United States v. Thilo Brown

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7056

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

THILO BROWN,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina at
Charleston. Patrick Michael Duffy, Senior U. S. District Court Judge. (2:02-cr-00519-
PMD-1; 2:16-cv-268-PMD)

Argued: May 11, 2017 Decided: August 21, 2017

Before GREGORY, Chief Judge, and DUNCAN and DIAZ, Circuit Judges

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Diaz
joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Alicia Vachira Penn, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, South Carolina, for Appellant. William Camden Lewis, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF:
Beth Drake, United States Attorney, Columbia, South Carolina, Marshall Taylor Austin,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee.
DUNCAN, Circuit Judge:

Petitioner-Appellant Thilo Brown appeals the district court’s order dismissing his

28 U.S.C. § 2255 motion. This court granted Petitioner a certificate of appealability on

the issue of whether, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), his

prior South Carolina conviction for assault on a police officer while resisting arrest,

S.C. Code Ann. § 16-9-320(B) (“Resisting-Arrest Assault Conviction”), qualifies as a

predicate “crime of violence” for career-offender status under the Sentencing Guidelines,

U.S.S.G. §§ 4B1.1(a), 4B1.2(a) (2002). For the reasons that follow, we affirm the district

court.

Petitioner can succeed only if, inter alia, a Supreme Court precedent has rendered

his motion timely by recognizing a new right entitling him to relief. 28 U.S.C.

§ 2255(f)(3). As the dissent acknowledges, neither Johnson, nor Beckles, nor any other

Supreme Court case has recognized the specific right on which Brown seeks to rely. 1 See

Johnson, 135 S. Ct. at 2555–56, 2560, 2563; Beckles, 137 S. Ct. 886, 895 (2017); see

also id. at 903 n.4 (Sotomayor, J., concurring). With respect for its view, we are

constrained by the Antiterrorism and Effective Death Penalty Act (AEDPA)

jurisprudence from extrapolating beyond the Supreme Court’s holding to apply what we

view as its “reasoning and principles” to different facts under a different statute or

1
The dissent specifically recognizes that Beckles leaves open the question of
whether Johnson applies under a mandatory-guidelines regime and quotes from Justice
Sotomayor’s concurring opinion in Beckles to that effect. See infra at 22. If a question is
expressly left open, then the right, by definition, has not been recognized.

2
sentencing regime. We are thus compelled to affirm the dismissal of Petitioner’s motion

as untimely under 28 U.S.C. § 2255(f)(3).

On March 19, 2003, Petitioner pleaded guilty to possession with intent to

distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii) (“Drug Offense”), and to carrying a firearm during the commission of a

drug crime in violation of 18 U.S.C. § 924(c) (“Firearm Offense”). J.A. 83.

At sentencing, the district court designated Petitioner a career offender under

U.S.S.G. § 4B1.1(a) (2002) because he had a prior felony conviction that qualified as a

predicate controlled-substance offense, 2 and his prior Resisting-Arrest Assault

Conviction qualified as a predicate crime-of-violence offense. J.A. 90, 91;

U.S.S.G. § 4B1.2(a) (2002). Because the district court sentenced Petitioner on July 14,

2003, before United States v. Booker, 543 U.S. 220 (2005), Petitioner’s career-offender

status resulted in a mandatory guideline range of 262–327 months for the Drug Offense

and a minimum consecutive sentence of sixty months for the Firearm Offense.3 J.A. 89–

2
Petitioner stipulated in his plea agreement that he had a prior felony drug
conviction for trafficking crack cocaine, and agreed not to contest the government’s filing
of an information, rendering him subject to a mandatory minimum sentence of 20 years
(240 months) for his Drug Offense. 21 U.S.C. § 851.
3
The Firearm Offense carried a mandatory minimum penalty of five years to life
imprisonment, to run consecutively to any other term of imprisonment imposed.
18 U.S.C. § 924(c); J.A. 79–80, 90.

3
102. Petitioner received a total sentence of 322 months--the low end of the guidelines’

range for both offenses and well within the range of permissible statutory sentences that

the district court could have imposed. J.A. 8–9. The district court entered judgment

against Petitioner on July 21, 2003. J.A. 8–9. Petitioner did not appeal.

On June 26, 2015--after Petitioner’s conviction became final for purposes of direct

review, but before Petitioner filed any 28 U.S.C. § 2255 motion--the Supreme Court

decided Johnson. 135 S. Ct. at 2555. In Johnson, the Court held that ACCA’s residual

clause was void for vagueness. Id. at 2560, 2563. 4

On January 28, 2016, Petitioner filed a 28 U.S.C. § 2255 motion to vacate his

sentence. Relying on Johnson, Petitioner argued that his prior Resisting-Arrest Assault

Conviction could no longer serve as a predicate crime of violence under

U.S.S.G. § 4B1.2(a) (2002), and therefore, his earlier designation as a career offender

was unjustified. J.A. 19–23, 45–54. Petitioner’s argument rested on the premise that

Johnson’s holding invalidated not only ACCA’s residual clause, but also like-worded

residual clauses in the Sentencing Guidelines. On June 17, 2016, the district court

dismissed Petitioner’s motion with prejudice and declined to issue a certificate of

4
ACCA imposes a statutorily mandated 15-year minimum prison term for a
person who violates 18 U.S.C. § 922(g) and has three previous convictions that qualify as
either a “serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e)(1). Prior to
Johnson, a crime qualified as a “violent felony” under ACCA’s residual clause if it
“otherwise involve[d] conduct that presents a serious potential risk of physical injury to
another.” Id. § 924(e)(2)(B)(ii).

