Moore v. United States

United States Court of Appeals
For the First Circuit

No. 16-1612

DARNELL A. MOORE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

APPLICATION FOR LEAVE TO FILE A SECOND
OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255

Before

Thompson, Kayatta, and Barron,
Circuit Judges.

Inga L. Parsons for petitioner.
Michael A. Rotker, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom Kenneth A. Blanco,
Acting Assistant Attorney General, U.S. Department of Justice,
Criminal Division, Trevor N. McFadden, Deputy Assistant Attorney
General, U.S. Department of Justice, Criminal Division, William D.
Weinreb, Acting U.S. Attorney, and Dina M. Chaitowitz, Assistant
U.S. Attorney, Chief, Appellate Division, were on brief, for
respondent.

September 13, 2017
 KAYATTA, Circuit Judge. Darnell Moore seeks to file a

successive motion to vacate his federal sentence under 28 U.S.C.

§ 2255. Before he can do so, this court must certify that his

motion "contain[s] . . . a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable." 28 U.S.C. § 2255(h). The new

rule upon which Moore's motion relies, according to Moore, is that

announced in Johnson v. United States (Johnson II), 135 S. Ct.

2551 (2015). Johnson II declared unconstitutionally vague the

residual clause in the Armed Career Criminal Act's (ACCA)

definition of a "violent felony," see 18 U.S.C. § 924(e)(2)(B)(ii).

The Supreme Court made Johnson II retroactive to cases on

collateral review in Welch v. United States, 136 S. Ct. 1257

(2016). Moore seeks to argue in the district court that the new

rule created by Johnson II invalidates the residual clause of the

career offender guideline applied at his sentencing, which

occurred before United States v. Booker, 543 U.S. 220 (2005), made

the guidelines advisory, id. at 245 (opinion of Breyer, J.). For

the following reasons, we grant Moore the certification he

requests.

I.

In July 2000, Darnell Moore was charged with two counts

of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). See

United States v. Moore, 362 F.3d 129, 131 (1st Cir. 2004). He

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pleaded guilty in May 2002. Id. Sentencing occurred in October

2002, id. at 133–34, prior to the Supreme Court's decision in

Booker.

The sentencing court concluded that Moore fell under the

career offender guideline. Moore, 362 F.3d at 131–32. That

guideline applied to defendants who were at least eighteen years

old at the time of the offense of conviction, whose offense of

conviction was a "crime of violence or a controlled substance

offense," and who had "at least two prior felony convictions of

either a crime of violence or a controlled substance offense."

U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1 (U.S.

Sentencing Comm'n Nov. 1, 2001). The definition of a "crime of

violence" included

any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that--
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.

Id. § 4B1.2 (Nov. 1, 2001). Moore had prior convictions in

Massachusetts state courts for assault and battery, assault and

battery on a corrections officer, breaking and entering during the

daytime, and assault with a dangerous weapon. To classify Moore

as a career offender, the district court must have concluded that

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at least two of these prior convictions satisfied the guidelines'

definition of "crime of violence."

The career offender guideline increased Moore's criminal

history category to VI and, because the unarmed bank robbery

conviction carried a statutory maximum sentence of twenty years,

see 18 U.S.C. § 2113(a), increased Moore's offense level to thirty-

two. See U.S.S.G. § 4B1.1 (Nov. 1, 2001). Using this offense

level and this criminal history category, Moore's mandatory

guidelines sentencing range was 210 to 262 months.1 See Moore,

362 F.3d at 133–34; see also U.S.S.G. Ch. 5, Pt. A (Nov. 1, 2001)

(Sentencing Table). The district court sentenced him to 216

months' imprisonment. Moore, 362 F.3d at 134.

In March 2005, Moore filed a motion to vacate his

sentence under 28 U.S.C. § 2255. He argued, among other things,

that Booker applied retroactively and thus the district court erred

by treating the guidelines as mandatory at his sentencing. The

district court denied the motion, ruling that Booker did not have

retroactive effect. Moore did not appeal that denial.2

1
Moore was denied an acceptance of responsibility reduction
to his offense level because he had absconded before sentencing.
Moore, 362 F.3d at 133–34.
2
Moore later filed a motion to "Vacate Sentence as Void,"
apparently under Federal Rule of Civil Procedure 60(b)(4). After
that motion was denied and Moore appealed, this court treated his
motion as a second § 2255 motion that had been filed without the
certification required by § 2255(h), and therefore summarily

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 In June 2015, the Supreme Court handed down its opinion

in Johnson II. The opinion addressed the ACCA, which mandates the

increase of minimum and maximum sentences for certain crimes

whenever the defendant has previously been convicted of a "violent

felony." The ACCA's definition of a "violent felony" reads, in

relevant part:

[T]he term "violent felony" means any crime
punishable by imprisonment for a term
exceeding one year . . . that--
(i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to
another . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added).

