    period begins when the Supreme Court declares a new right,
    not when courts first acknowledge that right to be retroactive.
    
    545 U.S. 353
    , 356–60 (2005). Thus, the timeliness of Cross’s and
    Nos. 17-2282 & 17-2724                                         7
    Davis’s motions hinges on whether the right they “assert[]
    was initially recognized by” Johnson. 28 U.S.C. § 2255(f)(3).
    The government argues that Johnson recognized the inva-
    lidity of the residual clause only vis-à-vis the ACCA. Cross
    and Davis, unlike Johnson, were sentenced under the residual
    clause of the guidelines. The government concludes, there-
    fore, that section 2255(f)(3) cannot help them, unless and until
    the Supreme Court explicitly extends the logic of Johnson to
    the pre-Booker mandatory guidelines. The Fourth and Sixth
    Circuits have both accepted this view. Raybon v. United States,
    
    867 F.3d 625
    , 629–31 (6th Cir. 2017); United States v. Brown, 
    868 F.3d 297
    , 301–04 (4th Cir. 2017). The First Circuit has rejected
    it. Moore v. United States, 
    871 F.3d 72
    , 80–84 (1st Cir. 2017).
    The government’s approach suffers from a fundamental
    flaw. It improperly reads a merits analysis into the limitations
    period. Section 2255(f)(3) runs from “the date on which the
    right asserted was initially recognized by the Supreme Court.”
    28 U.S.C. § 2255(f)(3) (emphasis added). It does not say that
    the movant must ultimately prove that the right applies to his
    situation; he need only claim the benefit of a right that the Su-
    preme Court has recently recognized. An alternative reading
    would require that we take the disfavored step of reading “as-
    serted” out of the statute. See Duncan v. Walker, 
    533 U.S. 167
    ,
    174 (2001) (“It is our duty ‘to give effect, if possible, to every
    clause and word of a statute.” (quoting United States v.
    Menasche, 
    348 U.S. 528
    , 538–39 (1955)).
    Here, Cross and Davis claim the right to be resentenced on
    the ground that the vague (yet mandatory) residual clause un-
    constitutionally fixed their terms of imprisonment. The right
    not to be sentenced under a rule of law using this vague lan-
    guage was recognized in 
    Johnson. 135 S. Ct. at 2556
    –57 (“The
    8                                       Nos. 17-2282 & 17-2724
    prohibition of vagueness in criminal statutes … appl[ies] not
    only to statutes defining elements of crimes, but also to stat-
    utes fixing sentences … . [T]he indeterminacy of the … resid-
    ual clause … denies due process of law.”); see also 
    Beckles, 137 S. Ct. at 892
    (“In Johnson, we applied the vagueness rule to
    a statute fixing permissible sentences. The ACCA’s residual
    clause … fixed—in an impermissibly vague way—a higher
    range of sentences for certain defendants.”).
    We are satisfied that the requirements of section 2255(f)(3)
    are met. Under Johnson, a person has a right not to have his
    sentence dictated by the unconstitutionally vague language of
    the mandatory residual clause. Davis and Cross assert pre-
    cisely that right. They complied with the limitations period of
    section 2255(f)(3) by filing their motions within one year of
    Johnson. See also Vitrano v. United States, 
    721 F.3d 802
    , 807–08
    (7th Cir. 2013) (holding that the Supreme Court recognized
    the general right not to be subject to an enhanced sentence
    based on an understanding of the term “violent felony” that
    conflicted with Begay v. United States, 
    553 U.S. 137
    , 148 (2008),
    and thus holding motion under section 2255 untimely when
    it was filed more than a year after Begay was decided).
    B
    The government next raised the ubiquitous specter of pro-
    cedural default. Because neither Cross nor Davis challenged
    the constitutionality of the residual clause at trial or on direct
    appeal, the government argues they are barred from doing so
    now.
    As an initial matter, forfeiture and waiver can stymie an
    appellee as well as an appellant. In Cross’s case, the govern-
    ment waived its procedural default argument vis-à-vis Cross
    Nos. 17-2282 & 17-2724                                              9
    by failing to assert it adequately in the district court. Attempt-
    ing to make the best of a bad showing, the government admits
    that it raised procedural default only “succinctly” in a foot-
    note. This is not enough, as we have held repeatedly. United
    States v. White, 
    879 F.2d 1509
    , 1513 (7th Cir. 1989); see also Har-
    mon v. Gordon, 
    712 F.3d 1044
    , 1053 (7th Cir. 2013).
    In general, habeas corpus petitioners may not raise any is-
    sue that they might have presented on direct appeal. McCoy
    v. United States, 
    815 F.3d 292
    , 295 (7th Cir. 2016). A petitioner
    may, however, overcome procedural default by showing
    cause for the default and actual prejudice, Bousley v. United
    States, 
    523 U.S. 614
    , 622 (1998), or that “failure to consider the
    defaulted claim will result in a fundamental miscarriage of
    justice,” Johnson v. Loftus, 
    518 F.3d 453
    , 455–56 (7th Cir. 2008).
    Cross and Davis have established their right to raise this claim
    by way of the “cause and prejudice” avenue. We thus have no
    need to discuss the question whether the “fundamental mis-
    carriage of justice” approach might also support their mo-
    tions.
    We have no doubt that an extended prison term—which
    was imposed on both men as a result of their designation as
    career offenders—constitutes prejudice. See Glover v. United
    States, 
    531 U.S. 198
    , 203 (2001). That narrows our inquiry to
    whether they have shown cause for not objecting at trial. A
    change in the law may constitute cause for a procedural de-
    fault if it creates “a claim that ‘is so novel that its legal basis is
    not reasonably available to counsel.’” 
    Bousley, 523 U.S. at 622
    (quoting Reed v. Ross, 
    468 U.S. 1
    , 16 (1984)). In Reed, the Court
    identified three nonexclusive situations in which an attorney
    may lack a “reasonable basis” to raise a novel claim:
    10                                       Nos. 17-2282 & 17-2724
    First, a decision of this Court may explicitly overrule
    one of our precedents. Second, a decision may “over-
    tur[n] a longstanding and widespread practice to
    which this Court has not spoken, but which a near-
    unanimous body of lower court authority has ex-
    pressly approved.” And, finally, a decision may “dis-
    approv[e] a practice this Court arguably has sanc-
    tioned in prior cases.”
    
