United States v. Pullen

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 29, 2019

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 17-3194
v.

BOBBY G. PULLEN,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the District of Kansas
(D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)
_________________________________

Daniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody
Brannon, Federal Public Defender, and Kirk Redmond, First Assistant Federal Public
Defender), Kansas City, Kansas, for Defendant - Appellant.

Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, former United States
Attorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant
United States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff - Appellee.
_________________________________

Before McHUGH, MORITZ, and EID, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

The district court sentenced Bobby G. Pullen as a career offender pursuant to

United States Sentencing Guidelines Manual (“USSG”) § 4B1.1 at a time when the
Sentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v.

United States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C.

§ 924(e)(2)(B)(ii) is unconstitutionally vague. As the residual clause of § 924(e)(2)(B)(ii)

is identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision

for USSG § 4B1.1), Mr. Pullen, relying on Johnson, moved for authorization to file a

second or successive 28 U.S.C. § 2255 motion. This court determined Mr. Pullen made a

prima facie showing that Johnson created a retroactive, new rule of constitutional law

applicable to the mandatory Guidelines. The district court, however, concluded Johnson

did not actually create a new rule applicable to the mandatory Guidelines and dismissed

Mr. Pullen’s § 2255 motion pursuant to 28 U.S.C. § 2255(h)(2), a provision governing

authorization to file a second or successive § 2255 motion. The district court did,

however, grant Mr. Pullen a certificate of appealability (“COA”).

On appeal, Mr. Pullen argues the district court procedurally erred when it relied on

§ 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when

it determined Johnson did not create a new rule applicable to the mandatory Guidelines.

As to Mr. Pullen’s procedural challenge, our recent decision in United States v. Murphy,

887 F.3d 1064 (10th Cir.), cert. denied, 2018 WL 3462559 (Oct. 29, 2018), forecloses his

argument. With respect to Mr. Pullen’s substantive challenge, the Supreme Court has

never recognized a void for vagueness challenge to the Guidelines and so Johnson neither

creates a new rule applicable to the Guidelines nor dictates that any provision of the

2
Guidelines is subject to a void for vagueness challenge. Accordingly, we affirm the

district court’s judgment.

I. BACKGROUND

In 1999, a jury convicted Mr. Pullen of one count of possession with intent to

distribute 100 kilograms or more of marihuana, or aiding and abetting the same, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2. At sentencing, the district

court established a total offense level of thirty-four and a criminal history category of VI.

The offense level and criminal history category resulted from application of the career

offender provision of USSG § 4B1.1 (1998). Application of the career offender provision

rested in part on a prior Missouri conviction for escape. Under the offense level and

criminal history category compelled by the career offender provision, the presentence

investigation report set Mr. Pullen’s Guidelines range at 262 to 327 months’

imprisonment. The district court sentenced Mr. Pullen to 262 months’ imprisonment.

Absent designation as a career offender, Mr. Pullen’s Guidelines range would have been

92 to 115 months’ imprisonment.

In 2006, Mr. Pullen filed his first motion under 28 U.S.C. § 2255, which the

district court dismissed as untimely. United States v. Pullen, No. 98–40080–JAR,

2006 WL 1133232, at *1 (D. Kan. Apr. 21, 2006). In 2015, the Supreme Court

decided Johnson, relying on the void for vagueness doctrine to invalidate the residual

clause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. This residual clause is

part of the Armed Career Criminal Act (“ACCA”), which enhances the statutory

mandatory minimum for certain defendants who have three or more previous

3
convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).

Section 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is

burglary, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.”

(emphasis added). The clause emphasized above is the residual clause invalidated in

Johnson. Importantly, the residual clause of § 924(e)(2)(B)(ii) is identical to the

residual clause in USSG § 4B1.2, which defined “crime of violence” for purposes of

the career offender guideline as an offense that “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.” USSG 4B1.2(a)(2) (emphasis

added).

Within one year of the decision in Johnson, Mr. Pullen, relying on 28 U.S.C.

§ 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable

to the mandatory Guidelines, filed a motion in this court for authorization to file a

second or successive § 2255 motion. We granted the motion for authorization and

Mr. Pullen filed his § 2255 motion in district court. The Government filed a response

in which it conceded Mr. Pullen’s Missouri escape conviction qualified as a “crime

of violence” only under the residual clause of USSG § 4B1.2(a)(2) but argued, in

part, that (1) Johnson did not create a new rule applicable to the mandatory

Guidelines; (2) a rule allowing void for vagueness challenges to the Guidelines

would be a new rule that the Supreme Court had not yet recognized; and (3) Mr.

Pullen’s motion was, therefore, untimely for purposes of 28 U.S.C. § 2255(f).

4
 The district court focused its analysis on § 2255(h)(2)’s requirement that Mr.

Pullen’s motion be based on “a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The

district court concluded Mr. Pullen’s motion was untimely and did not satisfy

§ 2255(h)(2) because relief was premised on the void for vagueness doctrine applying to

the Guidelines but neither Johnson nor any other Supreme Court case has recognized a

void for vagueness challenge to the Guidelines. Thus, the district court, relying on

§ 2255(h)(2), dismissed Mr. Pullen’s motion.

