United States v. Antonio Blackstone

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-55023
Plaintiff-Appellee,
D.C. Nos.
v. 2:16-cv-03872-CAS
2:99-cr-00257-CAS-4
ANTONIO DEAN BLACKSTONE,
AKA Lil Sule,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding

Argued and Submitted April 11, 2018
Pasadena, California

Filed September 12, 2018

Before: Mary M. Schroeder, Richard R. Clifton,
and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Clifton
2 UNITED STATES V. BLACKSTONE

SUMMARY*

28 U.S.C. § 2255

The panel affirmed the district court’s denial of Antonio
Dean Blackstone’s motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence, which was imposed
in 2000 under the then-mandatory Sentencing Guidelines,
based in part on the court’s conclusion that he had previously
been convicted of crimes of violence.

Blackstone argued that his sentence must be vacated
because, after Johnson v. United States, 135 S. Ct. 2551
(2015), the relevant Sentencing Guidelines provision,
U.S.S.G. § 4B1.2, is unconstitutionally vague and, as a result,
his prior California convictions are no longer treated as
crimes of violence.

The panel held that Blackstone’s § 2255 motion is
untimely under 28 U.S.C. § 2255(f)(3), which authorizes
filing within one year of “the date on which the right asserted
was initially recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” The
panel held that the Supreme Court has left open the question
of Johnson’s application to the mandatory Guidelines, and
thus has not yet recognized the right Blackstone asserts. The
panel wrote that if the Supreme Court extends Johnson to a
sentence imposed at a time when the Sentencing Guidelines
were mandatory, then Blackstone may be able to bring a
timely § 2255 motion, but as of now, his motion is untimely.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. BLACKSTONE 3

The panel applied the same reasoning to Blackstone’s
uncertified argument that Hobbs Act robbery is not a “crime
of violence” for purposes of 18 U.S.C. § 924(c), writing that
the Supreme Court has not recognized that § 924(c)’s residual
clause is void for vagueness. The panel did not reach the
merits. Noting that the Seventh Circuit would conclude that
a § 2255 motion based on Johnson would be timely – a
conclusion with which the panel disagrees but does not
consider unreasonable – the panel granted Blackstone’s
request to expand the certificate of appealability to include
the § 924(c) issue, but denied the challenge as untimely.

COUNSEL

Alyssa Bell (argued), Deputy Federal Public Defender; Hilary
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for Defendant-
Appellant.

L. Ashley Aull (argued); Bryan Y. Yang, Assistant United
States Attorney; Lawrence S. Middleton, Chief, Criminal
Division; Sandra R. Brown, United States Attorney; United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
4 UNITED STATES V. BLACKSTONE

OPINION

CLIFTON, Circuit Judge:

Antonio Dean Blackstone appeals the district court’s
denial of his motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, the version of habeas
corpus review that applies to federal sentences. In May 2000,
Blackstone was sentenced to 290 months of incarceration
under the then-mandatory Sentencing Guidelines, based in
part on the court’s conclusion that he had previously been
convicted of crimes of violence. Blackstone argues that his
sentence must be vacated because, after Johnson v. United
States, 135 S. Ct. 2551 (2015), the relevant Sentencing
Guideline provision, U.S.S.G. § 4B1.2, is unconstitutionally
vague and, as a result, his prior California convictions are no
longer treated as crimes of violence under the federal
sentencing laws.

Normally, a § 2255 motion must be filed within a year of
the date the conviction became final, a period that expired
years ago for Blackstone. See 28 U.S.C. § 2255(f)(1). The
statute also authorizes filing within one year of “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). Blackstone argues that
the Supreme Court recognized a new right in Johnson, a right
that was made retroactively applicable in Welch v. United
States, 136 S. Ct. 1257 (2016). We conclude, however, that
the Supreme Court has not yet recognized the right asserted
by Blackstone. The Supreme Court has not held that the
mandatory Sentencing Guidelines are subject to this
vagueness challenge. As a result, Blackstone’s current
 UNITED STATES V. BLACKSTONE 5

motion is not timely under the statute. In reaching that
conclusion, we agree with similar rulings by three other
circuit courts that have considered this issue. We deny a
similar challenge by Blackstone to a conviction and sentence
under 18 U.S.C. § 924(c) for use of a firearm during a crime
of violence because the Supreme Court has not recognized
that right, either. We affirm the denial of Blackstone’s
motion.