    Reed, 468 U.S. at 17
    (quoting United States v. Johnson, 
    457 U.S. 537
    , 551 (1982)).
    The government, relying on a footnote in Richardson v.
    Lemke, 
    745 F.3d 258
    , 274 n.7 (7th Cir. 2014), suggests that Reed
    is no longer good law. In Richardson, we assumed the validity
    of Reed, even as we noted that in Prihoda v.
    McCaughtry, 
    910 F.2d 1379
    , 1386 (7th Cir. 1990), we had ques-
    tioned Reed’s continuing force after Teague v. Lane, 
    489 U.S. 288
    (1989). Later cases, however, put our concerns to rest. The
    Supreme Court has since relied on Reed, see 
    Bousley, 523 U.S. at 622
    , as have we, e.g., McCoy v. United 
    States, 815 F.3d at 295
    –
    96 (7th Cir. 2016); McKinley v. Butler, 
    809 F.3d 908
    , 912 (7th Cir.
    2016). Moreover, Prihoda did not hold that legal change as un-
    derstood by Reed could never constitute cause; rather, it said
    that legal change had to qualify as retroactive under Teague
    for the petitioner to prevail. 
    Prihoda, 910 F.2d at 1385
    –86. In
    other words, we thought that legal change under Teague was
    concentrically nested within legal change under Reed, render-
    ing the latter superfluous once a claim qualified under Teague.
    
    Id. Cross and
    Davis could not reasonably have challenged the
    guidelines residual clause when the district court sentenced
    them in 1992 and 2000 respectively. On this point, we agree
    Nos. 17-2282 & 17-2724                                          11
    with our sister circuits that “no one—the government, the
    judge, or the [defendant]—could reasonably have anticipated
    Johnson.” United States v. Snyder, 
    871 F.3d 1122
    , 1127 (10th Cir.
    2017) (quoting United States v. Redrick, 
    841 F.3d 478
    , 480
    (D.C. Cir. 2016)). In fact, the Johnson Court expressly over-
    ruled its own precedent, 
    135 S. Ct. 2563
    (“Our contrary hold-
    ings in James[, 
    550 U.S. 192
    ,] and Sykes[, 
    131 S. Ct. 2267
    ,] are
    overruled.”), and so satisfied the first criterion of Reed. Alt-
    hough Johnson involved the ACCA rather than the career-of-
    fender guidelines, the language it evaluated was nearly iden-
    tical to that in the career-offender guidelines. We
    acknowledge that the cases overruled by Johnson were not de-
    cided until 2007 and 2011—after the petitioners’ sentencing—
    and thus could not themselves have influenced petitioners’
    failure to object at trial. Nonetheless, when the Supreme
    Court reverses course, the change generally indicates an ab-
    rupt shift in law. The alternative would be a case of waffling,
    where the overruled cases themselves rejected prior prece-
    dent and the later case merely restored a status quo ante. That
    is not our situation.
    Johnson represented the type of abrupt shift with which
    Reed was concerned. Until Johnson, the Supreme Court had
    been engaged in a painful effort to make sense of the residual
    clause. In James, it took the position that the validity of the re-
    sidual clause was so clear that it could summarily reject Jus-
    tice Scalia’s contrary view in a footnote. That footnote pro-
    vided no argument, noted that the constitutional issue was
    not even “pressed by James or his amici,” and took comfort
    from the broad use of “[s]imilar formulations” throughout the
    statute books. 
    James, 550 U.S. at 210
    n.6. Eight years later, the
    Court made a U-turn and tossed out the ACCA residual
    clause as unconstitutionally vague. We join the Tenth Circuit
    12                                      Nos. 17-2282 & 17-2724
    in excusing, under Reed’s first category, the petitioners’ failure
    to challenge the residual clause prior to Johnson. 
    Snyder, 871 F.3d at 1125
    , 1127.
    The second and third scenarios identified by Reed present
    even more compelling grounds to excuse Cross’s and Davis’s
    procedural defaults. Johnson abrogated a substantial body of
    circuit court precedent upholding the residual clause against
    vagueness challenges. E.g., 
    Brierton, 165 F.3d at 1138
    –39;
    United States v. Presley, 
    52 F.3d 64
    , 68 (4th Cir. 1995); United
    States v. Argo, 
    925 F.2d 1133
    , 1134–35 (9th Cir. 1991). Although
    most of these decisions postdate Davis’s sentencing (though
    not Cross’s), no court ever came close to striking down the
    residual clause before 1992 or even suggested that it would
    entertain such a challenge. Finally, the Supreme Court had
    implicitly “sanctioned” the residual clause by interpreting it
    as if it were determinate. Stinson v. United States, 
    508 U.S. 36
    (1993); Taylor v. United States, 
    495 U.S. 575
    (1990). Thus, the
    parties’ inability to anticipate Johnson excuses their proce-
    dural default.
    III
    A
    The government has also raised particular objections in
    each case. We begin with Davis’s appeal. The government
    suggests that Davis’s predicate conviction for robbery, to
    which the residual clause applied, also fell afoul of the ele-
    ments clause of the guidelines. Thus, it says, regardless of the
    validity of the residual clause, the district court properly clas-
    sified and sentenced him as a career offender. That argument
    may work in some cases, but it does not suffice here. Although
    Nos. 17-2282 & 17-2724                                          13
    both parties acknowledge that Davis’s robbery conviction sat-
    isfied the elements clause as understood at the time of his sen-
    tencing, Curtis Johnson v. United States, 
    559 U.S. 133
    (2010), has
    since held that an offense must entail a greater degree of force
    to trigger that clause. (For the sake of clarity, we adopt the
    parties’ practice of referring to Curtis Darnell Johnson v. United
    States, 
    559 U.S. 133
    , as Curtis Johnson; we will continue to refer
    to United States v. Samuel James Johnson, 
    135 S. Ct. 2551
    (2015),
    as Johnson.). Davis’s conviction cannot satisfy the heightened
    requirement of Curtis Johnson.
    Davis’s earlier conviction was for simple robbery. The
    guidelines designate a felony as a crime of violence if it “has
    as an element the use, attempted use, or threatened use of
    physical force against the person of another.” U.S.S.G.
    § 4B1.2(1)(i). Interpreting the identical clause of the ACCA,
    Curtis Johnson held that “the phrase ‘physical force’ means vi-
    olent force—that is, force capable of causing physical pain or
    injury to another person.” 
    559 U.S. 133
    , 140 (2010). It further
    determined that Florida’s crime of simple battery did not
    meet this threshold. 
    Id. at 145.
    A Florida statute defined sim-
    ple battery to include “[a]ctually and intentionally touch[ing]
    or strik[ing] another person against the will of the other.” 
    Id. at 136
    (quoting FLA. STAT. § 784.03(1)(a)(1)). In determining
    whether a violation of the act triggered the elements clause,
    the Court was “bound by the Florida Supreme Court’s inter-
    pretation” that “the element of ‘actually and intentionally
    touching’ … [was] satisfied by any intentional physical con-
    tact, ‘no matter how slight,’” 
    id. at 138
    (quoting State v. Hearns,
    