4
appealability. J.A. 37–44. Petitioner appealed and moved for a certificate of

appealability on August 5, 2016. On December 7, 2016, this court granted Petitioner a

certificate of appealability on the issue of whether his prior Resisting-Arrest Assault

Conviction qualifies as a predicate offense for career-offender status in light of Johnson. 5

II.

On appeal, Petitioner relies on 28 U.S.C. § 2255(f)(3) to render his motion timely.

Under § 2255(f)(3), a petitioner can file a § 2255 motion relying on a right newly

recognized by the Supreme Court provided that, inter alia, he files within a one-year

window running from “the date on which the right asserted was initially recognized by

the Supreme Court.” Id. § 2255(f)(3).

Petitioner acknowledges, as he must, that the Supreme Court’s recent holding in

Beckles, forecloses his argument that Johnson explicitly invalidated all residual clauses

with wording similar to ACCA’s invalidated residual clause. Petitioner nevertheless

urges this court to extrapolate a recognized right from Booker, Johnson, and Beckles, read

together. Petitioner and the dissent maintain that we can find his asserted right in the

5
Although Petitioner raised other arguments for vacating his sentence before the
district court, we only granted a certificate of appealability as to whether his prior
Resisting-Arrest Assault Conviction qualifies as a predicate offense for career-offender
status in light of Johnson. If we were inclined to agree with Petitioner’s argument that
his prior conviction did not qualify under the applicable residual clause,
U.S.S.G. § 4B1.2(a)(2) (2002), we would normally have to decide whether his prior
conviction would nevertheless qualify as a predicate career-offender conviction under the
applicable force clause, U.S.S.G. § 4B1.2(a)(1) (2002). However, before oral argument,
the government withdrew its argument that Petitioner’s prior Resisting-Arrest Assault
Conviction qualifies as a predicate offense for career-offender status under the applicable
force clause. Beth Drake, Letter to the Fourth Circuit (May 8, 2017). Therefore, the
success of Petitioner’s appeal rises and falls on his residual-clause argument.

5
principles animating these decisions even though none of them, nor any other Supreme

Court precedent, have recognized a right to challenge the pre-Booker mandatory

Sentencing Guidelines as void for vagueness and despite the fact that the Beckles Court

expressly declined to address the issue of whether the pre-Booker mandatory Sentencing

Guidelines are amenable to void-for-vagueness challenges. See Beckles, 137 S. Ct. at

895; see also id. at 903 n.4 (Sotomayor, J., concurring).

We review de novo the question presented on appeal. See United States v. Diaz-

Ibarra, 522 F.3d 343, 347 (4th Cir. 2008); United States v. Thompson, 421 F.3d 278,

280–81 (4th Cir. 2005). As explained below, because of the procedural posture we are

compelled to affirm.

In accordance with Congress’s intent to limit the number of collateral-review

cases before federal courts and to respect the finality of convictions, the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified

as amended in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.C.) (“AEDPA”),

provides for a one-year statute of limitations for § 2255 motions. 28 U.S.C. § 2255(f).

Normally, for a motion to be timely under § 2255(f), a petitioner must file for relief

within one year of the date that his judgment of conviction becomes final.

See id. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 525 (2003). However, under

§ 2255(f)(3), courts will consider a petitioner’s motion timely if (1) he relies on a right

recognized by the Supreme Court after his judgment became final, (2) he files a motion

within one year from “the date on which the right asserted was initially recognized by the

6
Supreme Court,” 28 U.S.C. § 2255(f)(3), and (3) the Supreme Court or this court has

made the right retroactively applicable. See Dodd v. United States, 545 U.S. 353, 358–59

(2005); United States v. Mathur, 685 F.3d 396, 397–98 (4th Cir. 2012); United States v.

Thomas, 627 F.3d 534, 536–37 (4th Cir. 2010). Although this court can render a right

retroactively applicable, only the Supreme Court can recognize a new right under

§ 2255(f)(3). See Dodd, 545 U.S. at 357–59; Thomas, 627 F.3d at 536–37;

see also Mathur, 685 F.3d at 399–401. Consequently, to find Petitioner’s motion timely,

we must conclude that it relies on a right “recognized” in Johnson or another more recent

Supreme Court case. See Dodd, 545 U.S. at 357–59; see also Mathur, 685 F.3d at 399–

401. “As with any question of statutory interpretation, our analysis begins with the plain

language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118 (2009).

To “recognize” something is (1) “to acknowledge [it] formally” or

(2) “to acknowledge or take notice of [it] in some definite way.” Recognize, Merriam-

Webster Tenth Collegiate Dictionary 976 (1996); see also Tapia v. United States, 564

U.S. 319, 327 (2011). Thus, a Supreme Court case has “recognized” an asserted right

within the meaning of § 2255(f)(3) if it has formally acknowledged that right in a definite

way. Cf. Williams v. Taylor, 529 U.S. 362, 412 (2000) (interpreting the phrase “clearly

established Federal law, as determined by the Supreme Court” within another provision

of AEDPA to mean “the holdings, as opposed to the dicta” of Supreme Court precedent).