The district court, however, granted Mr. Pullen a COA. In pertinent part, the COA

reads: “Here, the Court concludes that reasonable jurists could debate whether the Court

was correct in its ruling. The Court thus grants a COA on the issue of whether Mr.

Pullen’s motion falls within the scope of 28 U.S.C. § 2255(h)(2).” ROA at 187. In his

opening brief, Mr. Pullen focuses on the § 2255(h)(2) nature of the dismissal, arguing this

provision is directed at the circuit court’s authority to grant a prisoner authorization to file

a second or successive § 2255 motion and, once a circuit court grants authorization, the

district court may not dismiss the motion pursuant to § 2255(h)(2).1 In its response brief,

the Government argues a grant of authorization by a circuit court only preliminarily

certifies that the movant satisfied the preconditions for a second or successive § 2255

1
Mr. Pullen moved for leave to file a pro se opening brief. Because Mr. Pullen
is represented by counsel, we deny his motion. See United States v. McDermott, 64
F.3d 1448, 1450 n.1 (10th Cir. 1995) (declining to consider issues raised in pro se
brief based on “policy of addressing on direct appeal only those issues raised by
counsel”).
5
motion and that the district court has a secondary gatekeeping role to assure the motion

does, in fact, satisfy § 2255(h)(2). The Government further argues the district court

correctly concluded Johnson did not create a retroactive, new rule applicable to the

mandatory Guidelines.

After briefing concluded, several key developments occurred in the law

surrounding Johnson. First, the Supreme Court issued its decision in Sessions v. Dimaya,

holding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which

is similarly, but not identically, worded to the residual clause of § 924(e)(2)(B)(ii)—was

unconstitutionally vague. 138 S. Ct. 1204 (2018). Second, the Supreme Court denied

certiorari petitions in several cases where circuit courts rejected § 2255 Johnson-based

challenges to the residual clause in USSG § 4B1.2. See, e.g., Raybon v. United States,

138 S. Ct. 2661 (2018); Lester v. United States, 138 S. Ct. 2030 (2018). Third, several

other circuit courts addressed whether Johnson created a retroactive, new rule applicable

to the residual clause of USSG § 4B1.2. See United States v. Blackstone, 903 F.3d 1020,

1025–28 (9th Cir. 2018) (holding Supreme Court has yet to announce rule that mandatory

Guidelines are susceptible to void for vagueness challenge); Russo v. United States, 902

F.3d 880, 882–84 (8th Cir. 2018) (denying § 2255 relief and holding prisoner was not

asserting a right based on Johnson because reasonable minds could debate whether

Johnson announced a new rule of constitutional law applicable to the mandatory

Guidelines); United States v. Green, 898 F.3d 315, 319–23 (3d Cir. 2018) (holding

§ 2255 motion untimely because Beckles v. United States, 137 S. Ct. 886 (2017), favors

conclusion Johnson did not create new rule applicable to mandatory Guidelines and that

6
issue remains open); Cross v. United States, 892 F.3d 288, 299–306 (7th Cir. 2018)

(holding Johnson created new rule applicable to all vague, mandatory residual clauses

that enhance punishment such that § 2255 relief from sentence imposed under mandatory

Guidelines scheme was proper).

In the midst of these developments, we ordered the parties to submit

simultaneous supplemental briefs. In his supplemental brief, Mr. Pullen argues

Dimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C.

§ 924(e)(2)(B)(ii).2 And Mr. Pullen articulates the new rule from Johnson as a

due process right not to have a statutory penalty range fixed by a
provision that defines a prior conviction as one involving “conduct that
presents a serious potential risk of physical injury to another,” and that
uses an ordinary-case categorical approach to measure whether the
conviction is sufficiently risky to count under the provision.

Pullen Supp. Br. at 5–6 (not identifying source of quotation). The Government argues

neither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision

or whether the void for vagueness doctrine applies to the Guidelines. Rather, the

Government argues, Beckles provides the best guidance on whether Johnson created

a new rule relative to the mandatory Guidelines. The majority opinion in Beckles

rejected a Johnson-based challenge to the advisory Guidelines and Justice

Sotomayor, in a concurrence, indicated that Johnson’s applicability to the mandatory

Guidelines “remains an open question.” Gov. Supp. Br. at 5. The Government

2
Out of concern that his counsel might not have filed a supplemental brief,
Mr. Pullen moved to file a pro se supplemental brief. As Mr. Pullen is represented by
counsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion.
See McDermott, 64 F.3d at 1150 n.1.
7
theorizes that if the question remains open, Johnson does not create a new rule

applicable to the mandatory Guidelines because, if a question is “expressly left open,

then the right, by definition, has not been recognized.” Id. at 5–6 (quoting United

States v. Brown, 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied, 139 S. Ct. 14

(2018)).

Finally, subsequent to oral argument, the Supreme Court, over a two justice

dissent, denied certiorari petitions in a second set of cases where circuit courts denied

§ 2255 motions raising Johnson-based challenges to the residual clause of USSG

§ 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States,

139 S. Ct. 14 (2018); see Gipson v. United States, 2018 WL 1993703 (Oct. 15, 2018);

Lewis v. United States, 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States,

2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States, 2018 WL 2064772 (Oct.