    961 So. 2d 211
    , 218 (Fla. 2007)), including “[t]he most ‘nominal
    contact,’ such as a ‘ta[p] … on the shoulder without consent,’”
    
    id. (quoting Hearns,
    961 So. 2d at 219). Florida’s simple battery
    14                                       Nos. 17-2282 & 17-2724
    law thus criminalized a greater variety of conduct than the
    force clause punished.
    The same is true of Davis’s conviction for simple robbery
    in Wisconsin. The relevant Wisconsin statute provides that
    robbery can be committed in two ways:
    (a) By using force against the person of the owner with
    intent thereby to overcome his or her physical re-
    sistance or physical power of resistance to the taking or
    carrying away of the property; or
    (b) By threatening the imminent use of force against
    the person of the owner or of another who is present
    with intent thereby to compel the owner to acquiesce
    in the taking or carrying away of the property.
    WIS. STAT. § 943.32(1). The Wisconsin Supreme Court has
    expressly stated that the requisite force is “not to be
    confounded with violence” and the “degree of force used by
    the defendant is immaterial.” Walton v. State, 
    218 N.W.2d 309
    ,
    312 (Wis. 1974); see also Whitaker v. State, 
    265 N.W.2d 575
    , 579
    (Wis. 1978). Walton and Whitaker thus parallel the
    Florida Supreme Court’s decision in Hearns by defining force
    to include nonviolent physical contact. Given this
    authoritative interpretation of Wisconsin law, section
    943.32(1) does not trigger the elements clause under
    Curtis Johnson.
    Curtis Johnson, of course, said nothing about the residual
    clause. It spoke only to the elements clause. Curtis Johnson
    thus provided Davis with no basis to move for resentencing
    under section 2255. Contrary to the government’s assertion,
    nothing had happened that would have initiated the relevant
    limitation period under section 2255(f)(3). That provision has
    Nos. 17-2282 & 17-2724                                         15
    meaning only if read in conjunction with the right it limits—
    a right that section 2255(a) creates. Section 2255(a) permits a
    motion to set aside a sentence by a prisoner “claiming the
    right to be released upon the ground that the sentence was
    imposed in violation of the Constitution or laws of the United
    States.” 28 U.S.C. § 2255(a).
    Prior to Johnson, Davis had no basis to assert that his sen-
    tence was illegal and thus he could not claim a right to be re-
    leased. Curtis Johnson did not change that fact: all it did was to
    eliminate the elements clause as a basis for Davis’s status,
    which became entirely dependent on the residual clause.
    There matters stayed until Johnson. Only then could Davis file
    a nonfrivolous motion for relief. Section 2255(f)(3) applies a
    limitation period of one year from “the date on which the
    right asserted was initially recognized by the Supreme
    Court.” 28 U.S.C. § 2255(f)(3). It was not until Johnson that the
    Supreme Court recognized Davis’s asserted right “to be re-
    leased” on account of an illegal or unconstitutional sentence.
    28 U.S.C. § 2255(a) (emphasis added). Only by divorcing sec-
    tion 2255(f)(3) from section 2255(a) could one say that Davis’s
    right to petition for his release ended before it began.
    In support of its proposed rule, the government offers only
    an excerpt from a single case, Stanley v. United States, which
    held that Curtis Johnson rather than Johnson triggered the lim-
    itation period under section 2255(f)(3). 
    827 F.3d 562
    , 565
    (7th Cir. 2016). But a closer look at Stanley demonstrates that
    it does not help the government. In Stanley, Johnson did not
    reopen the limitations period because, regardless of the con-
    stitutionality of the residual clause, only the elements clause
    had ever justified Stanley’s sentence. 
    Stanley, 827 F.3d at 565
    .
    The residual clause, and hence Johnson, was irrelevant. 
    Id. 16 Nos.
    17-2282 & 17-2724
    Moreover, we were careful to note that the prisoner might
    have relied on Johnson to trigger section 2255(f)(3) had he “de-
    cided not to press an argument about the elements clause at
    [his original] sentencing, or on appeal,” because “the only
    consequence would have been to move a conviction from the
    elements clause to the residual clause.” 
    Id. That is
    precisely
    the situation presented here.
    B
    Turning to Cross’s case, the government argues that a
    waiver clause in his plea agreement bars him from bringing
    his motion under section 2255. Plea agreements are contracts
    through which defendants bargain away fundamental rights.
    E.g., United States v. Ingram, 
    979 F.2d 1179
    , 1184 (7th Cir. 1992).
    We therefore construe plea agreements according to the ordi-
    nary principles of contract law, but with a heightened obliga-
    tion both to secure for defendants the benefits of their negoti-
    ation and to restrict only those rights they properly relin-
    quished. E.g., 
    id. (“Plea agreements,
    however, are ‘unique con-
    tracts’ and the ordinary contract principles are supplemented
    with a concern that the bargaining process not violate the de-
    fendant’s right to fundamental fairness under the Due Process
    Clause.”); United States v. Quintero, 
    618 F.3d 746
    , 751 (2010)
    (“‘[W]e interpret the terms of the agreement according to the
    parties’ reasonable expectations’ and construe any ambigui-
    ties in the light most favorable to” the defendant), quoting
    United States v. Woods, 
    581 F.3d 531
    , 534 (7th Cir. 2009)); see
    also, e.g., United States v. Alcala, 
    678 F.3d 574
    , 577 (7th Cir.
    2012). A valid appeal waiver must speak in “express and un-
    ambiguous” terms. 
    Quintero, 618 F.3d at 751
    ; United States v.
    Woolley, 
    123 F.3d 627
    , 632 (7th Cir. 1997) (quoting United States
    v. Hendrickson, 
    22 F.3d 170
    , 174 (7th Cir. 1994). Contrary to the
    Nos. 17-2282 & 17-2724                                        17
    government’s assertions, we determine de novo whether a plea
    agreement satisfies this requirement. 
    Alcala, 678 F.3d at 577
    ;
    