In Johnson II, the Supreme Court held that the clause

underlined above, called the "residual clause," was so vague that

it violated due process for the ACCA to use it to increase minimum

or maximum allowable sentences. 135 S. Ct. at 2557. The Court's

prior opinions had established that the residual clause was to be

applied in the following way: First, a court would identify an

"ordinary case" of the crime in question. Id. Second, the court

would determine whether that ordinary case presented a serious

potential risk of physical injury to another, with the level of

affirmed the district court's denial of the motion. See Judgment,
United States v. Moore, No. 11-2078 (1st Cir. May 14, 2012).

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risk that qualified as "serious" being identified with reference

to the level of risk involved in the enumerated offenses (burglary,

arson, extortion, or a crime involving the use of explosives).

Id.

The Court concluded that this way of analyzing the

residual clause "combin[ed] indeterminacy about how to measure the

risk posed by a crime with indeterminacy about how much risk it

takes for the crime to qualify as a violent felony." Id. at 2558.

That is, it was unclear both how to identify the "ordinary case"

of a crime and how much risk of physical injury to another counted

as a "serious potential risk." This compounded indeterminacy "both

denie[d] fair notice to defendants and invite[d] arbitrary

enforcement by judges." Id. at 2557. The residual clause thereby

contravened a central component of due process: "[t]he prohibition

of vagueness in criminal statutes," id. at 2556–57, which applies

"not only to statutes defining elements of crimes, but also to

statutes fixing sentences," id. at 2557.

The question before the Court in Welch was whether

Johnson II applied retroactively to cases on collateral review.

The first step in answering this question was determining whether

Johnson II announced a new rule of constitutional law. "'[A] case

announces a new rule . . . when it breaks new ground or imposes a

new obligation' on the government." Chaidez v. United States, 568

U.S. 342, 347 (2013) (first alteration in original) (quoting Teague

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v. Lane, 489 U.S. 288, 301 (1989) (O'Connor, J., plurality

opinion)). "To put it differently, . . . a case announces a new

rule if the result was not dictated by precedent existing at the

time the defendant's conviction became final." Id. (emphasis

omitted) (quoting Teague, 489 U.S. at 301). A holding is only

dictated by precedent if "it would have been 'apparent to all

reasonable jurists.'" Id. (quoting Lambrix v. Singletary, 520

U.S. 518, 527–528 (1997)). However, "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.

(alterations in original) (emphasis omitted) (quoting Teague, 489

U.S. at 307). The parties in Welch agreed that Johnson II

announced a new rule of constitutional law.

A new rule of constitutional law applies retroactively

to cases on collateral review only if it is a "substantive rule[],"

Welch, 136 S. Ct. at 1264 (emphasis omitted) (quoting Schriro v.

Summerlin, 542 U.S. 348, 351 (2004)), or if it is a "watershed

rule[] of criminal procedure," id. (quoting Saffle v. Parks, 494

U.S. 484, 495 (1990)). The parties in Welch also agreed that

Johnson II was not a watershed rule of criminal procedure. Id.

So, the question before the Court in Welch was whether Johnson II

announced a substantive rule.

The Court concluded that it did. "A rule is substantive

rather than procedural if it alters the range of conduct or the

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class of persons that the law punishes." Id. at 1264–65 (quoting

Schriro, 542 U.S. at 353). The Court reasoned that "[b]y striking

down the residual clause as void for vagueness, [Johnson II]

changed the substantive reach of the Armed Career Criminal Act,

altering 'the range of conduct or the class of persons that the

[Act] punishes.'" Id. at 1265 (second alteration in original)

(quoting Schriro, 542 U.S. at 353). Johnson II was a substantive

rule because, before that decision, "the [ACCA] applied to any

person who possessed a firearm after three violent felony

convictions, even if one or more of those convictions fell under

only the residual clause." Id. After that decision, by contrast,

"'even the use of impeccable factfinding procedures could not

legitimate' a sentence based on that clause." Id. (quoting United

States v. United States Coin & Currency, 401 U.S. 715, 724 (1971)).