15, 2018); Molette v. United States, 2018 WL 1640168 (Oct. 15, 2018); Homrich v.

United States, 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States, 2018 WL

3024068 (Oct. 15, 2018); Smith v. United States, 2018 WL 3024136 (Oct. 15, 2018);

Buckner v. United States, 2018 WL 3024166 (Oct. 15, 2018);3 see also Robinson v.

United States, 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States, 2018 WL

3
Footnote 1 of the dissent from the denial of certiorari in Brown v. United
States indicates that the dissent also applies to the other nine orders denying
certiorari that issued on October 15, 2018. 139 S. Ct. 14, 14 n.1 (2018) (Sotomayor,
J., dissenting from denial of certiorari). Where Justice Ginsburg joined the dissent in
Brown in full and without reservation, we interpret footnote 1 as indicating that
Justice Ginsburg dissented from the other nine denials of certiorari issued on October
15, 2018, even though the orders in those denials do not specifically identify Justice
Ginsburg as dissenting.
8
3660076 (Dec. 3, 2018); Bowens v. United States, 2018 WL 5113456 (Nov. 19,

2018); Callins v. United States, 2018 WL 4932460 (Nov. 13, 2018).

II. STANDARD OF REVIEW

“Where, as here, the district court does not hold an evidentiary hearing, but

rather denies the motion as a matter of law . . . our review is strictly de novo.” United

States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted).

Further, “[w]e are not bound by the district court’s reasoning and may affirm on any

ground adequately supported by the record.” United States v. Greer, 881 F.3d 1241,

1244 (10th Cir. 2018), (internal quotation marks omitted) cert. denied 2018 WL

2087987; see Grossman v. Bruce, 447 F.3d 801, 805 n.2 (10th Cir. 2006) (“[W]e are

free to affirm [the denial of 28 U.S.C. § 2241 relief] on any ground for which there is

a sufficient record to permit conclusions of law.”).

III. DISCUSSION

A. Threshold Requirement for Second or Successive § 2255 Motion

Although prisoners who have not filed a prior § 2255 motion may file such a

motion directly in the district court, a prisoner who filed a prior § 2255 motion must

obtain authorization from a circuit court judge prior to filing the motion in district

court. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or

successive application permitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals for an order authorizing the

district court to consider the application.”). Section 2255(h) of Title 28 sets out the

requirements for authorization and states, in pertinent part:

9
 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.

To obtain authorization to file a second or successive § 2255 motion, a movant

relying on a new rule of constitutional law must make a prima facie showing to the

circuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C.

§ 2244(b)(3)(C).

B. Secondary Requirement for Second or Successive § 2255 Motion

Having concluded that Mr. Pullen made a prima facie showing to the circuit court

that he satisfies the § 2255(h)(2) requirements, we next consider whether the district

court possessed the authority to deny Mr. Pullen relief and dismiss his § 2255 motion

pursuant to § 2255(h)(2) after the circuit court certified his prima facie compliance.

Our recent decision in Murphy controls our analysis.

As discussed, “[u]nder § 2255(h)(2), a second or successive [§ 2255] motion

must be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain

a previously unavailable new rule of constitutional law that the Supreme Court has

made retroactively applicable to cases on collateral review.” Murphy, 887 F.3d at

1067. In turn, § 2244(b)(3) instructs that “to receive certification, a motion need only

make a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added).

Because § 2244(b)(3) requires only a prima facie showing for certification by the

court of appeals, certification amounts to only a “preliminary” determination that the

10
second or successive § 2255 motion contains a claim based on a new rule of

constitutional law made retroactive on collateral review by the Supreme Court. Id.

The “preliminary” nature of this determination means the movant must pass through

a second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the

court of appeals grants authorization, the district court must determine whether the

petition does, in fact, satisfy the requirements for filing a second or successive

motion before the merits of the motion can be considered.” Id. (internal quotation

marks omitted). In summation, the two procedural gates a prisoner must pass through

before obtaining review of the merits of a second or successive § 2255 motion are:

(1) a prima facie showing to the court of appeals that the motion
satisfies the requirements of § 2255(h), defined as “a sufficient
showing of possible merit to warrant a fuller exploration by the
district court” and
(2) a determination by the district court that the petition does, in fact,
satisfy those requirements.

Id. at 1068 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).

In accord with this two-gate approach, the district court was required to

analyze whether Mr. Pullen’s § 2255 motion actually relied on “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s

§ 2255 motion did not actually rely on a new rule of constitutional law applicable to

the mandatory Guidelines, the district court relied on § 2255(h)(2) to dismiss the

motion.

11
 With these requirements in mind, we discuss the history of the Sentencing

Guidelines and of Johnson and its progeny before turning to the issue of whether the

district court correctly determined that Mr. Pullen cannot actually satisfy the

requirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his

motion relies on a new rule of constitutional law already decided and deemed

retroactively applicable by the Supreme Court.