    Ingram, 979 F.2d at 1184
    .
    Cross’s waiver of his right to bring a section 2255 motion
    was not unlimited. It did not include, for instance, a challenge
    to “the court’s reliance on any constitutionally impermissible
    factor.” Both the district court and government interpret that
    carve-out to encompass only a narrow set of factors read into
    all appeal waivers as a matter of constitutional law. Under this
    exception, even a blanket appeal waiver cannot foreclose a de-
    fendant’s right to challenge the sentencing court’s use of a
    constitutionally impermissible, identity-based factor such as
    race or gender. E.g., Jones v. United States, 
    167 F.3d 1142
    , 1144
    (7th Cir. 1999). According to the government, the written
    carve-out in Cross’s agreement merely replicates this consti-
    tutional baseline and thus does not cover Cross’s motion.
    Cross reads the carve-out to include any unconstitutional
    input in sentencing. This is a reasonable interpretation. Even
    if we thought the government’s reading were also reasonable,
    we would be left with an ambiguous waiver that should not
    apply to Cross’s section 2255 motion. The language of the plea
    agreement does not limit the term “constitutionally imper-
    missible factor” to the exceptions that we must read into all
    appeal waivers. A “factor,” in its relevant sense, is simply
    “[a]n element or constituent, esp[ecially] one which contrib-
    utes to or influences a process or result.” Factor, OXFORD
    ENGLISH       DICTIONARY        (3d     ed.     Sept.     2014),
    http://www.oed.com/view/Entry/67512?rskey=tf2pMV&re-
    sult=1&isAdvanced=false#eid. Courts routinely use the word
    factor to refer to mandatory-guidelines inputs. E.g., United
    States v. 
    Booker, 543 U.S. at 241
    –42 (noting that the guidelines
    18                                       Nos. 17-2282 & 17-2724
    set sentencing ranges “based on various factors related to the
    offense and the offender”); Koon v. United States, 
    518 U.S. 81
    ,
    92 (1996). The guidelines do the same, including with respect
    to the career-criminal enhancement. E.g., U.S.S.G. § 1B1.3.
    Cross’s designation as a career offender on the basis of the re-
    sidual clause was a crucial element of the sentencing court’s
    guidelines calculation. It contributed directly to his resulting
    sentence and was thus a factor in his sentence.
    We are satisfied that the exception in Cross’s waiver for
    any “constitutionally impermissible factor” in sentencing co-
    vers the alleged illicit use of the residual clause to calculate
    his guidelines range. Cross thus retained the right to file the
    present section 2255 motion.
    IV
    Having dispensed with these procedural hurdles, we are
    at last ready to resolve the central issue on appeal: whether,
    under Johnson, relief is available to Davis and Cross. Johnson
    establishes that the residual clause of the ACCA is unconsti-
    tutionally 
    vague. 135 S. Ct. at 2557
    . Therefore, if a) the residual
    clause of the guidelines suffers from the same indeterminacy
    and b) the constitutional requirement of clarity applies to the
    mandatory guidelines, then we must declare that clause void
    as well.
    A
    Johnson homed in on a confluence of two factors that de-
    prived the residual clause of the ACCA of sufficiently definite
    
    meaning. 135 S. Ct. at 2557
    –58; see also Sessions v. Dimaya,
    
    138 S. Ct. 1204
    , 1213 (2018). First, the ACCA clause required
    judges to assess the risk of injury associated with a defend-
    ant’s prior convictions using a categorical approach. Johnson,
    Nos. 17-2282 & 17-2724                                        
    19 135 S. Ct. at 2557
    . In other words, “[i]t tie[d] the judicial as-
    sessment of risk to a judicially imagined ‘ordinary case’ of a
    crime, not to real-world facts or statutory elements.” 
    Id. Sec- ond,
    it required judges to weigh the apparent danger posed
    by those idealized offenses against the nebulous metric of “se-
    rious potential risk.” 
    Id. at 2557.
    The “combin[ed] indetermi-
    nacy” concerning how much risk the crimes of conviction
    posed and the degree of risk required of violent felonies pro-
    duced unacceptable “unpredictability and arbitrariness.” 
    Id. at 2558.
       These same two faults inhere in the residual clause of the
    guidelines. It hardly could be otherwise because the two
    clauses are materially identical. The mandatory minimum
    provisions of the ACCA apply to defendants who “ha[ve]
    three previous convictions … for a violent felony or a serious
    drug offense.” 18 U.S.C. § 924(e)(1). The statute defines “vio-
    lent felony” as one that:
    (i)    has as an element the use, attempted use, or
    threatened use of physical force against the per-
    son 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 in-
    jury to another.
    18 U.S.C. § 924(e)(2)(B). Instead of referring to a “violent fel-
    ony,” the guidelines speak of a defendant’s “ha[ving] at least
    two prior felony convictions of either a crime of violence or a
    controlled substance offense.” U.S.S.G. § 4B1.1. Its definition
    of a “crime of violence,” however, is identical to that of “vio-
    20                                       Nos. 17-2282 & 17-2724
    lent felony” in the ACCA. A “crime of violence” is “any of-
    fense under federal or state law, 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 per-
    son of another, or
    (ii)   is burglary of a dwelling, arson, or extortion, in-
    volves use of explosives, or otherwise involves
    conduct that presents a serious potential risk of
    physical injury to another.
    U.S.S.G. § 4B1.2 (1992) (emphasis added); see also U.S.S.G.
    § 4B1.2 (2000) (replacing roman with arabic numerals and
    adding a comma before “that” in the introductory clause). The
    only linguistic difference between the two is italicized. In the
    enumerated crimes section, burglary under the guidelines is
    limited to burglary of a dwelling. Otherwise, the two defini-
    tions are identical, as the Supreme Court has acknowledged.
    See 
    Beckles, 137 S. Ct. at 890
    (describing the residual clauses as
    “identically worded”). (Nitpickers may also notice that
    ACCA and 1992 edition of the guidelines use roman numer-
    als, while the 2000 edition adopted arabic numerals. We can-
    not fathom why that should matter.)
    Johnson confirmed that the categorical approach applies to
    the residual clause of the 
    ACCA. 135 S. Ct. at 2561
    –62; see also
    