Correspondingly, 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.

Cf. Tyler v. Cain, 533 U.S. 656, 662–64 (2001) (interpreting the word “made” within

7
another provision of AEDPA--“made retroactive to cases on collateral review by the

Supreme Court”--to mean “held”).

We now turn to the right Petitioner claims the Supreme Court recognized in

Johnson. Petitioner’s motion relies on a claimed due-process right to have his guidelines’

range calculated without reference to an allegedly vague Sentencing Guidelines’

provision, despite the fact that the district court imposed his sentence within permissible

statutory limits. Regrettably for Petitioner, the Supreme Court did not recognize such a

right in Johnson. While Johnson did announce a retroactively applicable right,

Welch v. United States, 136 S. Ct. 1257, 1265 (2016), Johnson dealt only with the

residual clause of ACCA--a federal enhancement statute, Johnson, 135 S. Ct. at 2555–56.

Johnson did not discuss the mandatory Sentencing Guidelines’ residual clause at issue

here or residual clauses in other versions of the Sentencing Guidelines. See id. at 2555–

56.

Petitioner urges this court to cobble together a right by combining Johnson’s

reasoning with that of two other Supreme Court cases, Booker and Beckles. Petitioner’s

three-case extrapolation begins with the unobjectionable premise that Booker recognized

a constitutional distinction between mandatory Sentencing Guidelines and advisory

Sentencing Guidelines. Booker, 543 U.S. at 245. Moving on from Booker, Petitioner

argues that the mandatory Sentencing Guidelines cabined a sentencing judge’s discretion

in a manner that raises the same concerns animating the Supreme Court’s decision in

8
Johnson: denying fair notice to defendants and inviting arbitrary enforcement by judges.

Johnson, 135 S. Ct. at 2557. To prove this point, Petitioner points to several related cases

in the lower courts, which he claims serve as evidence that “the mandatory Guidelines

look and act like the ACCA.” Reply Br. at 18. Finally, Petitioner points out that the

Beckles Court carefully limited its holding to the advisory Sentencing Guidelines, thus, in

his view, leaving open the question of whether defendants could challenge sentences

imposed under the mandatory Sentencing Guidelines as void for vagueness.

Beckles, 137 S. Ct. at 895; see also id. at 903 n.4 (Sotomayor, J., concurring).

Yet Petitioner’s argument is self-defeating. If the Supreme Court left open the

question of whether Petitioner’s asserted right exists, the Supreme Court has not

“recognized” that right. See supra Part II.A.

While the residual clause at issue here mirrors the residual clause at issue in

Johnson, the Beckles Court made clear that the right announced in Johnson did not

automatically apply to all similarly worded residual clauses. See Beckles, 137 S. Ct. at

890; see also United States v. Mack, 855 F.3d 581, 585 (4th Cir. 2017). Beckles

specifically held that Johnson failed to invalidate the advisory Sentencing Guidelines’

former definition of “crime of violence,” U.S.S.G. § 4B1.2(a)(2) (2006), which was

“identically worded” to ACCA’s residual clause. Beckles, 137 S. Ct. at 890. As

Petitioner himself points out, the Beckles Court carefully crafted its holding to avoid

deciding whether the logic of Johnson applied outside the context of ACCA. See id.; see

also Mack, 855 F.3d at 585. Hence, Beckles confirms that the Supreme Court has yet to

9
recognize a broad right invalidating all residual clauses as void for vagueness simply

because they exhibit wording similar to ACCA’s residual clause. 6

In short, Petitioner’s cited cases do not recognize, and the dissent does not point

to, any right helpful to him. 7 Johnson only recognized that ACCA’s residual clause was

unconstitutionally vague, 135 S. Ct. at 2557; it did not touch upon the residual clause at

issue here. Likewise, Beckles only recognized that the advisory Sentencing Guidelines

are not amenable to vagueness challenges. 137 S. Ct. at 895. In a future case, the

Supreme Court may agree with an argument similar to Petitioner’s that because the

challenged residual clause looks like ACCA and operates like ACCA, it is void for

vagueness like ACCA. See id. at 892 n.2 (noting former circuit split). But Beckles

demonstrates that quacking like ACCA is not enough to bring a challenge within the

purview of the right recognized by Johnson. Accordingly, at least for purposes of

6
Prior to Beckles, the majority of circuits held that Johnson’s holding extended to
like-worded residual clauses in versions of the advisory Sentencing Guidelines,
see Beckles, 137 S. Ct. at 892 n.2 (surveying cases), but Beckles ultimately reached the
contrary conclusion, id. at 890 (“This Court held in Johnson . . . that the identically
worded residual clause in the [ACCA] was unconstitutionally vague. Petitioner contends
that the [advisory] Guidelines’ residual clause is also void for vagueness. Because we
hold that the advisory Guidelines are not subject to vagueness challenges under the Due
Process Clause, we reject petitioner’s argument.”).
7
Petitioner’s motion would also be untimely to the extent it relies on the general
principles of due-process jurisprudence noted in Johnson, principles recognized long
before Johnson which provide too broad a standard to constitute a right or rule in other
similar contexts. Cf. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (noting, for
qualified-immunity purposes, that requiring a clearly established rule “depends
substantially upon the level of generality at which the relevant ‘legal rule’ is to be
identified,” and explaining that the right to “due process of law” is too abstract to provide
a workable standard in every case); Chaidez v. United States, 568 U.S. 342, 347–48
(2013).