C. Legal Background

1. History of the Guidelines

In 1984, Congress authorized the United States Sentencing Commission to

promulgate the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 361, 362

(1989). Prior to the adoption of the Guidelines, the often expansive statutory

minimum and maximum penalties for an offense served as the only constraint on a

federal judge’s discretion at sentencing. Id. at 364 (describing the pre-Guidelines

sentencing scheme as one where “Congress delegated almost unfettered discretion to

the sentencing judge to determine what the sentence should be within the customarily

wide range so selected”). One of the primary purposes behind the creation of the

Guidelines was to “promote uniformity and proportionality in sentencing” across the

country. United States v. Jackson, 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en

banc). And in passing the Sentencing Reform Act of 1984, Congress intentionally

“settl[ed] on a mandatory-guideline system,” rather than an advisory system.

Mistretta, 488 U.S. at 367.

12
 Codifying the generally mandatory nature of the Guidelines, Congress enacted

18 U.S.C. § 3553(b)(1), which states, in pertinent part:

Except as provided in paragraph (2), the court shall impose a sentence
of the kind, and within the range, [produced by the Guidelines] unless
the court 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.
In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing guidelines,
policy statements, and official commentary of the Sentencing
Commission.

(emphasis added). In 2005, the Supreme Court struck down the above-quoted

statutory provision, concluding the Sixth Amendment precluded a sentencing judge

from finding facts that effectively increased a defendant’s punishment where those

facts had not been found by a jury or admitted by the defendant as part of a guilty

plea. United States v. Booker, 543 U.S. 220, 244 (2005).4 In reaching this conclusion,

the Court held the Guidelines acted like a statute because a sentencing judge’s ability

to depart from the Guidelines range was so strictly limited that the Guidelines range

drove a defendant’s sentence in the vast majority of cases. Id. at 234. To solve the

constitutional problem with a mandatory-Guidelines scheme, the Supreme Court

severed the portion of the Sentencing Reform Act of 1984 that made the Guidelines

4
Despite Booker’s statement about judicial factfinding at sentencing violating
the Sixth Amendment, an exception to this general prohibition exists where the
district court makes factual findings regarding a defendant’s prior criminal history.
See Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).
13
mandatory, transforming the Guidelines into their present-day, advisory form. Id. at

265; see also id. at 245–60.

2. Johnson and its Progeny

In 2015, the Supreme Court addressed the constitutionality of 18 U.S.C.

§ 924(e)(2)(B). Section 924(e)(2)(B) defined “violent felony” as

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

(emphasis added). In Johnson, the Court concluded the emphasized language, known

as the residual clause, was void for vagueness because “the indeterminacy of the

wide-ranging inquiry required by the residual clause both denies fair notice to

defendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at

2556 (identifying “fail[ure] to give ordinary people fair notice of the conduct it

punishes” and being “so standardless that it invites arbitrary enforcement” as two

bases for finding statute unconstitutionally vague). Johnson, however, limited its

holding to the residual clause of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s

decision does not call into question application of the [ACCA] to the four enumerated

offenses, or the remainder of the [ACCA’s] definition of a violent felony.”); see also

Greer, 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in

Johnson was a defendant’s right not to have his sentence increased under the residual

clause of the ACCA.”).

14
 In the aftermath of Johnson, courts were flooded with challenges, both on

direct appeal and under § 2255, to convictions or sentences supported by

§ 924(e)(2)(B)(ii) or other provisions resembling § 924(e)(2)(B)(ii). A trio of

Supreme Court cases shape the state of the law post-Johnson. First, in Welch v.

United States, the Court held Johnson announced a new rule of constitutional law

that applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1264–65

(2016). Although Welch never explicitly states the rule from Johnson, the majority

opinion suggests the rule was limited to the ACCA. See id. at 1265 (“By striking

down the residual clause as void for vagueness, Johnson changed the substantive

reach of the Armed Career Criminal Act, altering the range of conduct or the class of

persons that the [Act] punishes . . . . The residual clause is invalid under Johnson, so

it can no longer mandate or authorize any sentence. Johnson establishes . . . that even

the use of impeccable factfinding procedures could not legitimate a sentence based

on that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J.,

dissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally

vague if it ‘requires a court to picture the kind of conduct that the crime involves in

“the ordinary case,” and to judge whether that abstraction presents a serious potential

risk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)).

Second, in Beckles, the Court addressed whether the residual clause of USSG

§ 4B1.2 of the advisory Guidelines was susceptible to a void for vagueness challenge

15
similar to the challenge that prevailed in Johnson.5 See 137 S. Ct. at 890. Because the

residual clause of USSG § 4B1.2(a)(2) was identical to the language held void for

vagueness in Johnson, several circuit courts, including this court, concluded the rule

from Johnson necessitated the invalidation of the residual clause in § 4B1.2(a)(2)

within the context of the advisory Guidelines. See United States v. Pawlak, 822 F.3d

902 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en

banc); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). But see United States

v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge

to advisory Guidelines).

In Beckles, the Supreme Court rejected the position that the advisory

Guidelines were susceptible to the rule from Johnson or a void for vagueness

5
Recall that USSG § 4B1.2 defined “crime of violence” as:

[A]ny 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.

USSG § 4B1.2(a) (1998–2015) (emphasis added). The emphasized language is the
residual clause that was at issue in Beckles v. United States, 137 S. Ct. 886 (2017),
and is at issue in this case. In 2016, the Sentencing Commission passed an
amendment to the Guidelines adding several enumerated offenses to subsection (2)
and removing the residual clause of the subsection. USSG Supp. to App. C., Amend
798 at 131 (Nov. 1, 2016) (“Amendment 798”). Amendment 798, however, has no
bearing on Mr. Pullen’s case as the Amendment does not apply retroactively. See
USSG § 1B1.10(d) (listing amendments that apply retroactively).