I. Background

On August 19, 1999, a jury found Antonio Dean
Blackstone guilty of multiple offenses: conspiring to commit
Hobbs Act robbery in violation of 18 U.S.C. § 1951;
committing Hobbs Act robbery; and using and carrying a
firearm during a “crime of violence,” in violation of
18 U.S.C. § 924(c). On May 8, 2000, the district court
sentenced Blackstone to a total of 290 months of
incarceration. That total consisted of two parts: 230 months
for the two Hobbs Act convictions (specifically, two
sentences each of 230 months to be served concurrently), and
sixty months for the 18 U.S.C. § 924(c) conviction, to be
served consecutively to the Hobbs Act sentences. When
Blackstone was sentenced, the Sentencing Guidelines were
mandatory, not advisory. See United States v. Booker,
543 U.S. 220, 245 (2005) (holding that prior mandatory
application of the Sentencing Guidelines had violated the
Sixth Amendment and that the Guidelines were “effectively
advisory” going forward).

In calculating the sentence, the district court concluded
that Blackstone qualified as a career offender under U.S.S.G.
§ 4B1.1, also known as the career offender Guideline,
because he had previously been convicted of two prior felony
6 UNITED STATES V. BLACKSTONE

crimes of violence: second-degree robbery, in violation of
California Penal Code § 211; and voluntary manslaughter, in
violation of California Penal Code § 192(a). As a result,
Blackstone’s Guideline range for the two Hobbs Act
convictions increased from 70 to 87 months to 210 to
240 months. The district court imposed a sentence of
230 months for those counts. The firearms conviction carried
a mandatory consecutive sentence of 60 months, 18 U.S.C.
§ 924(c)(1), bringing the total to 290 months.

Blackstone appealed his sentence, but this court affirmed.
United States v. Gaines, 8 F. App’x 635 (9th Cir. 2001).
Blackstone’s petition for a writ of certiorari was denied.
Blackstone v. United States, 534 U.S. 910 (2001). Thereafter,
Blackstone filed a 28 U.S.C. § 2255 motion and a 28 U.S.C.
§ 2241 petition, both of which were denied and neither of
which raised the issues presented in this appeal.

Within one year after the Supreme Court issued its
opinion in Johnson, Blackstone filed an application with this
court for authorization to file a second or successive motion
to vacate under § 2255. That application was granted, and
Blackstone filed his motion to vacate with the district court.

Blackstone’s motion presented two primary arguments.
For one, he argued that Johnson also applies to the mandatory
Sentencing Guidelines, in particular to the residual clause of
the definition of “crime of violence” within the career
offender enhancement provision, U.S.S.G. § 4B1.2. Because
his prior California convictions only qualified as crimes of
violence based on the residual clause, he contended, his
sentence for the Hobbs Act robbery convictions should be
vacated and a new sentence imposed. In addition, he argued
that the residual clause in 18 U.S.C. § 924(c) is void for
 UNITED STATES V. BLACKSTONE 7

vagueness following Johnson, so his conviction and
consecutive sentence for use of a firearm in connection with
a crime of violence should be vacated.

The district court concluded that Blackstone’s motion was
timely because Johnson applied retroactively on collateral
review to the Sentencing Guidelines and to the firearms
statute, 18 U.S.C. § 924(c). But the district court denied
Blackstone’s motion on the merits. It held that, even after
Johnson, Blackstone’s prior California convictions for
robbery and voluntary manslaughter are still crimes of
violence under U.S.S.G. § 4B1.2. The district court granted
a certificate of appealability on that issue. The district court
held that Blackstone’s current Hobbs Act robbery convictions
are for crimes of violence under 18 U.S.C. § 924(c) and did
not grant a certificate of appealability for that issue.