Johnson II was not a procedural decision because it "had nothing

to do with the range of permissible methods a court might use to

determine whether a defendant should be sentenced under the Armed

Career Criminal Act," such as by "'allocat[ing] decisionmaking

authority' between judge and jury, or regulat[ing] the evidence

that the court could consider in making its decision." Id.

(quoting Schriro, 542 U.S. at 353).

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 Moore filed this § 2255 motion in May 2016, which was

both after Welch and within one year of Johnson II.3 He argues

that the new rule established in Johnson II and made retroactive

by Welch applies directly to the residual clause of the pre-Booker

career offender guideline under which he was sentenced. That

residual clause is identical to the ACCA residual clause at issue

in Johnson II.

While this motion was pending before us, the Supreme

Court decided in Beckles v. United States that the identical

residual clause employed in the post-Booker advisory guidelines is

"not subject to a vagueness challenge under the Due Process

Clause." 137 S. Ct. 886, 892 (2017). Beckles's reasoning relied

on the conclusion that the post-Booker guidelines "do not fix the

permissible range of sentences," id., and therefore "do not

implicate the twin concerns underlying vagueness doctrine--

providing notice and preventing arbitrary enforcement," id. at

894. At our request, the parties filed supplemental briefs

addressing both Beckles and two recent cases from this circuit

that might bear on whether Moore's predicate offenses satisfy other

clauses of the crime of violence definition. See United States v.

Faust, 853 F.3d 39 (1st Cir.), reh'g denied, 2017 WL 3045957 (1st

3
The motion thus fell within the one-year statute of
limitations for filing § 2255 motions. See 28 U.S.C. § 2255(f)(3).

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Cir. July 19, 2017); United States v. Tavares, 843 F.3d 1 (1st

Cir. 2016), reh'g denied, 849 F.3d 529 (1st Cir. 2017).

II.

We next set up the legal lens through which we view

Moore's motion, and then explain why that view favors letting Moore

litigate his second or successive § 2255 motion.

A.

This motion comes to us under the following statutory

provision:

A second or successive motion must be
certified as provided in section 2244 by a
panel of the appropriate court of appeals to
contain--
. . .
(2) a new rule of constitutional law,
made retroactive to cases on collateral review
by the Supreme Court, that was previously
unavailable.

28 U.S.C. § 2255(h). The cross-referenced section, 28 U.S.C.

§ 2244, contains several provisions that require this court's

consideration of a request for certification of a successive motion

to be fast, unreviewable, and limited.

First, "[t]he court of appeals shall grant or deny the

authorization to file a second or successive application not later

than 30 days after the filing of the motion." Id. § 2244(b)(3)(D).

Although we have exceeded this time limitation here, we have

previously concluded that it "operates as a guideline, not as an

imperative." Rodriguez v. Superintendent, Bay State Corr. Ctr.,

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139 F.3d 270, 272–73 (1st Cir. 1998), abrogated in part by Bousley

v. United States, 523 U.S. 614 (1998). Nevertheless, the existence

of this thirty-day guideline suggests that a request for

certification that can only be denied by working through complex

issues is a certification request that should likely be granted.

See Evans-García v. United States, 744 F.3d 235, 238 (1st Cir.

2014) ("[I]n ruling on certification requests, we often must strive

to move more quickly than a full consideration of the merits might

reasonably require.").

Second, "[t]he grant or denial of an authorization by a

court of appeals to file a second or successive application shall

not be appealable and shall not be the subject of a petition for

rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).

The unavailability of review for a certification decision counsels

greater caution before denying an authorization than before

granting one. See Evans-García, 744 F.3d at 239 ("We are

cognizant . . . that if we err in granting certification, ample

opportunity for correcting that error will remain. Conversely,

should we err in denying certification, [the petitioner] will have

no opportunity to appeal or seek rehearing en banc."); see also In

re Embry, 831 F.3d 377, 382 (6th Cir. 2016) (recognizing that "[a]

denial of a motion to authorize a successive petition is

unreviewable--not by the en banc court, not by the Supreme Court,"

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whereas, "[b]y granting such a motion, even many such

motions . . . , we decide nothing with finality").

Third, we may "authorize the filing of a second or

successive application only if [we] determine[] that the

application makes a prima facie showing that the application

satisfies the requirements of this subsection." 28 U.S.C.