    id. at 2579–80
    (Alito, J., dissenting). The majority gave three
    reasons for doing so. All three of those reasons apply with
    equal force to the guidelines. First, in the face of the Court’s
    consistent application of the categorical approach to the resid-
    ual clause, the government did not, in Johnson, ask it to aban-
    don that approach. 
    Id. at 2562
    (majority opinion). We too have
    Nos. 17-2282 & 17-2724                                          21
    taken the position that the categorical approach applies to the
    guidelines without eliciting any objection from the govern-
    ment (either in this case or others). E.g., United States v. Woods,
    
    576 F.3d 400
    , 403–04 (7th Cir. 2009). Second, the ACCA “refers
    to ‘a person who … has three previous convictions’ for—not
    a person who has committed—three previous violent felonies
    or drug offenses.” 
    Johnson, 135 S. Ct. at 2562
    (quoting in its
    entirety from Taylor v. United States, 
    495 U.S. 575
    , 600 (1990)).
    Johnson held that “[t]his emphasis on convictions indicates
    that ‘Congress intended the sentencing court to look only to
    the fact that the defendant had been convicted of crimes fall-
    ing within certain categories, and not to the facts underlying
    the prior convictions.’” 
    Id. (quoting Taylor
    , 495 U.S. at 600
    (1990)). Likewise, the guidelines refer to a defendant who
    “has at least two prior felony convictions of either a crime of
    violence or a controlled substance offense,” rather than a per-
    son who has committed two prior felonies. U.S.S.G. § 4B1.1.
    Third, the Court noted the “utter impracticability of requiring
    a sentencing court to reconstruct, long after the original con-
    viction, the conduct underlying that conviction.” 
    Johnson, 135 S. Ct. at 2551
    . That difficulty is just as acute under the guide-
    lines as under the ACCA.
    The additional words, “of a dwelling,” in the guidelines’
    enumerated clause do not focus the meaning of the phrase
    “serious potential risk” in the residual clause that follows. It
    might once have been argued that narrowing the enumerated
    burglary offense allows a more precise analogy to be drawn
    to the degree of harm with which the residual clause is con-
    cerned. But the Supreme Court closed the door on this noscitur
    a sociis style argument in Taylor. Taylor faced the converse
    problem of trying to determine the meaning of “burglary” in
    the enumerated clause of the ACCA, and in particular
    22                                      Nos. 17-2282 & 17-2724
    whether to read in the common-law requirement that a bur-
    glar must target a 
    dwelling. 495 U.S. at 593
    –96. Although Tay-
    lor entertained the converse notion that the requirement of a
    “serious potential risk” of injury in the residual clause might
    inform the meaning of the enumerated offenses, the Court re-
    frained from taking that approach:
    It could be argued, of course, that common-law bur-
    glary, by and large, involves a greater “potential risk
    of physical injury to another.” § 924(e)(2)(B)(ii). But,
    even assuming that Congress intended to restrict the
    predicate offense to some especially dangerous sub-
    class of burglaries, restricting it to common-law bur-
    glary would not be a rational way of doing so. The
    common-law definition does not require that the of-
    fender be armed or that the dwelling be occupied at the
    time of the crime. An armed burglary of an occupied
    commercial building, in the daytime, would seem to
    pose a far greater risk of harm to persons than an un-
    armed nocturnal breaking and entering of an unoccu-
    pied house. It seems unlikely that Congress would
    have considered the latter, but not the former, to be a
    “violent felony” counting towards a sentence enhance-
    ment.
    
    Id. at 594.
    Thus, limiting the enumerated offense to burglaries
    of dwellings sheds no light on the degree of risk required in
    the residual clause.
    The Supreme Court’s recent decision in Dimaya reconfirms
    our view that the residual clause of the guidelines shares the
    weaknesses that Johnson identified in the ACCA. Dimaya con-
    cerned an analogous residual clause in 18 U.S.C. § 16, as in-
    corporated into the Immigration and Nationality Act.
    Nos. 17-2282 & 17-2724                                         
    23 138 S. Ct. at 1210
    –11. The INA renders removable any “alien
    who is convicted of an aggravated felony at any time after ad-
    mission,” 8 U.S.C. § 1227(a)(2)(A)(iii), and precludes the can-
    cellation of his removal and adjustment of his status by the
    Attorney General, 
    id. § 1229b(a)(3),
    (b)(1)(C). The statute de-
    fines aggravated felony to include a “crime of violence … for
    which the term of imprisonment [is] at least one year.” 
    Id. § 1101(a)(43)(F).
    Section 16, in turn, contains the following
    definition of “crime of violence”:
    (a) an offense that has as an element the use, attempted
    use, or threatened use of physical force against the per-
    son or property of another, or
    (b) any other offense that is a felony and 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. § 16.
    The Court turned to Johnson for guidance in how to read
    section 16. It found no principled difference between the two
    statutes: Johnson, it said, “is a straightforward decision, with
    equally straightforward application here.” 
    Dimaya, 138 S. Ct. at 1213
    . Section 16’s residual clause suffered from indetermi-
    nacy in “just the same way” as the ACCA’s. 
    Id. at 1213.
    Both
    required a categorical approach to the predicate offenses, and
    both vaguely called for a “not-well-specified-yet-sufficiently-
    large degree of risk.” 
    Id. at 1216.
    In his concurrence, Justice
    Gorsuch highlighted the key parallels between the ACCA and
    statutory scheme at issue in Dimaya from which the Court’s
    conclusion flowed:
    24                                         Nos. 17-2282 & 17-2724
    Just like the statute in Johnson, the statute here instructs
    courts to impose special penalties on individuals pre-
    viously “convicted of” a “crime of violence.” Just like
    the statute in Johnson, the statute here fails to specify
    which crimes qualify for that label. Instead, and again
    like the statute in Johnson, the statute here seems to re-
    quire a judge to guess about the ordinary case of the
    crime and conviction and then guess whether a “sub-
    stantial risk” of “physical force” attends its commis-
    sion. Johnson held that a law that asks so much of courts
    while offering them so little by way of guidance is un-
    constitutionally vague. And I do not see how we might
    reach a different judgment here.
    