II. The Timeliness of the Motion

We review the denial of Blackstone’s motion de novo.
See United States v. Geozos, 870 F.3d 890, 894 (9th Cir.
2017). We will take up Blackstone’s two challenges
separately.

A. The Hobbs Act Robbery Sentences

In addition to disputing Blackstone’s arguments on the
merits, the Government continues to argue that Blackstone’s
§ 2255 motion is untimely. It contends that the Supreme
Court’s decisions in Johnson and Welch have not authorized
a motion by Blackstone at this point because those decisions
pertained to the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(2)(B), and that neither addressed whether
8 UNITED STATES V. BLACKSTONE

Johnson applies to other clauses providing for enhanced
sentences based on convictions for crimes of violence.

Under the statute of limitations applicable to a § 2255
motion challenging a federal conviction and sentence,
28 U.S.C. § 2255(f), a defendant has one year to file such a
motion, measured from the latest of four possible dates. Two
of those dates are relevant here. One is “the date on which
the judgment of conviction becomes final.” Id. § 2255(f)(1).
That was in 2001 for Blackstone, so the current motion is too
late under that measure. The other is “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). In other words, a right newly
recognized by the Supreme Court may open the door to filing
a § 2255 motion later in time. The question presented in this
case is whether Johnson and Welch have opened that door.
We conclude that they have not.

1. Johnson and Subsequent Supreme Court
Decisions

In Johnson, the Supreme Court held that part of the
definition of “violent felony” in the ACCA is void for
vagueness. 135 S. Ct. at 2557. The ACCA provided for a
sentencing enhancement if a defendant had three previous
convictions “for a violent felony or a serious drug offense, or
both.” 18 U.S.C. § 924(e)(1). The statute defined “violent
 UNITED STATES V. BLACKSTONE 9

felony” in multiple ways.1 The problem identified in Johnson
concerned the last portion of the definition, commonly
referred to as the “residual clause”: “or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” Id. § 924(e)(2)(B)(ii).

The Supreme Court held that the ACCA’s residual clause
is unconstitutionally vague because it left “grave uncertainty”
about both “how to estimate the risk posed by a crime” and
“how much risk it takes for a crime to qualify as a violent
felony.” Johnson, 135 S. Ct. at 2557–58; see also id. at 2556
(“Our cases establish that the Government violates [the Fifth
Amendment] by taking away someone’s life, liberty, or
property under a criminal law so vague that it fails to give
ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement.”). Johnson
did not invalidate the other portions of the definition. In
Welch, the Court held that Johnson could be applied
retroactively to cases on collateral review. 136 S. Ct. at 1265.

1
“Violent felony” is defined in 18 U.S.C. § 924(e)(2)(B) as follows:

(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such
term if committed by an adult, 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[.]
10 UNITED STATES V. BLACKSTONE

The Supreme Court has considered the application of its
Johnson holding in other contexts. Last year it held that
Johnson does not apply to sentences imposed under the
advisory Sentencing Guidelines. Beckles v. United States,
137 S. Ct. 886, 890 (2017). The Court concluded that,
because the Guidelines “merely guide the exercise of a
court’s discretion in choosing an appropriate sentence within
the statutory range,” they are not subject to vagueness
challenges. Id. at 892.

Earlier this year, in Sessions v. Dimaya, 138 S. Ct. 1204
(2018), the Supreme Court considered whether the reasoning
of Johnson applies to the Immigration and Nationality Act
(INA), which defines the term “crime of violence” by
reference to 18 U.S.C. § 16 and in a manner similar to the
ACCA. 138 S. Ct. at 1210–11. Affirming a decision by this
court, Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the
Court concluded that 18 U.S.C. § 16(b) is unconstitutionally
vague because it creates “more unpredictability and
arbitrariness than the Due Process Clause tolerates.” Dimaya,
138 S. Ct. at 1216 (internal quotation marks omitted).