10
collateral review, we must wait for the Supreme Court to recognize the right urged by

Petitioner. See Dodd, 545 U.S. at 359. We hold that Petitioner raises an untimely motion

in light of § 2255(f)(3)’s plain language, the narrow nature of Johnson’s binding holding,

and Beckles’s indication that the position advanced by Petitioner remains an open

question in the Supreme Court.

We note as well that our recent decision in In re Hubbard, 825 F.3d 225 (4th Cir.

2016), is not to the contrary. The relief sought by the Petitioner contrasts sharply with

the relief this court granted to the movant in Hubbard. Here, unlike in Hubbard, we

consider Petitioner’s arguments after authorizing this appeal through a certificate of

appealability and in a post-Beckles world. To grant Petitioner’s requested relief we must

confront the timeliness issue: whether he can rely on Johnson as a rule “recognized by

the Supreme Court.” 28 U.S.C. § 2255(f)(3).

The threshold certification inquiry in Hubbard concerned whether the movant

could make a prima facie showing that his application relied on “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)(2); see also id. § 2244(b)(3)(C);

In re Hubbard, 825 F.3d at 228; In re Vassell, 751 F.3d 267, 270–71 (4th Cir. 2014). In

this circuit, making such a prima facie showing requires the movant to meet a relatively

low bar, In re Hubbard, 825 F.3d at 231; and this court does not need to reach “the

question of the successive motion’s timeliness at the gatekeeping stage,” In re Vassell,

751 F.3d at 271.

11
Consistent with what is required of this court at the 28 U.S.C. § 2255(h)(2) stage,

we did not consider the timeliness of the movant’s underlying merits argument. Instead

we assumed, prior to the Supreme Court’s resolution of Beckles, that disagreement

among the federal courts of appeals on Johnson’s application to other residual clauses

was “likely . . . enough to establish that [the petitioner] has made ‘a sufficient showing of

possible merit to warrant a fuller exploration by the district court,’ . . . confirmed by [this

court’s] own ‘glance’ at the government’s merits arguments.” In re Hubbard, 825 F.3d at

232 (internal citation omitted).

Today’s narrow holding, like the holding of Hubbard, is compelled by this case’s

procedural posture. Had this case come before us on direct appeal, we might have had

the inferential license necessary to credit Petitioner’s interpretations of the negative

implications found in Booker, Johnson, and Beckles. Unfortunately for Petitioner, we

must consider his argument through the narrow lens that § 2255(f) affords this court on

collateral review.

III.

We are constrained from reading between the lines of Booker, Johnson, and

Beckles to create a right that the Supreme Court has yet to recognize. We are compelled

to affirm because only the Supreme Court can recognize the right which would render

Petitioner’s motion timely under § 2255(f)(3).

AFFIRMED

12
GREGORY, Chief Judge, dissenting:

To take advantage of 28 U.S.C. § 2255(f)(3), a petitioner must first assert a right

newly recognized by the Supreme Court. The majority reads this to mean that a

petitioner must assert the right as expressed in the Supreme Court’s narrow holding

newly recognizing that right, and where the four corners of that holding do not

encompass the precise facts underlying a petitioner’s claim, § 2255(f)(3) is not satisfied.

But § 2255(f)(3) contains no such requirement, and in my view, a newly recognized right

is more sensibly read to include the reasoning and principles that explain it. And where a

petitioner asserts that right, with all its contours and complexities, I would find that he or

she satisfies § 2255(f)(3).

In Johnson, the Supreme Court recognized a defendant’s right not to have his or

her sentence fixed by the application of the categorical approach to an imprecise and

indeterminate sentencing provision, and it struck down the ACCA’s residual clause as

inconsistent with that newly recognized right. Because Brown asserts that same right, I

would find his petition timely under § 2255(f)(3), even though his challenge is to the

residual clause under the mandatory Sentencing Guidelines, rather than the ACCA. I

would further find that Johnson compels the conclusion that the residual clause under the

mandatory Guidelines is unconstitutionally vague, and I would grant Brown’s petition

and remand for resentencing. Accordingly, I must respectfully dissent.

13
I.

On March 19, 2003, Brown pleaded guilty to possession with intent to distribute

fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii), and to carrying a firearm during the commission of a drug crime, in

violation of 18 U.S.C. § 924(c). J.A. 11. The presentence investigation report (“PSR”)

indicated that Brown was eligible for the career-offender enhancement under the

mandatory Sentencing Guidelines, based on his prior felony convictions for drug

trafficking and assault on a police officer while resisting arrest. J.A. 90. The PSR

assigned Brown an offense level of 34, J.A. 90, and a criminal history category of VI,

J.A. 96. According to the PSR, Brown’s mandatory Guidelines range was therefore 262–

327 months in prison for the drug charge, and 60 months to life for the firearm charge, to

run consecutively to any other term of imprisonment. J.A. 102.