§ 2244(b)(3)(C). Although the statutory language is not pellucid,

other circuits have interpreted "the requirements of this

subsection" to mean the requirements contained in § 2244(b),

including § 2244(b)(1)–(2), even though those subsections only

appear to apply to § 2254 motions by their terms. See, e.g., Bell

v. United States, 296 F.3d 127, 128 (2d Cir. 2002); Bennett v.

United States, 119 F.3d 468, 469 (7th Cir. 1997). Moore has not

challenged this consensus. Under this interpretation, the movant

must "make[] a prima facie showing," 28 U.S.C. § 2244(b)(3)(C),

"that the claim [contained in the successive motion] relies on a

new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable," id. § 2244(b)(2)(A).

A "prima facie showing" at the certification stage is

merely "a sufficient showing of possible merit to warrant a fuller

exploration by the district court." Rodriguez, 139 F.3d at 272–

73 (quoting Bennett, 119 F.3d at 469). When deciding whether to

certify a § 2255 motion, "our task is not to decide for certain

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whether the petition has merit, but rather to determine whether

'it appears reasonably likely that the application satisfies the

stringent requirements for the filing of a second or successive

petition.'" Evans-García, 744 F.3d at 237 (quoting Rodriguez, 139

F.3d at 273). Although the standard, thus described, appears quite

easy to satisfy, Rodriguez nevertheless contains an admonition

that "despite its superficially lenient language, the [prima

facie] standard erects a high hurdle." 139 F.3d at 273.

Reconciling these seemingly contradictory statements about the

nature of the prima facie showing requires close attention to the

facts of our prior cases.

Rodriguez addressed a petitioner's successive motion

under § 2254 for release from state custody. The petitioner argued

that the reasonable doubt instructions at his trial had violated

the due process clause under Cage v. Louisiana, 498 U.S. 39 (1990)

(per curiam), which held that a reasonable juror could interpret

the "moral certainty" language in some reasonable doubt

instructions "to allow a finding of guilt based on a degree of

proof below that required by the Due Process Clause." Id. at 41.

In Rodriguez, this court carefully analyzed whether Cage announced

a new rule of constitutional law, whether that rule had been made

retroactive to cases on collateral review by the Supreme Court,

and whether it was previously unavailable. See 139 F.3d at 273–

76. We concluded that the rule had not been made retroactive by

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the Supreme Court, and we therefore denied certification. Id. at

276. Perhaps due to this conclusion, we did not analyze in detail

whether the rule would have applied to the instruction given in

the petitioner's case. Instead, we simply noted that in Cage, the

Supreme Court held that "some moral certainty instructions 'allow

a finding of guilt based on a degree of proof below that required

by the Due Process Clause,'" Rodriguez, 139 F.3d at 273 (quoting

Cage, 498 U.S. at 41), and that at the petitioner's trial "the

jury instructions on reasonable doubt included several statements

that likened proof beyond a reasonable doubt to proof to a moral

certainty," id.

Evans-García addressed the § 2255 motions of two

petitioners, both of whom argued that they had been subject to a

mandatory sentence of life without the possibility of parole for

a crime committed while under the age of eighteen, in violation of

Miller v. Alabama, 567 U.S. 460 (2012). Evans-García, 744 F.3d at

236. The government conceded that Miller announced a new rule of

constitutional law that applied retroactively to cases on

collateral review and that was previously unavailable. Id. at

238. We accepted all three concessions, although we paused over

the concession about retroactivity. Id. at 238–40. We ultimately

declined to engage in a "full inquiry" at the certification stage,

"even on a purely legal issue such as retroactivity." Id. at 237.

We noted that

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 [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.

Id. at 237–38 (citation omitted). As to one of the petitioners,

whose sentencing guidelines range under the pre-Booker guidelines

was life imprisonment,4 we certified the petition based on the

government's three concessions. Id. at 236–37, 240. As to the

other petitioner, we denied certification because his guidelines

range was 292 to 365 months in prison, from which the district

court decided to depart upward to a life sentence. Id. at 240–

41. Accordingly, "he was not sentenced pursuant to any statute or

guideline that mandated a sentence of life without parole," id. at

240, so Miller did not apply to him based on the undisputed facts.

We held that "a circuit court should deny certification where it

is clear as a matter of law, and without the need to consider

contested evidence, that the petitioner's identified

constitutional rule does not apply to the petitioner's situation."