2. Timeliness of Blackstone’s Motion

Blackstone argues that Johnson announced a new rule that
is retroactive on collateral review, and that he therefore filed
a timely motion.2 Although they may suggest what the

2
In his Reply Brief, Blackstone argues that the Government waived
its timeliness argument by not raising it with the district court. The
Government has consistently argued that Blackstone’s motion is time-
barred. The Government’s contention that Johnson did not announce a
new rule that applies to the instant case is an “alternative argument to
support what has been [its] consistent claim from the beginning.” See
United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004).
 UNITED STATES V. BLACKSTONE 11

answer might be, the Supreme Court’s recent cases did not
recognize the right needed to make Blackstone’s motion
timely.

Neither Johnson nor Welch mentioned the mandatory or
advisory Sentencing Guidelines. When the Court did
consider the application of the Johnson rule to the Sentencing
Guidelines, it held that the rule did not apply to sentences
imposed while the Guidelines were advisory. That may
permit an inference that the Court might reach a different
result regarding a sentence imposed while the Guidelines
were mandatory, such as Blackstone’s, but that inference has
not been recognized by the Court. To the contrary, a
concurring opinion in Beckles explicitly described that
question as an issue that remains open. See Beckles, 137 S.
Ct. at 903 n.4 (Sotomayor, J., concurring in the judgment)
(“The Court’s adherence to the formalistic distinction
between mandatory and advisory rules at least leaves open
the question whether defendants sentenced to terms of
imprisonment before [Booker] . . . may mount vagueness
attacks on their sentences. That question is not presented by
this case and I, like the majority, take no position on its
appropriate resolution.” (citations omitted)). The Beckles
majority expressed no disagreement with that view.

“As the Supreme Court has made clear, it is claims that are deemed
waived or forfeited, not arguments.” Id. That the Government’s argument
to us might have been expressed differently, based in large part on
subsequent caselaw, does not alter the fact that the Government has
argued throughout that Blackstone’s motion is untimely. In the cases that
Blackstone cites, a party failed to raise a statute of limitations defense or
conceded timeliness. See, e.g., Wood v. Milyard, 566 U.S. 463, 473
(2012) (“[W]e decline to adopt an absolute rule barring a court of appeals
from raising, on its own motion, a forfeited timeliness defense.”). That is
not true here.
12 UNITED STATES V. BLACKSTONE

The statute of limitations at issue here was part of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Pub. L. No. 104-132, § 105, 110 Stat. 1214
(1996). The Supreme Court has repeatedly admonished our
court not to advance on its own in determining what rights
have been recognized by the Supreme Court under AEDPA.
See, e.g., Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per curiam)
(“We have before cautioned the lower courts—and the Ninth
Circuit in particular—against framing our precedents at such
a high level of generality.” (internal quotation marks
omitted)); Nevada v. Jackson, 569 U.S. 505, 512 (2013) (“By
framing our precedents at such a high level of generality, a
lower federal court could transform even the most
imaginative extension of existing case law into ‘clearly
established Federal law, as determined by the Supreme
Court.’” (quoting 28 U.S.C. § 2254(d)(1))). We are regularly
called upon to apply and extend Supreme Court holdings to
different contexts, of course, but AEDPA expressly limits our
ability to do that here.

It is not always obvious whether and how the Supreme
Court will extend its holdings to different contexts. Our court
had previously inferred that the logic of Johnson would
extend to the Sentencing Guidelines and so held in United
States v. Hernandez-Lara, 817 F.3d 651 (9th Cir. 2016) (per
curiam), but the Supreme Court disagreed in Beckles and
subsequently vacated our decision, 138 S. Ct. 1976 (2018)
(mem.). In Dimaya, the Court affirmed our court’s
application of Johnson to the residual clause in 18 U.S.C.
§ 16(b), but it took a lengthy discussion to reach that
conclusion, and four justices disagreed. In those cases, our
court was not limited by AEDPA from reaching the issue of
how far to extend Johnson, but in this case we are. We
conclude that Blackstone’s motion is not timely because the
 UNITED STATES V. BLACKSTONE 13

Supreme Court has not yet recognized the right that
Blackstone seeks to assert.