The district court adopted the PSR’s factual findings and Guideline applications,

and on July 14, 2003, sentenced Brown to 322 months in prison. Brown’s sentence

consisted of 262 months for the drug charge and 60 months for the firearm charge. J.A.

8–9. Brown did not appeal his sentence.

On January 28, 2016—more than twelve years later—Brown filed a 28 U.S.C.

§ 2255 motion to vacate his sentence. J.A. 19–23. He argued that the Supreme Court’s

June 26, 2015 decision in Johnson v. United States, 135 S. Ct. 2551 (2015), rendered his

motion timely because he was asserting Johnson’s newly recognized right—made

retroactively applicable on collateral appeal—within one year of the Court’s recognition

of that right. See 28 U.S.C. § 2255(f)(3). In Johnson, the Court held that the ACCA’s

14
residual clause was unconstitutionally vague. Brown argued that the identically worded

provision in § 4B1.2(a)(2) of the mandatory Sentencing Guidelines was therefore also

void for vagueness. J.A. 20. And, he contended, because his assault conviction did not

constitute a crime of violence under the Guidelines’ force clause and was not an

enumerated offense—the only other avenues for categorizing a prior offense as a crime of

violence—his conviction did not qualify as a crime of violence under the mandatory

Guidelines. J.A. 20–22. 1 He further argued that his felony conviction for drug

trafficking was not a controlled substance offense. J.A. 22. Brown argued that in light of

these errors, he should not have been designated a career offender under the mandatory

Sentencing Guidelines and was entitled to resentencing.

The district court did not address whether Brown’s argument regarding the assault

claim was timely in light of Johnson, but instead went directly to the merits of the claim.

J.A. 38. The court concluded that because Brown’s assault conviction qualified as a

crime of violence under the Guidelines’ force clause, it did not need to reach the question

1
Under the mandatory Sentencing Guidelines, § 4B1.2(a) reads in full:
The term “crime of violence” means 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.

U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S. Sentencing Comm’n 20002)
(emphasis added). Section 4B1.2(a)(1) is the force clause, and § 4B1.2(a)(2) consists of
the enumerated-offense and residual clauses, with the residual clause denoted above in
italics.

15
of whether the conviction was a crime of violence under the Guidelines’ residual

clause—or whether the residual clause was still valid in light of Johnson. J.A. 40. And,

the court found, Brown’s argument that his drug trafficking conviction was not a

controlled substance offense was “not based at all on Johnson,” but rather was “simply an

unrelated claim that this Court erred when it sentenced Brown in 2003.” J.A. 42. The

court stated that Brown could not “use Johnson to revive an untimely, unrelated claim,”

and it rejected his drug trafficking claim without discussing the merits. J.A. 42. The

court dismissed Brown’s § 2255 motion with prejudice and declined to grant a certificate

of appealability (“COA”). J.A. 43. Brown timely appealed and moved for a COA.

This Court subsequently granted Brown a COA “on the issue of whether assault

on a police officer while resisting arrest under South Carolina law qualifies as a predicate

offense for career offender status in light of Johnson v. United States.” Order, United

States v. Thilo Brown, No. 16-7056 (4th Cir. Dec. 7, 2016), ECF No. 14. 2

II.

As the majority recognizes, a threshold issue for this Court is whether Brown’s

§ 2255 petition is timely. Under 28 U.S.C. § 2255(f)(1), a petitioner has one year from

the date that his or her judgment of conviction becomes final to attack the corresponding

sentence. Because Brown’s judgment of conviction has been final for more than a

decade, to bring a § 2255 petition, he must satisfy one of § 2255(f)’s other conditions for

2
Because we granted a COA only as to Brown’s argument regarding his assault
conviction, the question of whether his South Carolina drug trafficking conviction
constitutes a controlled substance offense under the Guidelines is not before this Court.

16
restarting the limitations period. Here, he relies on § 2255(f)(3), which permits a § 2255

petition that “assert[s] . . . a right that has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review” within one year of the

Supreme Court’s recognition of the right. 28 U.S.C. § 2255(f)(3); see also Dodd v.

United States, 545 U.S. 353, 357–58 (2005) (describing § 2255(f)(3) as requiring that

“(1) the right asserted by the applicant was initially recognized by this Court; (2) this

Court newly recognized the right; and (3) a court must have made the right retroactively

applicable to cases on collateral review” (internal quotation marks omitted)). Brown

argues that his § 2255 petition is timely because he filed it within one year of the

Supreme Court’s decision in Johnson, which the Court subsequently held retroactively

applicable to cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016).

I agree, and unlike the majority, I would find Brown’s petition timely.