16
challenge. 137 S. Ct. at 894–95. In so holding, the Court observed it had “invalidated

two kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses

and laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and

third emphases added). The Beckles Court further observed that “‘statutes fixing

sentences’ must specify the range of available sentences with ‘sufficient clarity,’” id.

(emphasis added) (first quoting Johnson, 135 S. Ct. at 2557, then quoting United

States v. Batchelder, 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range

of penalties that prosecutors and judges may seek and impose,’ Congress ha[s]

‘fulfilled its duty’” to craft a law that comports with due process, id. at 893 (quoting

Batchelder, 442 U.S. at 126). The Court then distinguished the advisory Guidelines,

which “do not fix the permissible range of sentences,” from the “statute” at issue in

Johnson, which did “fix[] permissible sentences.” Id. at 892. From this, the Court

concluded “[t]he advisory Guidelines . . . do not implicate the twin concerns

underlying [the] vagueness doctrine—providing notice and preventing arbitrary

enforcement.” Id. at 894. As to the first of these concerns, “[a]ll of the notice

required is provided by the applicable statutory range, which establishes the

permissible bounds of the court’s sentencing discretion.” Id. Along those lines, the

Court stated, “[t]he Guidelines . . . do not regulate the public by prohibiting any

conduct or by ‘establishing minimum and maximum penalties for any crime.’” Id. at

895 (quoting Mistretta, 488 U.S. at 396).

The majority opinion in Beckles, however, indicated that the second concern of

the void for vagueness doctrine—preventing arbitrary enforcement—was ameliorated

17
by the advisory nature of the Guidelines post-Booker and the sentencing judge’s

discretion to impose a sentence anywhere within the statutory range. Id. The

distinction between the discretion afforded sentencing judges under the advisory

Guidelines, compared to the mandatory Guidelines, caught the attention of Justice

Sotomayor, whose concurrence stated:

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 our decision in United States
v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the
Guidelines did “fix the permissible range of sentences”—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.

Id. at 903 n.4 (Sotomayor, J. concurring in the judgment) (citations omitted).

Third, in Dimaya, the Supreme Court relied on the void for vagueness doctrine

to strike down 18 U.S.C. § 16(b)’s definition of crime of violence, a provision the

Court described as “similarly worded” to the residual clause struck down in Johnson.

Dimaya, 138 S. Ct. at 1210. In so holding, the opinion of the Court made three

statements potentially important to determining the scope of the new rule from

Johnson. First, Dimaya indicated its ruling was a product of “adhering” to the

analysis set forth in Johnson. Id. Second, Dimaya called Johnson “a straightforward

decision, with equally straightforward application here” such that the “reasoning” of

Johnson “effectively resolved the [issue] before” the Court in Dimaya.6 Id. at 1213.

6
Notably, Dimaya could have, but did not, state that any “rule” from Johnson
“dictated” a result in Dimaya. Cf. Russo v. United States, 902 F.3d 880, 883 (8th Cir.

18
Finally, Dimaya compared § 16(b) and § 924(e)(2)(B)(ii), stating that both statutes

“‘require[] a court to picture the kind of conduct that the crime involves in “the

ordinary case” and to judge whether that abstraction presents’ some not-well-

specified-yet-sufficiently-large degree of risk.” Id. at 1216 (quoting Johnson, 135 S.

Ct. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b)

produces, just as the ACCA’s residual clause did, ‘more unpredictability and

arbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson,

135 S. Ct. at 2558).

D. Analysis

Based on Johnson and its progeny, Mr. Pullen describes the new and

retroactive rule from Johnson as a right not to be sentenced under an ordinary-case

categorical approach requiring a judge to picture conduct of the crime and predict

whether that conduct presents a sufficiently large degree of risk. Before considering

the rule Mr. Pullen advances, we pause to address the iterations of the rule by this

court and others. We then turn to the formulation of the rule endorsed by Mr. Pullen,

ultimately deciding it does not permit relief on a second or successive § 2255 claim

challenging the mandatory Guidelines because the Supreme Court has not yet

2018) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989), for proposition that “[a]
case announces a new rule if the result was not dictated by precedent existing at the
time the defendant’s conviction became final” and concluding that any rule relative
to the mandatory Guidelines would be a new rule because the rule “is not dictated by
Johnson”).
19
announced a rule with respect to the mandatory Guidelines. Thus, we agree with the

district court that Mr. Pullen’s motion does not actually satisfy § 2255(h)(2).

1. Decisions Defining the Rule Announced in Johnson

Several circuit court decisions, including our own decision in Greer, have

stated the new rule created by Johnson as “a defendant’s right not to have his

sentence increased under the residual clause of the ACCA.”7 Greer, 881 F.3d at

1248; see also Green, 898 F.3d at 321 (“[I]n light of Beckles, Johnson’s holding as to

the residual clause in the ACCA created a right only as to the ACCA, and not a

broader right that applied to all similarly worded residual clauses, such as that found

in the advisory Sentencing Guidelines.”); Brown, 868 F.3d at 303 (“Johnson only

recognized that ACCA’s residual clause was unconstitutionally vague.”). If this

phrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to

proceed on his § 2255 motion because his Guidelines range was increased as a result

of application of USSG § 4B1.1 and the residual clause of USSG § 4B1.2(a)(2) of the

mandatory Guidelines and not the residual clause of the ACCA.