    Id. at 1231
    (Gorsuch, J., concurring). As we already have high-
    lighted, each of those three hallmarks is shared by the guide-
    lines. The guidelines speak of a defendant “convicted of” a
    crime of violence, do not specify the offenses belonging to the
    category, and leave judges to guess how much risk offenses
    must entail. Thus, to borrow Justice Gorsuch’s phrase, we “do
    not see how we might reach a different judgment here.”
    In fact, the textual differences between the ACCA and
    guidelines pale in comparison to the differences between the
    ACCA and section 16: section 16 lacks an enumerated clause;
    its residual clause requires “physical force” rather than
    “physical injury”; it requires a “substantial risk” rather than a
    “serious potential risk”; and it additionally requires that the
    offense involve that risk “by its nature” and that the risk arise
    “in the course of committing the offense.” Compare 18 U.S.C.
    § 16(b) with 18 U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G.
    § 4B1.2(a)(i). In dissent, Chief Justice Roberts sought to distin-
    Nos. 17-2282 & 17-2724                                         25
    guish Johnson on the basis of some of these differences, see Di-
    
    maya, 138 S. Ct. at 1235
    –37 (Roberts, C.J., dissenting), but the
    majority of his colleagues were unpersuaded, see 
    id. at 1218
    (majority opinion). Interestingly, the Dimaya majority consid-
    ered whether the complete absence of an enumerated-offense
    clause in section 16 affected the indeterminacy of its residual
    clause. 
    Id. at 1221.
    Resolving that question in the negative, the
    Court observed that the enumerated crimes of the ACCA had
    failed to establish a baseline degree of risk because they “were
    themselves too varied to provide such assistance.” 
    Id. (“Try- ing
    to reconcile them with each other, and then compare them
    to whatever unlisted crime was at issue, drove many a judge
    a little batty.”). The guidelines did not reduce that diversity
    by substituting burglary of a dwelling in a list that includes ex-
    tortion and use of explosives.
    Although several justices in Dimaya did question the vital-
    ity of the categorical approach, their opinions do not undercut
    our interpretation of the guidelines for two reasons. First,
    only a minority of the justices cast aspersions on the categori-
    cal approach. Justice Thomas, joined in part by Justices Ken-
    nedy and Alito, did so in dissent. 
    Id. at 1250–59
    (Thomas, J.,
    dissenting). Justice Gorsuch’s concurrence reserved judgment
    on the issue for the future. 
    Id. at 1232–33
    (Gorsuch, J., concur-
    ring). Until that time, Justice Gorsuch assumed that the cate-
    gorical approach did apply because, in part, the Supreme
    Court’s “precedent seemingly requires this approach.” 
    Id. at 1232.
    If that was enough to persuade the Justice, it is more
    than enough for us. As a lower court, we are required to fol-
    low the Court’s precedents until the Court itself tells us oth-
    erwise. Unless and until a majority of the Court overrules the
    26                                              Nos. 17-2282 & 17-2724
    majority opinions in Johnson and Dimaya, they continue to
    bind us. 1
    1 The Supreme Court recently vacated our judgments in United States
    v. Jenkins and United States v. Jackson, remanding those cases to us for re-
    consideration in light of Dimaya. United States v. Jenkins, No. 17-97, 
    2018 WL 2186183
    (U.S. May 14, 2018); United States v. Jackson, No. 17-651, 
    2018 WL 2186185
    (U.S. May 14, 2018). Those remands do not dictate our dispo-
    sition of the present appeals. Our now-vacated opinions in Jenkins and
    Jackson had held that the residual clause of 18 U.S.C. § 924(c)(3)(B) was
    unconstitutionally vague, and in so doing had assumed that the clause re-
    quired use of the categorical approach. United States v. Jackson, 
    865 F.3d 946
    , 952, 956 (7th Cir. 2017); see also United States v. Jenkins, 
    849 F.3d 390
    ,
    394 (7th Cir. 2017). The government had asked the Supreme Court to re-
    turn those cases to us because Dimaya “suggest[ed] that a court could, con-
    sistent with the canon of constitutional avoidance, construe Section
    924(c)(3)(B) to permit application of a non-categorical approach that con-
    siders the defendant’s conduct.” Supplemental Brief for the United States
    at 5, Jenkins & Jackson, 
    2018 WL 2186183
    & 
    2018 WL 2186185
    (U.S. Apr. 17,
    2018) (Nos. 17-97 & 17-651). The government was careful to distance sec-
    tion 924(c)(3)(B) from one of the prime justifications for applying the cat-
    egorical approach to the residual clause of section 924(e) of the ACCA,
    section 16(b), and the guidelines:
    A non-categorical approach … may make particular sense in the
    context of Section 924(c)(3)(B). Unlike Section 16(b) of the ACCA’s
    residual clause, Section 924(c)(3)(B)’s definition of a “crime of vi-
    olence” is never applied to a prior conviction, the specific facts of
    which may not be before the court. Section 924(c) instead employs
    the term “crime of violence” to describe the conduct involved in
    the present offense with which the defendant is charged.
    