It is well-settled in this Circuit that the Johnson Court recognized a new

constitutional rule, and that the Welch Court made that rule retroactively applicable to

cases on collateral review. In re Hubbard, 825 F.3d 225, 228 (4th Cir. 2016) (“Johnson

announced a new rule of constitutional law that the Supreme Court made retroactive

. . . .”). 3 And it is undisputed that Brown filed his § 2255 motion within one year of

3
Although the Welch Court describes Johnson as newly recognizing a “rule,”
rather than a “right,” courts, including this one, use the terms interchangeably. See, e.g.,
United States v. Powell, 691 F.3d 554 (4th Cir. 2012) (calling it “well settled” that the
analysis in Teague v. Lane, 489 U.S. 288 (1989), which discusses what constitutes a
newly recognized rule, governs whether a new right is retroactively applicable under
§ 2255(f)(3)). And courts have described Johnson as recognizing a new “right” for
purposes of § 2255(f)(3). See, e.g., Holt v. United States, 843 F.3d 720, 723 (7th Cir.
(Continued)
17
Johnson and Welch. The only question for this Court’s timeliness inquiry, then, is

whether Brown is asserting that particular right in his § 2255 petition. Or, said another

way, the question is whether Johnson newly recognized a right that would permit Brown

to collaterally attack, through § 2255(f)(3), the constitutionality of his sentence, which

was enhanced under the residual clause in the mandatory Sentencing Guidelines. A

logical starting point for the analysis is therefore the contours of the right that the

Supreme Court newly recognized in Johnson.

In Johnson, the Supreme Court held that the ACCA’s residual clause was

unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause.

Johnson, 135 S. Ct. at 2555–57. It based its holding on the principle that “the

Government violates [due process] 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,” id. at 2556,

finding that this principle applies to “statutes fixing sentences” just as it applies to

“statutes defining elements of crimes,” id. at 2557.

The ACCA’s residual clause defined a violent felony as “any crime punishable by

imprisonment for a term exceeding one year” that “otherwise involves conduct that

presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).

2016) (stating that in Welch, the Court “newly recognized the right [in Johnson] to be
retroactive” (emphasis added)). Therefore, I use “rule” and “right” interchangeably.

18
To determine whether a particular crime qualified as a violent felony under the ACCA’s

residual clause, courts had to use the “categorical approach” to “picture the kind of

conduct that the crime involves in ‘the ordinary case,’ and to judge whether that

abstraction present[ed] a serious potential risk of physical injury.” Johnson, 135 S. Ct. at

2557 (quoting James v. United States, 550 U.S. 192, 208 (2007), overruled by Johnson,

135 S. Ct. 2551). According to the Johnson Court, this inquiry “le[ft] grave uncertainty

about how to estimate the risk posed by a crime” and “tie[d] the judicial assessment of

risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory

elements.” Id. “The residual clause,” the Court concluded, “offer[ed] no reliable way to

choose . . . what [an] ‘ordinary’ [non-enumerated crime] involves.” Even more, said the

Court, “the residual clause le[ft] uncertainty about how much risk it takes for a crime to

qualify as a violent felony” by requiring courts “to apply an imprecise ‘serious potential

risk’ standard . . . to a judge-imagined abstraction.” Id. at 2558. In light of this, the

Court held that “the indeterminacy of the wide-ranging inquiry required by the residual

clause both denies fair notice to defendants and invites arbitrary enforcement by judges,”

and thus, “[i]ncreasing a defendant’s sentence under the clause denies due process of

law.” Id. at 2557.

In Welch, the Court held that Johnson is a substantive decision that is retroactively

applicable to cases on collateral review. 136 S. Ct. at 1265. Discussing Johnson’s

holding, the Welch Court explained that “[t]he vagueness of the residual clause rests in

large part on its operation under the categorical approach, . . . because applying [the

residual clause’s serious potential risk] standard under the categorical approach required

19
courts to assess the hypothetical risk posed by an abstract generic version of the offense.”

Id. at 1262. And because Johnson struck down the ACCA’s residual clause as void for

vagueness, the clause “can no longer mandate or authorize any sentence,” explained the

Welch Court. Id. at 1265. “Johnson establishes, in other words, that ‘even the use of

impeccable factfinding procedures could not legitimate’ a sentence based on that clause.”

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

Johnson and Welch established that a defendant’s due process rights are violated when a

court, using the categorical approach, fixes that defendant’s sentence based on a statute

that fails to provide proper notice of what constitutes criminal conduct and requires

courts to apply imprecise and indeterminate standards. See id; see also Johnson, 135 S.

Ct. at 2557.

Subsequently, in Beckles v. United States, 137 S. Ct. 886 (2017), the Supreme

Court sharpened the focus on this newly recognized right. There, the defendant filed a

§ 2255 motion to vacate his sentence on the grounds that after Johnson, the residual

clause in the advisory Guidelines’ definition of crime of violence was void for vagueness.

Id. at 891. 4 The Court, relying heavily on the distinction between the advisory and

mandatory Guidelines, held that “the advisory Guidelines are not subject to vagueness

4
Beckles’s § 2255 motion was timely because he brought it within one year of the
date on which his conviction became final. See 28 U.S.C. § 2255(f)(1); see also Beckles,
137 S. Ct. at 891; United States v. Beckles, 565 F.3d 832 (11th Cir. 2009), cert. denied,
558 U.S. 906 (2009). Therefore, he did not need to demonstrate—nor did the Supreme
Court need to consider—whether Johnson newly recognized a right that would allow
Beckles to collaterally attack his advisory Guidelines sentence pursuant to 28 U.S.C.
§ 2255(f)(3).