Three other circuits have agreed with our conclusion. The
Sixth Circuit explained that Beckles concerned only
Johnson’s application to the advisory Sentencing Guidelines,
and that its application to the mandatory Guidelines “is an
open question.” Raybon v. United States, 867 F.3d 625, 629
(6th Cir. 2017), cert. denied, 138 S. Ct. 2661 (2018) (mem.).
“Because it is an open question, it is not a ‘right’ that ‘has
been newly recognized by the Supreme Court’ let alone one
that was ‘made retroactively applicable to cases on collateral
review.’” Id. at 630 (quoting 28 U.S.C. § 2255(f)(3)).

The Fourth Circuit took a similar approach, concluding
that, “if the existence of a right remains an open question as
a matter of Supreme Court precedent, then the Supreme Court
has not ‘recognized’ that right.” United States v. Brown,
868 F.3d 297, 301 (4th Cir. 2017), petition for cert. filed
(U.S. June 8, 2018) (No. 17-9276).

Most recently, the Tenth Circuit opined that “it is
apparent that [the movant] has not raised a true Johnson claim
because he was not sentenced under any clause of the
ACCA.” United States v. Greer, 881 F.3d 1241, 1248 (10th
Cir. 2018), petition for cert. filed (U.S. May 4, 2018) (No. 17-
8775). The Tenth Circuit reasoned that to entertain an
argument that has not been directly recognized by the
Supreme Court “would undermine Congress’s intent in
passing AEDPA and the interests of comity and finality
underlying federal habeas review.” Id. (internal quotation
marks omitted).
14 UNITED STATES V. BLACKSTONE

Only one circuit that has considered this matter has held
differently. In Cross v. United States, the Seventh Circuit
rejected the reasoning of the Fourth and Sixth Circuits (it did
not consider the Tenth Circuit’s holding in Greer) and held
instead that their approach “improperly reads a merits
analysis into the limitations period.” 892 F.3d 288, 293 (7th
Cir. 2018). According to the Seventh Circuit, 28 U.S.C.
§ 2255(f)(3) “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 Supreme Court has
recently recognized.” Id. at 294. Cross states that this is the
only way to construe the statute without reading “asserted”
out of it. Id.; see also 28 U.S.C. § 2255(f)(3).

We disagree with the interpretation of the Seventh
Circuit. The right that a movant asserts must be “initially
recognized by the Supreme Court.” See 28 U.S.C.
§ 2255(f)(3). The Seventh Circuit explained that, “[u]nder
Johnson, a person has a right not to have his sentence dictated
by the unconstitutionally vague language of the mandatory
residual clause.” 892 F.3d at 294. But Johnson did not
recognize a right expressed in such broad terms, and in
concluding otherwise the Seventh Circuit failed to consider
the intent and purpose of AEDPA. Particularly in light of the
statement in Justice Sotomayor’s concurring opinion in
Beckles that the question remains open before the Court, it is
not for us to declare anything to the contrary.3

3
Blackstone argues that, in Moore v. United States, 871 F.3d 72 (1st
Cir. 2017), the First Circuit also held that Johnson announced a new rule
that applies retroactively on collateral review to the mandatory career
offender Guideline. The Seventh Circuit in Cross also cited Moore to that
effect. See Cross, 892 F.3d at 293. But Moore considered only the
certification required before a second or successive motion can be filed in
district court pursuant to 28 U.S.C. § 2255(h)(2). 871 F.3d at 74. The
 UNITED STATES V. BLACKSTONE 15

In sum, Johnson did not recognize a new right applicable
to the mandatory Sentencing Guidelines on collateral review.
If the Court extends Johnson to a sentence imposed at a time
when the Sentencing Guidelines were mandatory, then
Blackstone may be able to bring a timely motion under
§ 2255. As of now, however, Blackstone’s motion is
untimely.