Id.

Rodriguez and Evans-García establish a consistent

approach for analyzing whether to certify a successive motion.

4In Evans-García, the government apparently made no argument
that the pre-Booker guidelines were not sufficiently mandatory for
the Miller rule to apply.

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The court of appeals should first consider whether, as a legal

matter, the petitioner's motion relies on a new rule of

constitutional law that has been made retroactive to cases on

collateral review by the Supreme Court and that was previously

unavailable. If it is clear that one of these questions must be

answered in the negative, as was the case in Rodriguez, the court

may deny certification on that ground. See 139 F.3d at 274–76.

But, if the question is close, as was the case in Evans-García,

the court may leave "even . . . a purely legal issue" for the

district court to resolve. See 744 F.3d at 237. The court of

appeals should then consider the mixed question of whether "the

petitioner's identified constitutional rule . . . appl[ies] to the

petitioner's situation." Id. at 240. If it is "clear as a matter

of law, and without the need to consider contested evidence" that

it does not, the court should deny the certification. Id.

Otherwise, the court should grant it.

B.

Having explained the focused yet tentative nature of the

examination called for in evaluating a request to file a second or

successive § 2255 motion, we turn next to Moore's motion. Distilled

to its essence, his request for relief under § 2255 strikes us as

quite straightforward. Moore contends first that Johnson II

announced a new rule of constitutional law, which Welch made

retroactive. That rule is this: The text of the residual clause,

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as employed in the ACCA, is too vague to provide, consistent with

due process, a standard by which courts must fix criminal

sentences. Moore then simply asks that this new rule be applied

directly to another law, the Sentencing Reform Act of 1984 (SRA),

Pub. L. No. 98–473, tit. II, ch. II, 98 Stat. 1837, 1987 (codified

as amended in scattered provisions of 18 U.S.C. and 28 U.S.C.

(2002)), which also used the text of the residual clause, as

employed in the ACCA,5 to provide a standard by which a court fixed

his sentence. So distilled, Moore's petition seems to manifest at

least a reasonable likelihood that it makes the prima facie showing

required for a second or successive motion.

The government balks at this conclusion because a

necessary link in Moore's argument on the merits of his motion is

establishing that the SRA "fixed" sentences.6 This proposition,

5The residual clause of the career offender guideline is
identical to the residual clause of ACCA. The only difference
between the larger subsections containing these residual clauses,
U.S.S.G. § 4B1.2(a)(2) (Nov. 1, 2001) and 18 U.S.C.
§ 924(e)(2)(B)(ii), is that the former lists "burglary of a
dwelling" as an enumerated offense whereas the latter lists just
"burglary." The two clauses have also been interpreted in the
same way. See, e.g., United States v. Ramírez, 708 F.3d 295, 305–
07 (1st Cir. 2013) (using the interpretation of the residual clause
described in Johnson II to apply the residual clause of the career
offender guideline); United States v. Giggey, 551 F.3d 27, 38–41
(1st Cir. 2008) (holding that the residual clause of the career
offender guideline should be interpreted in line with the residual
clause of the ACCA).
6 The government has not argued that we should deny
certification because Moore's prior offenses satisfy the force
clause of the "crime of violence" definition, as interpreted in

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the government argues, would be a new rule of constitutional law,

rather than a rule driven solely by the force of Johnson II as

precedent. Thus, the government continues, Moore's request for

certification must fail for several different reasons. First, one

of the new rules of constitutional law that Moore's motion relies

upon (as framed by the government) has not been made retroactive

by the Supreme Court either directly or by logical implication.

See Tyler v. Cain, 533 U.S. 656, 666–67 (2001). Second, on the

government's reading, § 2255(h)(2) requires that any new rule of

constitutional law be recognized by the Supreme Court, not a lower

court. Third, it is inappropriate to recognize a new rule in a

certification proceeding.

We are not sufficiently persuaded that we would need to

make new constitutional law in order to hold that the pre-Booker

SRA fixed sentences. Rather, it is likely that we would need only

interpret the pre-Booker SRA; i.e., a statute. Moreover, the

question of statutory interpretation we would likely need to

address is one that the Supreme Court essentially resolved in

Booker, when it ruled that the SRA contained "provisions that

ma[d]e the Guidelines binding on district judges." 543 U.S. at

233 (opinion of Stevens, J.); see id. at 234 (describing 18 U.S.C.