20
challenges under the Due Process Clause.” Id. at 890. This is because the advisory

Guidelines “merely guide the district court’s discretion,” the Court explained, and

“[u]nlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of

sentences.” Id. at 892. “Rather, the Guidelines advise sentencing courts how to exercise

their discretion within the bounds established by Congress.” Id. at 895. Accordingly, the

Court observed, “‘[t]he due process concerns that . . . require notice in a world of

mandatory Guidelines no longer’ apply.” Id. at 894 (alterations in original) (quoting

Irizarry v. United States, 553 U.S. 708, 714 (2008)).

The Beckles Court thus excluded from the scope of Johnson’s rule those

sentencing provisions that advise, but do not bind, a sentencing court. But in so doing,

the Court did not disturb Johnson’s holding that where a vague sentencing provision

operates to fix a defendant’s sentence under the categorical approach, it is susceptible to

attack under the Due Process Clause. Indeed, Justice Sotomayor, concurring in the

judgment, noted that the majority opinion “at least leaves open the question whether

defendants sentenced . . . during the period in which the Guidelines did fix the

permissible range of sentences . . . may mount vagueness attacks on their sentences.” Id.

at 903 n.4 (Sotomayor, J., concurring in the judgment) (internal citations and quotation

marks omitted). 5 Thus, the decision in Beckles, while shrinking the universe of

5
The majority reads Justice Sotomayor’s statement to mean that the question of
whether the Johnson Court newly recognized a right applicable to a challenge to the
mandatory Guidelines is still open. See Maj. Op. at 2 n.1, 6, 9. But Justice Sotomayor, in
her concurrence, suggested only that the merits of such a challenge have not yet been
decided. And she noted that the majority’s decision in Beckles did not foreclose such a
(Continued)
21
sentencing provisions susceptible to attack on vagueness grounds, reinforced that a

defendant has the due process right—as newly recognized in Johnson—not to have his

sentence fixed by the application of the categorical approach to an imprecise and

indeterminate sentencing provision.

With the scope of Johnson’s right in mind, I next consider whether Brown can rely

on that right to render his § 2255 motion timely.

Brown contends that because the mandatory Sentencing Guidelines’ residual

clause is identical in text to the ACCA’s residual clause, enhancements under both

clauses were applied using the categorical approach, and the clauses were similarly used

to fix, rather than advise, applicable sentencing ranges, he can rely on the right newly set

forth in Johnson to challenge his career-offender status under the mandatory Guidelines.

I consider his arguments in turn.

First, it is undisputed that the text of the residual clause under the mandatory

Guidelines is identical to the text of the ACCA’s residual clause. Both definitions

include felonies that “involve[] conduct that presents a serious potential risk of physical

injury to another.” U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. § 924(e)(2)(B)(ii). Section 4B1.2(a)(2)’s

challenge. But she said nothing of timeliness under § 2255(f)(3), or whether the Court’s
Beckles decision would in any way undermine a petitioner’s ability to bring a
§ 2255(f)(3) petition challenging the mandatory Guidelines in light of the right newly
recognized in Johnson.

22
text therefore supports Brown’s argument that Johnson’s newly recognized right is

applicable to a challenge to § 4B1.2(a)(2)’s residual clause.

Second, courts applied the categorical approach to both residual clauses. Like

courts applying the ACCA, “[i]n determining whether a prior conviction triggers a

sentence enhancement under the Sentencing Guidelines, ‘[courts] approach the issue

categorically, looking “only to the fact of conviction and the statutory definition of the

prior offense.”’” United States v. Montes-Flores, 736 F.3d 357, 364 (4th Cir. 2013)

(quoting United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013)).

Accordingly, when courts categorized prior felony convictions as crimes of violence

under the mandatory Guidelines’ residual clause, they had to engage in the same

“arbitrary enforcement,” Johnson, 135 S. Ct. at 2556, as courts enhancing a sentence

under the ACCA’s residual clause. This too supports Brown’s argument that Johnson is

applicable to his challenge here.

Finally, like the residual clause at issue in Johnson, the mandatory Guidelines’

residual clause imposed fixed, rather than advisory, sentencing ranges. When Brown was

sentenced, the Supreme Court had not yet decided United States v. Booker, 543 U.S. 220,

245 (2005) (establishing Sentencing Guidelines as “effectively advisory”), and the

Guidelines were still mandatory, operating like statutes to fix sentences. Before Booker,

the Guidelines had “the force and effect of laws,” id. at 234, and were considered

indistinguishable from state laws, id. at 233 (“[T]here is no distinction of constitutional

significance between the Federal Sentencing Guidelines and the Washington procedures

at issue in [Blakely v. Washington, 542 U.S. 296 (2004)].”). While judges theoretically

23
had the ability to depart from the Guidelines’ prescribed range, “departures [were] not

available in every case, and in fact [were] unavailable in most.” Id. at 234. 6 Instead, in

most cases, the Guidelines took into account nearly all relevant factors for determining an

individual’s sentence, such that “no departure [was] legally permissible” and “the judge

[wa]s bound to impose a sentence within the Guidelines range.” Id. Like the ACCA’s

residual clause, then, the mandatory Guidelines’ residual clause bound courts to impose

sentences within the prescribed range.