B. The Firearms Conviction Under 18 U.S.C. § 924(c)

Before the district court, Blackstone argued that he is
actually innocent of his 18 U.S.C. § 924(c) conviction for
using a firearm during a crime of violence because, after
Johnson, Hobbs Act robbery is not a “crime of violence”
under that statute. 18 U.S.C. § 924(c)(1)(A). That statute
requires the imposition of an additional consecutive sentence
on a defendant convicted of a “crime of violence” while using
or carrying a firearm. “Crime of violence” is defined in two
ways, the latter of which is commonly referred to as the
“residual clause”: “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

Supreme Court has explained considering such an application does not
require “the courts of appeals . . . to engage in [a] difficult legal analysis,”
so it is not clear to us that the First Circuit has reached a definitive
conclusion on the question. See Tyler v. Cain, 533 U.S. 656, 664 (2001).
The fact that our court previously granted Blackstone permission to file a
second or successive motion does not preclude our consideration of the
issue on the merits. To the extent that Moore did state a conclusion by the
First Circuit, we disagree for the reasons already stated.
16 UNITED STATES V. BLACKSTONE

offense.”4 Id. § 924(c)(3); see also United States v. Watson,
881 F.3d 782, 784 (9th Cir. 2018) (per curiam), petition for
cert. filed (U.S. June 28, 2018) (No. 18-5022). Blackstone’s
sentence was increased by an additional sixty months as a
result of its application. As noted above, the district court
rejected Blackstone’s argument on the merits, and it did not
grant a certificate of appealability on that issue.

Blackstone has raised this issue in his opening brief to this
court, as permitted under our rules. See 9th Cir. R. 22-1(e).
We treat Blackstone’s discussion of an uncertified issue as a
request to expand the certificate of appealability issued by the
district court. Solis v. Garcia, 219 F.3d 922, 926 (9th Cir.
2000). We may only consider the issue “if the applicant
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).

We held above that Johnson did not announce a new rule
that is applicable to the mandatory Sentencing Guidelines.
The same reasoning applies to Blackstone’s uncertified
argument that Hobbs Act robbery is not a “crime of violence”
for purposes of 18 U.S.C. § 924(c). The Supreme Court has
not recognized that § 924(c)’s residual clause is void for
vagueness in violation of the Fifth Amendment. Blackstone’s
uncertified challenge is time-barred.

4
“Crime of violence” is defined in 18 U.S.C. § 924(c)(3) as follows:

(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or

(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.
 UNITED STATES V. BLACKSTONE 17

What that means for the request to expand the certificate
of appealability to reach the § 924(c) issue presents an
interesting quandary. The district court denied the certificate
based on its evaluation of the merits of the argument,
concluding that there was not a colorable argument that
Hobbs Act robbery did not constitute a crime of violence.
We have not reached the merits, rejecting Blackstone’s
application based on our conclusion that his application is
untimely at this point. “Where a plain procedural bar is
present . . . a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “In such a
circumstance, no appeal would be warranted.” Id. But it
appears that the Seventh Circuit would conclude that an
application would be timely based on Johnson. See Cross,
892 F.3d at 294.

Although we disagree, we would not describe that court’s
conclusion as unreasonable. Because we have not reached
the merits, we are not in a position to deny the application on
the basis relied upon by the district court, even though it
might well be correct that there is not a question debatable
among reasonable jurists as to whether Hobbs Act robbery is
a crime of violence under § 924(c). To err on the side of
caution, we grant Blackstone’s request for a certificate of
appealability on this issue, but deny that challenge as
untimely.

III. Conclusion

The district court’s denial of Blackstone’s § 2255 motion
is affirmed. The Supreme Court may hold in the future that
Johnson extends to sentences imposed when the Sentencing
18 UNITED STATES V. BLACKSTONE

Guidelines were mandatory or pursuant to 18 U.S.C.
§ 924(c), but until then Blackstone’s motion is untimely.

AFFIRMED.