§ 3553(b) as "direct[ing] that the [sentencing] court 'shall impose

Tavares, 843 F.3d at 9–11, and, by analogy, in Faust, 853 F.3d at
49–51. Thus, we deem this argument waived.

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a sentence of the kind, and within the range' established by the

Guidelines"); id. at 245 (opinion of Breyer, J.) (excising

§ 3553(b) and § 3742(e) in order to "make[] the Guidelines

effectively advisory"); see also Dillon v. United States, 560 U.S.

817, 820 (2010) ("As enacted, the SRA made the Sentencing

Guidelines binding."); Kimbrough v. United States, 552 U.S. 85,

100–01 (2007) ("The Booker remedial opinion . . . sever[ed] and

excise[d] the provision of the [federal sentencing] statute that

rendered the Guidelines mandatory."). The Booker Court noted that

"[b]ecause they are binding on judges, we have consistently held

that the Guidelines have the force and effect of laws." 543 U.S.

at 234. In light of this precedent, and in light of the fact that

the lower end of a guidelines range sentence often exceeds what

would have otherwise been the statutory minimum, we find ourselves

quite skeptical concerning the government's reliance on recent

Eleventh Circuit precedent to contend that the mandatory

guidelines "did not alter the statutory boundaries for sentences

set by Congress for the crime." In re Griffin, 823 F.3d 1350,

1355 (11th Cir. 2016). Nor does the fact that the Eleventh Circuit

so concluded mean that a contrary conclusion would be a new rule

of constitutional law. Cf. Butler v. Curry, 528 F.3d 624, 637–38

(9th Cir. 2008) (holding that the mere fact that there were

dissents in Cunningham v. California, 549 U.S. 270 (2007), did not

mean that the case established a new rule of constitutional law

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because, inter alia, one of the dissents argued that the majority

misinterpreted the statutory sentencing scheme that it held

violated the constitution). In fact, it would not necessarily be

a new rule of constitutional law even if we did disagree on the

constitutional issue. See Beard v. Banks, 542 U.S. 406, 416 n.5

(2004) ("[W]e do not suggest that the mere existence of a dissent

suffices to show that the rule is new."); id. at 423 (Souter, J.,

dissenting) (noting that the majority acknowledges that the "'all

reasonable jurists' . . . standard is objective, so that the

presence of actual disagreement among jurists . . . does not

conclusively establish a rule's novelty"); Wright v. West, 505

U.S. 277, 304 (1992) (O'Connor, J., concurring in the judgment)

(similar).

It is true that neither the SRA nor Booker used in

relevant context the verb "fix." But nothing in Johnson II or

Beckles suggests that "fix" or "fixes" is a term of art, rather

than as a shorthand way of saying that a statutory test, rather

than judicial judgment or discretion, mandates the minimum and

maximum sentences. See Beckles, 137 S. Ct. at 894–95; Johnson II,

135 S. Ct. at 2557 (citing United States v. Batchelder, 442 U.S.

114, 123 (1979)). In short, we see no lack of reasonableness in

contending that a statute found to "bind[]" in Booker necessarily

"fix[es]" under Johnson II, especially if Moore is able to show

that the different contexts in which Booker and Johnson II reached

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their respective holdings (procedural trial rights versus due

process rights) is ultimately immaterial to the inquiry.

Framed in another way, the government's argument turns

on the degree of generality with which we define the rule adopted

in Johnson II. Does one describe the rule as being no more than

the technical holding that the residual clause as employed in the

ACCA is unconstitutionally vague? If so, then arguably only

successive § 2255 motions based on the ACCA's residual clause would

satisfy § 2255(h)(2). Or, does one describe the rule as being

that the text of the residual clause, as employed in the ACCA, is

too vague to provide a standard by which courts must fix sentences?

If so, then one might reasonably conclude that such a rule could

be relied upon directly to dictate the striking of any statute

that so employs the ACCA's residual clause to fix a criminal

sentence.

Both parties appear to agree that the rule is broader

than the technical holding of Johnson II; they just disagree about

exactly how far it extends. This agreement makes sense, given

that Congress in § 2255 used words such as "rule" and "right"

rather than "holding." Congress presumably used these broader

terms because it recognizes that the Supreme Court guides the lower

courts not just with technical holdings but with general rules

that are logically inherent in those holdings, thereby ensuring

less arbitrariness and more consistency in our law. Perhaps for

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this reason, the government agreed at oral argument that the rule

in Johnson II would apply to another statute ("ACCA, Jr.") that

mirrored the ACCA but was applied to different underlying crimes.