    Id. at 3–4.
    We will reserve for our reconsideration of Jenkins and Jackson
    whether that difference is enough to justify jettisoning the categorical ap-
    proach for section 924(c)(3)(B). For the moment, it is enough for us to note
    that the guidelines, like sections 924(e) and 16(b), require courts to con-
    sider the defendant’s prior offenses.
    Nos. 17-2282 & 17-2724                                        27
    Second, with the exception of Justice Thomas, no justice
    swore off the categorical approach for the residual clause of
    the ACCA. 
    Id. at 1253–54
    (Thomas, J., dissenting). Rather, in
    the portion of his dissent joined by Justices Kennedy and
    Alito, Justice Thomas advocated abandoning that approach
    only when applying section 16. 
    Id. at 1254–59
    (Thomas, J., dis-
    senting). In its place, he advocated an “underlying-facts ap-
    proach”—i.e., analyzing the crime as committed. In Justice
    Thomas’s opinion, “both interpretations [were] linguistically
    possible,” 
    id. at 1255;
    however, he saw the diction and context
    of section 16 and, in particular, the doctrine of constitutional
    avoidance as counseling strongly in favor of the underlying-
    facts approach, 
    id. at 1255–56.
        In developing this argument, Justice Thomas was careful
    to distance section 16 from the factors that had justified adopt-
    ing the categorical approach for the ACCA—factors that ap-
    ply with equal force to the guidelines. First, adopting the un-
    derlying-facts approach for the ACCA would have raised
    Sixth Amendment concerns. Although those same concerns
    apply to the mandatory guidelines, see Booker, 
    543 U.S. 220
    , a
    jury right does not attach to immigration cases, 
    Dimaya, 138 S. Ct. at 1256
    . When section 16 is applied to criminal cases,
    Justice Thomas suggested that the defendant’s prior conduct
    should simply be indicted and proven at trial. Regardless of
    the merits of that suggestion (which Johnson rejected for the
    ACCA, see 135 S. Ct at 2580 (Alito, J., dissenting)), that for-
    ward-looking strategy cannot be applied to the now-con-
    cluded era of mandatory guidelines. Justice Thomas also in-
    voked context in support of his view. He noted that in the
    unique setting of the INA the Supreme Court had required an
    underlying-conduct approach to identify other aggravated
    felonies. 
    Dimaya, 138 S. Ct. at 1257
    . Finally, Justice Thomas
    28                                     Nos. 17-2282 & 17-2724
    thought that the practical concerns that had motivated John-
    son, and which apply with equal force to the mandatory
    guidelines, did not obtain in the context of immigration pro-
    ceedings. Immigration judges, rather than courts, would have
    to shoulder the burden of identifying past conduct. Justice
    Thomas thought that “those judges [were] already accus-
    tomed to finding facts about the conduct underlying an alien's
    prior convictions”—a task already imposed by other aspects
    of the INA—and there was no evidence that they had strug-
    gled to do so. 
    Id. at 1257–58.
    The same cannot be said of
    judges’ efforts to apply the guidelines residual clause.
    B
    The penultimate question before us is whether a vague-
    ness challenge directed against the guidelines is possible for
    defendants such as Cross and Davis whose sentences were
    handed down before Booker, when the guidelines were man-
    datory. If so, then they have a right to be resentenced because
    the residual clause that underlay both of their sentences suf-
    fered from the same vagueness that doomed its counterpart
    in the ACCA.
    The answer to that question depends in the first instance
    on the breadth of the Supreme Court’s holding in Beckles. In
    the context of a sentence imposed after the guidelines became
    discretionary, Beckles upheld the residual clause of the guide-
    lines against a Johnson-inspired vagueness 
    challenge. 137 S. Ct. at 890
    . The Supreme Court took care, however, to
    specify that it was addressing only the post-Booker, advisory
    version of the guidelines. It held “that the advisory Guidelines
    are not subject to vagueness challenges under the Due Process
    Clause,” 
    id. at 890
    (emphasis added), and referred repeatedly
    to the “advisory Guidelines” throughout the opinion, 
    id. at Nos.
    17-2282 & 17-2724                                        29
    890, 892, 894, 895, 896, 897. Indeed, it expressly distinguished
    Johnson on the ground that Johnson dealt with a binding resid-
    ual clause:
    Unlike the ACCA … the advisory Guidelines do not
    fix the permissible range of sentences. To the contrary,
    they merely guide the exercise of a court’s discretion
    in choosing an appropriate sentence within the statu-
    tory range. Accordingly, the Guidelines are not sub-
    ject to a vagueness challenge under the Due Process
    Clause. The residual clause in § 4B1.2(a)(2) therefore
    is not void for vagueness.
    
    Id. at 892.
    We take the Court at its word: the Beckles opinion
    applies only to the guidelines as they have been since 2005,
    not to the pre-Booker mandatory regime.
    Even more importantly, Beckles’s logic for declining to ap-
    ply the vagueness doctrine rests entirely on the advisory qual-
    ity of the current guidelines. The vagueness doctrine ensures
    that a “law regulating private conduct by fixing permissible
    sentences provides notice and avoids arbitrary enforcement
    by clearly specifying the range of penalties available.” 
    Id. at 895.
    Those purposes distinguish vagueness from the ex post
    facto clause, which Peugh tells us does apply to the advisory
    guidelines. The ex post facto clause bars a retroactive law if it
    “creates a significant risk of a higher 
    sentence.” 137 S. Ct. at 895
    (quoting 
    Peugh, 569 U.S. at 550
    ). Lengthening advisory
    guidelines terms increases the likelihood of prolonged sen-
    tences—thereby raising ex post facto concerns—because the
    advisory guidelines exert a powerful anchoring influence on
    judges. 
    Id. at 894;
    Peugh, 569 U.S. at 541
    –42. In contrast, advi-
    30                                      Nos. 17-2282 & 17-2724
    sory guidelines do “not implicate the twin concerns underly-
    ing vagueness doctrine—providing notice and preventing ar-
    bitrary enforcement,” 
    Beckles, 137 S. Ct. at 894
    :
    [E]ven perfectly clear Guidelines could not provide no-
    tice 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 … the sentencing court re-
    tains discretion to impose the enhanced sentence … .
    The advisory Guidelines also do not implicate … arbi-
    trary enforcement … . An unconstitutionally vague
    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 permits them to prescribe the sen-
    tences or sentencing range available. The Guidelines,
    however, do not regulate the public by prohibiting any
    conduct or by ‘establishing minimum and maximum
    penalties for [any] crime.’ Rather, the Guidelines ad-
    vise sentencing courts how to exercise their discretion
    within the bounds established by Congress.
    