The Seventh Circuit, the only circuit to grant relief to a § 2255 movant relying

on Johnson to challenge USSG §§ 4B1.1, 1.2 of the mandatory Guidelines, has

expressed the new rule from Johnson as “a right not to have his sentence dictated by

7
The narrowness of that statement of the rule from Johnson has been called
into question by Dimaya’s application of the rule to a statutory context outside of the
ACCA—albeit on direct review. But we need not define the precise boundaries of the
rule today because Mr. Pullen’s attempt to apply Johnson to the mandatory
Guidelines fails even under his more expansive statement of that rule.
20
the unconstitutionally vague language of the mandatory residual clause.” Cross, 892

F.3d at 294; see Blackstone, 903 F.3d at 1027 (identifying quoted language from

Cross as Seventh Circuit’s statement of new right from Johnson). But the Ninth

Circuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a

high level of generality that it runs afoul of Supreme Court teachings regarding the

parameters for phrasing a new rule for purposes of a collateral proceeding. See

Blackstone, 903 F.3d at 1026 (“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.”) (citations omitted). We need not consider

whether the Seventh Circuit’s articulation of the rule is so broad as to restate existing

law, rather than announcing a new rule, because Mr. Pullen has espoused a more

narrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of

the new rule now.

2. Mr. Pullen’s Statement of the Rule

Mr. Pullen argues the proper statement of the new rule from Johnson is the

right not to be sentenced under an ordinary-case categorical approach that requires

the judge to imagine both the conduct necessary to commit the crime and the degree

of risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can

be drawn from the dissent in Welch and from Dimaya. On the former, as pointed out

above, the dissent in Welch identified the new rule from Johnson in a manner similar

to the rule stated by Mr. Pullen. See Welch, 136 S. Ct. at 1272 (Thomas, J.,

dissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally

21
vague if it ‘requires a court to picture the kind of conduct that the crime involves in

“the ordinary case,” and to judge whether that abstraction presents a serious potential

risk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)). With respect to the

latter, Dimaya read Johnson as concluding that a residual clause is unconstitutionally

vague if it “‘requires a court to picture the kind of conduct that the crime involves in

“the ordinary case,” and to judge whether that abstraction presents’ some not-well-

specified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson,

135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct

regarding the proper phrasing of the new rule from Johnson, three considerations

defeat his ability to rely on the rule to proceed with a second or successive § 2255

motion challenging the mandatory Guidelines.

First, central to whether Mr. Pullen can rely on any new rule from Johnson is

whether application of the rule to the mandatory Guidelines is “dictated by

precedent” and “apparent to all reasonable jurists” as opposed to “susceptible to

debate among reasonable minds.” Russo, 902 F.3d at 883 (quotation marks omitted).8

Neither Johnson, Welch, nor Dimaya addressed a challenge to a provision of the

Guidelines, mandatory or advisory. Instead, the only case to address a Johnson-based

challenge to the Guidelines is Beckles, which concluded the advisory Guidelines were

8
The Eighth Circuit reached this conclusion based on a trio of Supreme Court
cases discussing principles governing new rules: Teague v. Lane, 489 U.S. 288, 301
(1989), Chaidez v. United States, 568 U.S. 342, 347 (2013), and Butler v. MecKellar,
494 U.S. 407, 415 (1990). See Russo v. United States, 902 F.3d 880, 883 (8th Cir.
2018).

22
not susceptible to a void for vagueness challenge. 137 S. Ct. at 897. And while the

advisory nature of the Guidelines at issue in Beckles was undoubtedly important to

the Court’s holding, the concurrence in Beckles indicated that Johnson’s applicability

to the mandatory Guidelines remained an open question. See id. 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 our decision

in United States v. Booker . . . may mount vagueness attacks on their sentences.”).9 If

a question remains “open,” it is not dictated by precedent. See Brown, 868 F.3d at

301 (“[I]f 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.”); Raybon,

867 F.3d at 630 (“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.’” (quoting 28 U.S.C. § 2255(f)(3))); see also

Blackstone, 903 F.3d at 1026–27 (relying on open nature of question when affirming

denial of § 2255 relief).

Second, central to why the question remains open is that Johnson involved a

federal statute, while the Guidelines, even in their mandatory form, were agency-

9
Even after Dimaya, Justice Sotomayor still believes the question remains
open. See Brown v. United States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting
from denial of certiorari) (“But for petitioners like Brown, who were sentenced long
before Johnson, this Court has thus far left the validity of their sentences an open
question. The Court’s decision today all but ensures that the question will never be
answered.” (citation omitted)).
23
created rules formed by the U.S. Sentencing Commission to supplement existing,

congressionally-enacted statutory maximum and minimum sentencing ranges. While

the Guidelines established a mandatory range, this mandatory range always fell

within the statutory minimum and maximum affixed by Congress. See USSG

§ 5G1.1. Thus, regardless of any vagueness in the mandatory Guidelines, the

Supreme Court might conclude the statutory scheme enacted by Congress placed the

defendant on fair notice of the possible penalties he faced for committing an offense.