The Court’s decision in Beckles, while foreclosing void-for-vagueness challenges

to the residual clause under the advisory Guidelines, shows that sentencing under the

ACCA’s residual clause and sentencing under the mandatory Guidelines’ residual clause

was the same. Indeed, the Court’s decision in Beckles rested on the distinction between

the mandatory and advisory Guidelines, with the advisory nature of the post-Booker

Guidelines dictating a result different than in Johnson. The Beckles Court explained that,

unlike the ACCA, “[t]he advisory Guidelines . . . do not implicate the twin concerns

underlying vagueness doctrine—providing notice and preventing arbitrary enforcement.”

Beckles, 137 S. Ct. at 894. This is because “even if a person behaves so as to avoid an

enhanced sentence under the career-offender guideline, the sentencing court retains

discretion to impose the enhanced sentence,” id., and the advisory Guidelines only

6
Similarly, when district courts fix sentences under the ACCA, they are prohibited
from sentencing a defendant below the statutory mandatory minimum, save for the
relatively rare cases where the government has filed a substantial assistance motion
pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or where the defendant qualifies
for a safety-valve reduction under 18 U.S.C. § 3553(f).

24
“advise sentencing courts how to exercise their discretion within the bounds established

by Congress” and do not “‘establish[] minimum and maximum penalties for [any]

crime,’” id. at 895 (quoting Mistretta v. United States, 488 U.S. 361, 396 (1989)). This is

entirely different from the mandatory Guidelines, which “b[ou]nd judges and courts in

the exercise of their uncontested responsibility to pass sentence in criminal cases,”

Mistretta, 488 U.S. at 391, and “ha[d] the force and effect of laws, prescribing the

sentences criminal defendants are to receive,” id. at 413 (Scalia, J., dissenting). The

considerations underlining the Court’s decision in Beckles are simply not implicated here,

where the residual clause operated just like a statute to fix Brown’s sentence. If anything,

then, Beckles clarifies Johnson’s animating principles and affirms that Johnson’s newly

recognized right does apply to challenges to the residual clause under the mandatory

Guidelines. Thus, contrary to the majority’s view, Brown need not “cobble together a

right by combining these [cases],” Maj. Op. at 8—the right he asserts stems from

Johnson. Beckles and Booker merely reinforce that the right newly recognized in

Johnson is indeed applicable to Brown’s claim.

Ultimately, that the residual clause at issue here is contained in the mandatory

Sentencing Guidelines, rather than the ACCA, is a distinction without a difference for

purposes of this Court’s timeliness inquiry. The clauses’ text is identical, and courts

applied them using the same categorical approach and for the same ends—to fix a

defendant’s sentence. The right newly recognized in Johnson is therefore clearly

applicable to Brown’s claim, because the mandatory Guidelines’ residual clause presents

the same problems of notice and arbitrary enforcement as the ACCA’s residual clause at

25
issue in Johnson. The majority, by finding that a defendant sentenced under a nearly

identical provision with nearly identical effects cannot assert the right newly recognized

in Johnson, unnecessarily tethers that right to the ACCA itself, when the right clearly

stems from the due process protections that prohibit such sentencing schemes more

generally. This narrow view divests Johnson’s holding from the very principles on which

it rests and thus unduly cabins Johnson’s newly recognized right.

I would find that Brown is asserting the right newly recognized in Johnson. And

because this Court found that “the rule in Johnson is substantive with respect to its

application to the [mandatory] Sentencing Guidelines and therefore applies

retroactively,” Hubbard, 825 F.3d at 235, I would find that Brown satisfies all of

§ 2255(f)(3)’s requirements. I would thus find his petition timely.

III.

Lastly, I would find in favor of Brown on the merits of his claim. As previously

discussed, first, the text of § 4B1.2(a)(2)’s residual clause is identical to the text of the

ACCA’s residual clause, which the Supreme Court held unconstitutionally vague in

Johnson. Second, courts enhanced sentences under § 4B1.2(a)(2)’s residual clause using

the categorical approach, just as they did when enhancing sentences under the ACCA’s

residual clause. And third, like the ACCA, the mandatory Guidelines fixed minimum and

maximum sentences and bound courts to sentence within particular ranges. This case

diverges from Johnson only because Brown’s sentence was enhanced under the

mandatory Guidelines, rather than the ACCA, but I can discern no principled reason that

26
such a distinction should dictate an outcome different than in Johnson, particularly where

the concerns outlined in Beckles are not implicated.

As the Court recognized in Johnson, defendants have a due process right not to

have their sentences enhanced by the application of the categorical approach to an

imprecise and indeterminate sentencing provision. 135 S. Ct. at 2558. And as the Court

made clear in Beckles, when such sentencing provisions set a fixed, rather than advisory,

sentence under the categorical approach, they are void for vagueness. See Beckles, 137 S.

Ct. at 892. Here, the district court applied the categorical approach to § 4B1.2(a)(2)’s

residual clause, which fixed Brown’s sentencing range—precisely what the Johnson

Court said runs afoul of the Due Process Clause. These cases therefore compel the

conclusion that under the mandatory Guidelines, § 4B1.2(a)(2)’s residual clause is

unconstitutionally vague and cannot be the basis for enhancing Brown’s sentence.

For all of these reasons, I would grant Brown’s § 2255 motion and remand for

resentencing.