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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13913
Non-Argument Calendar
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D.C. Docket Nos. 9:16-cv-81110-DTKH, 9:05-cr-80193-DTKH-1
ROBERTO DELGADO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 5, 2018)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Roberto Delgado, a federal prisoner represented by counsel, appeals the
district court’s dismissal of his second 28 U.S.C. § 2255 motion to vacate, set
aside, or correct sentence for lack of jurisdiction. On appeal, Delgado argues that
his sentence, which was enhanced under the career offender guideline in U.S.S.G.
§ 4B1.1, was unlawful following the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015).
We review de novo the district court’s dismissal of a § 2255 motion as
second or successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir.
2002). A federal prisoner who wishes to file a second or successive motion to
vacate, set aside, or correct sentence is required to move the court of appeals for an
order authorizing the district court to consider such a motion. See 28 U.S.C.
§ 2255(h). Without such authorization, the district court lacks jurisdiction to
consider a second or successive § 2255 motion to vacate. United States v. Holt,
417 F.3d 1172, 1175 (11th Cir. 2005).
Under the 2005 version of the Sentencing Guidelines, a defendant was a
career offender subject to an enhanced sentence where the instant offense was a
felony that was either a crime of violence or a controlled substance offense and the
defendant had at least two prior felony convictions of either a crime of violence or
a controlled substance offense. U.S.S.G. § 4B1.1(a). The Sentencing Guidelines
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defined “crime of violence” as any offense under federal or state law, punishable
by 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
Id. § 4B1.2(a) (emphasis added). The first clause was referred to as the “elements”
clause, the beginning of the second clause as the “enumerated crimes” clause, and
the latter portion as the “residual” clause. Although Johnson involved an Armed
Career Criminal Act (“ACCA”) challenge, not a guideline career offender dispute,
the Sentencing Commission amended this guideline effective August 2016 to strike
the “residual clause.” Id. § 4B1.2(a)(2), Amendment 798.
On June 26, 2015, the Supreme Court held in Johnson that the “residual”
clause of the ACCA was unconstitutionally vague. Johnson, 135 S. Ct. at 2563.
Later, the Supreme Court held that Johnson was retroactively applicable to cases
on collateral review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016).
Further, the Supreme Court held in Beckles v. United States, 137 S. Ct. 886 (2017)
that the advisory Sentencing Guidelines were not subject to a vagueness challenge
under the Due Process Clause, and that the “residual” clause formerly in the career
offender guideline, U.S.S.G. § 4B1.2(a), was not void for vagueness. Id. at 895.
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Here, Delgado’s sentence was enhanced under the career offender guideline,
not under the ACCA. Moreover, he did not raise any of his claims in an authorized
second or successive § 2255 motion, and thus, the district court properly dismissed
his second § 2255 motion for lack of jurisdiction. McIver, 307 F.3d at 1329. As
this was Delgado’s second § 2255 motion, he was required to receive our
authorization to file it. See 28 U.S.C. § 2255(h). However, we denied his
application to file the successive § 2255 motion in 2016. As such, under §
2255(h), the district court lacked jurisdiction to review the present motion.
Moreover, to the extent that Delgado argues that his total sentence is
unlawful after Johnson because the “residual” clause in the former version of
U.S.S.G. § 4B1.2(a)—which was identical to the ACCA’s residual clause—is void
for vagueness, his argument is without merit. As the Supreme Court found in
Beckles, the advisory Guidelines are not subject to void-for-vagueness challenges,
and the holding in Johnson did not extend to the “residual” clause formerly in
U.S.S.G. § 4B1.2(a). Beckles, 137 S. Ct. at 895. Accordingly, as Delgado did not
have authorization to file his second § 2255 motion, the district court properly
dismissed it for lack of jurisdiction, and we affirm.
AFFIRMED.
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