Cf. Beckles, 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors

and judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting

Batchelder, 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by

the applicable statutory range, which establishes the permissible bounds of the

court’s sentencing discretion.”).10

Third, where the Guidelines replaced an open-ended sentencing scheme under

which judges could impose any sentence within the statutory range, even a somewhat

vague residual clause in the Guidelines provided more guidance to sentencing judges

than existed prior to the mandatory Guidelines.11 See In re Griffin, 823 F.3d 1350,

10
By concluding that the Supreme Court might not strike the residual clause in
the mandatory Guidelines as void for vagueness, we do not mean to suggest the Court
will reach such a result.
11
Mr. Pullen does not identify any case holding that an open-ended sentencing
scheme under which a judge could impose any sentence between a properly
announced statutory minimum and statutory maximum failed under the Due Process
Clause and the void for vagueness doctrine.

24
1354–55 (11th Cir. 2016) (per curiam) (“Because there is no constitutional right to

sentencing only under guidelines, the limitations the Guidelines place on a judge’s

discretion cannot violate a defendant’s right to due process by reason of being vague.

. . . Even vague guidelines cabin discretion more than no guidelines at all.”).12 And,

because the Supreme Court has already indicated in Beckles that a defendant received

fair notice of the broad, but specified, range of penalties he faced under the statutory

scheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing

judge’s discretion was more cabined with the residual clause in USSG § 4B1.2(a)(2)

than in the absence of any Guidelines, the Court might conclude that the two

concerns underlying the void for vagueness doctrine are not present in the context of

the mandatory Guidelines.

12
To be sure, the Supreme Court could conclude the language of USSG
§ 4B1.2, within the context of the mandatory Guidelines, did not satisfy due process
and void for vagueness considerations. Justice Sotomayor suggested the possibility of
such a result within her concurrence in Beckles:

[A] district court’s reliance on a vague Guideline [such as U.S.S.G. § 4B1.2]
creates serious risk of “arbitrary enforcement.” . . . It introduces an
unacceptable degree of arbitrariness into sentencing proceedings to begin by
applying a rule that is so vague that efforts to interpret it boil down to
guesswork and intuition.”

137 S. Ct. at 901 (Sotomayor, J., concurring) (citations omitted). The point is that the
Supreme Court has not yet answered the question. This is fatal to Mr. Pullen’s
successive § 2255 motion, especially within in the context of a § 2255(h)(2) analysis
where Mr. Pullen must identify a new rule retroactively applicable to his claim for
relief.

25
 In accord with the second and third reasons discussed above, Beckles observed

that the Court has “invalidated two kinds of criminal laws as ‘void for vagueness’:

laws that define criminal offenses and laws that fix the permissible sentences for

criminal offenses.” Id. at 892 (first and third emphases added). As to the second type

of laws, “‘statutes fixing sentences’ must specify the range of available sentences

with ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson, 135 S. Ct. at

2557, then quoting United States v. Batchelder, 442 U.S. 114, 123 (1979)). But, the

mandatory Guidelines were not laws or statutes; rather, they merely operated like

statutes. Thus, while the Supreme Court might one day conclude, by relying on the

actual innocence gateway,13 that the mandatory Guidelines sufficiently took the form

of a law or a statute so as to expose the mandatory Guidelines to a void for vagueness

challenge, such a conclusion or rule is (1) debatable and (2) essential to Mr. Pullen’s

ability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not

yet established by the Supreme Court and, consequently, not made retroactively

applicable by the Court.14 This conclusion provides a sufficient basis to preclude Mr.

13
This circuit does not recognize actual innocence in the sentencing context,
except in capital sentences. See United States v. Denny, 694 F.3d 1185, 1191 (10th
Cir. 2012) (“[A] defendant cannot be actually innocent of a noncapital sentence[.]”
(internal quotation marks omitted)). But other circuits do permit such arguments, see
Cristin v. Brennan, 281 F.3d 404, 421–22 (3d Cir. 2002) (collecting cases), and the
Supreme Court has left open the question of whether a prisoner can rely on the actual
innocence gateway to challenge a noncapital sentence, see Dretke v. Haley, 541 U.S.
386, 393–94 (2004).
14
The Court could conclude that the mandatory Guidelines, although not
statutes, are subject to a void for vagueness challenge and that they do not satisfy due

26
Pullen from proceeding on his § 2255 motion. See Blackstone, 903 F.3d at 1028;

Russo, 902 F.3d at 883.

3. Summation

Mr. Pullen is not entitled to proceed on his § 2255 motion under his iteration

of the new rule from Johnson. Accordingly, the district court correctly concluded Mr.

Pullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing

a second or successive § 2255 motion. This conclusion is consistent with the rulings

of six of our seven sibling circuits, which deny § 2255 relief because Johnson either

(1) did not recognize a new right applicable to the mandatory Sentencing Guidelines

for purposes of the requirement in 28 U.S.C. § 2255(f)(3) or (2) did not create a new

rule applicable to the mandatory Sentencing Guidelines for purposes of meeting the

requirements in 28 U.S.C. § 2255(h)(2). See Blackstone, 903 F.3d at 1028 (denying

§ 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory

Guidelines); Russo, 902 F.3d at 883–84 (same); Green, 898 F.3d at 321–33 (same);

Brown, 868 F.3d at 301–02 (same); Raybon, 867 F.3d at 629–31 (same); In re

process concerns because they permitted judges to prescribe sentencing ranges
arbitrarily. See Beckles, 137 S. Ct. at 894-95 (explaining that a vague law which
permits judges to prescribe sentencing ranges invites arbitrary enforcement). But, to
date, the Supreme Court has not announced a new rule retroactively applicable to the
mandatory Guidelines. Nor, as apparent from the denials of certiorari, has the
Supreme Court seen fit to take up the issue of Johnson’s impact on the mandatory
Guidelines. And unless and until it does, Mr. Pullen cannot establish that his
successive § 2255 motion actually relies on a new rule for purposes of authorization
under § 2255(h)(2).

27
Griffin, 823 F.3d at 1354–56 (denying authorization under § 2255(h)(2) because

Johnson did not announce new rule applicable to the mandatory Guidelines).15 But

see Cross, 892 F.3d at 294.16 It is also consistent with the Supreme Court’s recent

denials of certiorari on a series of petitions seeking reversal of the aforementioned

circuit decisions. And while denials of certiorari often do not shed light on the merits

15
Although the Fourth, Sixth and Eleventh Circuits reached their decisions
before Dimaya, the Sixth and Eleventh Circuits continue to rely respectively upon
Raybon and Griffin after Dimaya. See Robinson v. United States, 736 F. App’x 599,
599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court
decision and remained law of the circuit); Foxx v. United States, 736 F. App’x 253,
254 (11th Cir. 2018) (“[W]e cannot deviate from In re Griffin given the current state
of the law, and this forecloses Foxx’s appeal.”); Lewis v. United States, 733 F. App’x
501, 503 (11th Cir. 2018) (concluding In re Griffin “remains binding”). It does not
appear the Fourth Circuit has revisited the issue since Dimaya.
Separately, we observe that while In re Griffin involved the denial of
authorization for failing to make a prima facie showing under § 2255(h)(2) and 28
U.S.C. § 2244(b)(3), 823 F.3d 1350, 1351, 1354–56 (11th Cir. 2016) (per curiam),
Mr. Pullen already passed through the prima facie gate when we granted
authorization. Thus, rather than relying on § 2244(b)(3) when dismissing Mr.
Pullen’s § 2255 motion, the district court correctly relied on § 2244(b)(4) to conclude
Mr. Pullen did not satisfy the requirements set forth by § 2255(h)(2).
16
Mr. Pullen argues the First Circuit, in Moore v. United States, 871 F.3d 72
(1st Cir. 2017), reached the same result as the Seventh Circuit. Moore, however,
involved a preliminary, or prima facie, determination under 28 U.S.C. § 2244(b)(3)
that a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines
and not the conclusion that the second or successive § 2255 motion was actually
premised on a new rule of constitutional law made retroactive by the Supreme Court
for purposes of the 28 U.S.C. § 2244(b)(4) analysis. See Moore, 871 F.3d at 80
(“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.”). Thus, even if other language in Moore suggests the panel of the
First Circuit would have reached the same conclusion had it been conducting a
§ 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent
as to the § 2244(b)(4) question.

28
of an issue, see United States v. Carver, 260 U.S. 482, 490 (1923), these denials of

certiorari (1) were over a two justice dissent, which expressly states the question is

open and not likely to ever be resolved; and (2) the individual defendants are now

precluded from filing new and timely § 2255 motions based on Johnson should the

Supreme Court later adopt the position advanced in their certiorari petitions.17

IV. CONCLUSION

We conclude Johnson did not create a new rule of constitutional law applicable to

the mandatory Guidelines because (1) Beckles suggests the void for vagueness doctrine’s

applicability to the mandatory Guidelines remains an open question; (2) the Guidelines,

even in their mandatory form, were not statutes; and (3) even a vague provision of the

Guidelines provided more guidance to defendants and sentencing judges than did the

congressionally-enacted statutory minimum and maximum sentences that provided

defendants sufficient due process. Although the Supreme Court might reject all of these

considerations and invalidate the residual clause of the mandatory Guidelines, it has not

yet done so. Because Johnson did not create a new rule of constitutional law applicable to

17
In concluding that, regardless of how the new rule from Johnson is phrased,
Johnson does not create a new rule of constitutional law relative to the mandatory
Guidelines, we find it unnecessary to decide whether Greer’s statement of the rule
from Johnson is too narrow in light of Dimaya. Rather, it is clear Greer’s holding,
that Johnson does not create a new rule of constitutional law applicable to the
mandatory Guidelines, remains good law.

29
the mandatory Guidelines, the district court properly denied relief and dismissed Mr.

Pullen’s § 2255 motion pursuant to § 2255(h)(2). Accordingly, we AFFIRM.18

18
We DENY Mr. Pullen’s motion to file a pro se opening brief and his motion
to file a pro se supplemental brief.
30