Although the residual clause in the pre-Booker guidelines is not

quite ACCA, Jr., on one reading of the relevant statutes, it is

not clearly different in any way that would call for anything

beyond a straightforward application of Johnson II. Indeed, if

one takes seriously, as we must, the Court's description of the

pre-Booker guidelines as "mandatory," one might describe the

residual clause of the pre-Booker guidelines as simply the ACCA's

residual clause with a broader reach, in that it fixed increased

minimum and maximum sentences for a broader range of underlying

crimes. These observations underline the critical point: Moore's

§ 2255 motion could succeed even on the government's understanding

of the rule created by Johnson II, if under the SRA the pre-Booker

guidelines fixed sentences.

For this reason, and for the purposes of deciding Moore's

application for leave to file a successive § 2255 motion, we are

not sufficiently convinced by the recent decisions of the Fourth

and Sixth Circuits concluding that first § 2255 motions that sought

to apply Johnson II to the pre-Booker guidelines were outside the

statute of limitations for such motions. See United States v.

Brown, No. 16-7056 , 2017 WL 3585073, at *3 (4th Cir. Aug. 21,

2017); Raybon v. United States, No. 16-2522, 2017 WL 3470389, at

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*1 (6th Cir. Aug. 14, 2017). Both courts concluded that the §

2255 motions under consideration had not been filed within one

year of "the date on which the right asserted was initially

recognized by the Supreme Court" and the right asserted had not

"been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review," 28 U.S.C. § 2255(f)(3),

even though the motions had been filed within one year of

Johnson II. See Brown, 2017 WL 3585073, at *5; Raybon, 2017 WL

3470389, at *3. The opinions reasoned that the right the movants

were asserting was not the right recognized in Johnson II because

the Supreme Court had only applied that right to the ACCA, and

because Beckles clarified that Johnson II did not apply to every

provision with the same wording as the ACCA's residual clause.

Brown, 2017 WL 3585073, at *4–5; Raybon, 2017 WL 3470389, at *2–

3. Justice Sotomayor's concurring opinion in Beckles, which stated

that the majority opinion "le[ft] open the question" whether

Johnson II applied to the pre-Booker guidelines, 137 S. Ct. at 903

n.4 (Sotomayor, J., concurring in the judgment), featured in both

Brown, 2017 WL 3585073, at *2, and Raybon, 2017 WL 3470389, at *2.

But Beckles did not limit Johnson II to its facts. Rather, one

can fairly and easily read Beckles as simply rejecting the

application of the rule of Johnson II to the advisory guidelines

because, as a matter of statutory interpretation, those guidelines

do not fix sentences. What Beckles left open, then, was a question

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of statutory interpretation concerning how mandatory the SRA made

the guidelines before Booker. On this framing, the right Moore

seeks to assert is exactly the right recognized by Johnson II.

Turning to what is reasonably viewed as the issue of

statutory interpretation at the heart of Moore's attempt to apply

the rule of Johnson II, the government points to the possibility

of departures under the pre-Booker guidelines, arguing that the

SRA did not fix even minimum sentences as much as the ACCA does.

Departures, however, were limited in scope, and sentencing courts

had little leeway in employing them. See, e.g., United States v.

Louis, 300 F.3d 78, 84 (1st Cir. 2002) (holding that the defendant

did not qualify for a family ties departure); United States v.

Vasquez, 279 F.3d 77, 82 (1st Cir. 2002) (holding that "a district

court may not depart downward on the basis that deportable status

ostensibly carried with it certain adverse collateral penal

consequences"); United States v. Snyder, 136 F.3d 65, 70 (1st Cir.

1998) (holding that disparity between state and federal sentences

could not justify a departure); United States v. Dethlefs, 123

F.3d 44, 49 (1st Cir. 1997) (holding that "multiple defendants

participating in the entry of guilty pleas, without quite a bit

more, cannot constitute the meaningful atypicality that is

required to warrant a departure"); United States v. Andrade, 94

F.3d 9, 14–15 (1st Cir. 1996) (holding that disparity between

sentences for crack and cocaine could not justify a departure);

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United States v. Jackson, 30 F.3d 199, 202–03 (1st Cir. 1994)

(holding that the district court's conclusion that a guidelines

sentence was excessive, given the defendant's age, could not

justify a departure); Reid v. United States, No. 03-CR-30031, No.