    Id. at 894–95
    (quoting respectively Giaccio v. Pennsylvania,
    
    382 U.S. 399
    , 402–03 (1996) and Mistretta v. United States, 
    488 U.S. 361
    , 396 (1989)) (alterations in original) (citations omit-
    ted). Thus, the vagueness doctrine does not prohibit including
    the residual clause in the advisory guidelines.
    The mandatory guidelines did, however, implicate the con-
    cerns of the vagueness doctrine. Beckles reaffirmed that the
    void-for-vagueness doctrine applies to “laws that fix the per-
    missible sentences for criminal 
    offenses.” 137 S. Ct. at 892
    . As
    Nos. 17-2282 & 17-2724                                         31
    Booker described, the mandatory guidelines did just that. They
    fixed sentencing ranges from a constitutional perspective:
    The [mandatory] Guidelines … are not advisory;
    they are mandatory and binding on all judges. While
    subsection (a) of [18 U.S.C.] § 3553 of the sentencing
    statute lists the Sentencing Guidelines as one factor to
    be considered in imposing a sentence, subsection (b)
    directs that the court “shall impose a sentence of the
    kind, and within the range” established by the Guide-
    lines, subject to departures in specific, limited cases. …
    The availability of a departure in specified circum-
    stances does not avoid the constitutional issue … . The
    Guidelines permit departures from the prescribed sen-
    tencing 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 con-
    sideration by the Sentencing Commission in formulat-
    ing the guidelines that should result in a sentence dif-
    ferent 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 statu-
    tory maximum. … Importantly, however, departures
    are not available in every case, and in fact are unavail-
    able in most. In most cases, as a matter of law, the Com-
    mission will have adequately taken all relevant factors
    into account, and no departure will be legally permis-
    sible. In those instances, the judge is bound to impose
    a sentence within the Guidelines range. …
    Booker’s case illustrates the mandatory nature of
    the Guidelines. … Under these facts, the Guidelines
    32                                      Nos. 17-2282 & 17-2724
    specified an offense level of 32 … . Booker’s is a run-of-
    the-mill drug case, and does not present any factors
    that were inadequately considered by the Commission.
    The sentencing judge would therefore have been re-
    versed had he not imposed a sentence within the level
    32 Guidelines range.
    
    Booker, 543 U.S. at 233
    –34 (emphasis in original). In sum, as
    the Supreme Court understood in Booker, the residual clause
    of the mandatory guidelines did not merely guide judges’ dis-
    cretion; rather, it mandated a specific sentencing range and
    permitted deviation only on narrow, statutorily fixed bases.
    The Court thus addressed, and rejected, the argument that
    the possibility of departures from the mandatory guideline
    range was enough to make it advisory. We might add that
    even statutory minimum sentences are not exempt from de-
    partures, if, for instance, the government files a substantial-
    assistance motion, 18 U.S.C. § 3553(e), or the court finds that
    the defendant is entitled to the statutory safety valve, 
    id. § 3553(f).
    Yet, as we know from Johnson’s treatment of the
    ACCA, statutory minima must comply with the prohibition
    of vague laws. The existence of 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.
    We conclude that the mandatory guidelines’ incorporation
    of the vague residual clause impeded a person’s efforts to
    “regulate his conduct so as to avoid particular penalties” and
    left it to the judge to “prescribe the … sentencing range avail-
    able.” 
    Beckles, 137 S. Ct. at 894
    –95. Therefore, unlike the advi-
    sory guidelines, the mandatory guidelines implicated the
    “twin concerns” of the vagueness doctrine. 
    Id. at 894.
    The
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    mandatory guidelines are thus subject to attack on vagueness
    grounds.
    C
    The last question is whether Johnson applies retroactively
    to the residual clause of the career-offender guideline. A
    newly announced constitutional rule applies retroactively if it
    is either a substantive rule or a “watershed rule[] of criminal
    procedure.” 
    Welch, 136 S. Ct. at 1264
    (quoting Saffle v. Parks,
    
    494 U.S. 484
    , 495 (1990)). A substantive rule “alters the range
    of conduct or the class of persons that the law punishes,”
    whereas procedural rules “regulate only the manner of deter-
    mining the defendant’s culpability.” 
    Id. at 1264–65
    (quoting
    Schriro v. Summerlin, 
    542 U.S. 348
    , 353 (2004)). In Welch, the
    Supreme Court held that Johnson qualifies as a substantive
    rule, because it narrowed the class to whom the ACCA’s man-
    datory minimum applied, 
    id. at 1265:
       Before Johnson, the [ACCA] applied to any person who
    possessed a firearm after three violent felony convic-
    tions, even if one or more of those convictions fell un-
    der only the residual clause. An offender in that situa-
    tion faced 15 years to life in prison. After Johnson, the
    same person engaging in the same conduct is no longer
    subject to the Act and faces at most 10 years in prison.
    The residual clause is invalid under Johnson, so it can
    no longer mandate or authorize any sentence. Johnson
    establishes, in other words, that “even the use of im-
    peccable factfinding procedures could not legitimate”
    a sentence based on that clause. It follows that Johnson
    is a substantive decision.
    34                                       Nos. 17-2282 & 17-2724
    
    Id. (quoting United
    States v. U.S. Coin & Currency, 
    401 U.S. 715
    ,
    724 (1971)).
    The same logic justifies treating Johnson as substantive,
    and therefore retroactive, when applied to the mandatory
    guidelines. Just as excising the residual clause from the ACCA
    changed the punishment associated with illegally carrying a
    firearm, striking down the residual clause in the mandatory
    guidelines changes the sentencing range associated with
    Cross’s and Davis’s bank robberies. At the same time, it nar-
    rows the set of defendants punishable as career offenders for
    the commission of any number of crimes. In other words,
    Johnson has effectively changed Davis’s and Cross’s substan-
    tive crime for sentencing purposes from bank robbery by a
    career offender to simple bank robbery. Elimination of the re-
    sidual clause of section 4B1.2(a)(2) (in its mandatory guise)
    thus “alters the range of conduct or the class of persons that
    the law punishes” and qualifies as a retroactive, substantive
    rule. 
    Welch, 136 S. Ct. at 1264
    (quoting 
    Schriro, 542 U.S. at 353
    ).
    V
    We hold that both Cross and Davis are entitled to relief
    from their career-offender classifications, based on the Su-
    preme Court’s decision in Johnson. We thus REVERSE the dis-
    trict court and REMAND these cases with instructions to grant
    Cross’s and Davis’s section 2255 motions and to resentence
    them in accordance with this opinion.