16-CV-30111, 2017 WL 2221188, at *4 n.2 (D. Mass. May 18, 2017)

(Ponsor, J.) (describing the guidelines prior to Booker as a

"rigidly imposed . . . straitjacket"). Indeed, the Supreme Court

addressed the significance of departures in Booker. The Court

acknowledged that one provision of the SRA

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."

543 U.S. at 234 (opinion of Stevens, J.) (quoting 18 U.S.C.

§ 3553(b)(1) (2000)). The Court concluded that § 3553(b)(1) did

not save the mandatory guidelines from unconstitutionality:

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 [Sixth Amendment] problem.
Importantly, however, departures are not
available in every case, and in fact are
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 is
bound to impose a sentence within the
Guidelines range.

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Id.; see also Pepper v. United States, 562 U.S. 476, 497–98 (2011)

(reiterating this reasoning).

There is no suggestion, moreover, that Moore qualified

for a departure at the time of his sentencing hearing. See Moore,

362 F.3d at 132–34 (describing how the district court denied the

government's motion for a downward departure based on substantial

assistance because Moore absconded before sentencing). Thus, it

may be appropriate for the district court to consider whether the

residual clause of the pre-Booker career offender guideline was

void for vagueness only as applied to Moore.

It is true that Beckles declared Johnson II

categorically inapplicable to the post-Booker advisory guidelines.

But that does not mean that the rule established by Johnson II

must always apply to a particular provision in every case or not

at all. Beckles held that a feature shared by all the post-Booker

guidelines--namely, that they are advisory--rendered them

categorically exempt from vagueness challenges. If there is truly

a difference in how mandatory the pre-Booker guidelines were from

case to case, then it may well be necessary to invalidate the

residual clause for those defendants for whom the guidelines fixed

sentences but not for others.

We leave it to the district court to decide in the first

instance if it is appropriate to consider Moore's vagueness

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challenge as applied or categorically and, in either event, whether

the pre-Booker guidelines fixed Moore's sentencing range in the

relevant sense that the ACCA fixed sentences.

C.

The government argues, in the alternative, that this

court may deny certification for a successive § 2255 motion on the

ground of procedural default. We disagree.

The government has not cited a single case in which a

court denied certification of a successive § 2255 motion on the

grounds of procedural default. Instead, it has cited two cases

from other circuits holding that a court of appeals may deny

authorization where the motion is untimely. See In re Vassell,

751 F.3d 267, 270–72 (4th Cir. 2014); In re Campbell, 750 F.3d

523, 532 (5th Cir. 2014) (requiring that the motion be clearly

untimely). But see In re McDonald, 514 F.3d 539, 543 (6th Cir.

2008) (adopting the opposite rule).

Whether the Fourth and Fifth Circuits are right on this

point or not, the inquiry required for determining whether a claim

is timely--i.e., comparing the date of the motion and the date of

the Supreme Court opinion it seeks to apply--is nowhere near as

complex as the cause and prejudice inquiry required for assessing

procedural default. To require this court to assess procedural

default in this gatekeeping proceeding would create even more

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tension with Congress's instruction that proceedings of this type

be decided quickly.

D.

We have left much work for the district court. That is

by necessity, as the district court is required to redo the very

analysis performed in this opinion before entertaining a

successive § 2255 motion. See 28 U.S.C. § 2244(b)(4). The

district court may also have to grapple with an issue that neither

party raised before us: what to do when the transcripts of the

sentencing hearing do not reveal whether the defendant's past

convictions were deemed crimes of violence under the force clause

or under the residual clause. Several courts have recently

concluded that defendants in such cases are entitled to

resentencing as long as the enhancement may have been due to the

residual clause. See, e.g., United States v. Winston, 850 F.3d

677, 682 (4th Cir. 2017); cf. In re Chance, 831 F.3d 1335, 1340

(11th Cir. 2016) (arguing that dicta in an earlier Eleventh Circuit

case was "wrong" where it suggested that a movant arguing that

Johnson II invalidates the residual clause of 18 U.S.C. § 924(c)

must "prove whether or not [he] was sentenced under the residual

clause" (citation omitted)). We leave it to the district court to

grapple with this issue in the first instance.

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 III.

For the foregoing reasons, we certify that Moore's

successive motion satisfies 28 U.S.C. § 2255(h)(2).

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