Charles Edward Jones v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 14, 2023
• Docket: 20-13365
• Status: Published

Opinion

USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 1 of 54

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-13365 ____________________

CHARLES EDWARD JONES, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:16-cv-22268-KMM ____________________

Before WILSON, LUCK, and LAGOA, Circuit Judges. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 2 of 54

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LUCK, Circuit Judge: A federal prisoner may move to vacate, set aside, or correct his sentence if it violates the Constitution or laws of the United States, exceeds the maximum sentence allowed by law, was en- tered without jurisdiction, or is otherwise subject to collateral re- view. 28 U.S.C. § 2255(a); R. Governing § 2255 Proceedings 1(a). But there are strict limits on second or successive motions. This case involves one of those limits. For the federal courts to have jurisdiction to consider the prisoner’s second or successive motion, it must be based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 1 28 U.S.C. § 2255(h)(2). The issue here is whether the Supreme Court has announced a “new rule of constitutional law” that ap- plies to the residual clause in 18 U.S.C. section 3559—the three- strikes law. We conclude that it hasn’t. And because it hasn’t, the district court did not have jurisdiction to decide the merits of Charles Jones’s second section 2255 motion to vacate his life sen- tence under the three-strikes law. We therefore vacate the district

1 A second or successive motion can also be based on “newly discovered evi- dence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact- finder would have found the movant guilty of the offense.” § 2255(h)(1). But, because the motion in this case wasn’t based on newly discovered evidence, section 2255(h)(1) isn’t at issue here. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 3 of 54

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court’s order and remand for Jones’s motion to be dismissed for lack of jurisdiction. FACTUAL BACKGROUND AND PROCEDURAL HISTORY In 2002, the grand jury indicted Jones for (1) armed bank robbery, in violation of 18 U.S.C. section 2113(a) and (d); (2) know- ingly carrying, using, possessing, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. sec- tion 924(c)(1)(A)(iii); and (3) possessing a firearm as a felon, in vio- lation of 18 U.S.C. section 922(g)(1). The government then filed a notice that Jones qualified for the enhanced sentence under section 3559. Section 3559—known as the three-strikes law—provides that a person convicted of a “serious violent felony” shall receive a mandatory life sentence if he has previously been convicted of “[two] or more serious violent felonies,” so long as “each serious violent felony . . . used as a basis for sentencing under this subsec- tion, other than the first, was committed after the defendant’s con- viction of the preceding serious violent felony.” Id. § 3559(c)(1)(A)(i), (B). The government’s enhancement notice cited two of Jones’s prior convictions as predicate “serious violent felonies”: (1) a 1988 Florida conviction for burglary and robbery; and (2) a 2001 Florida conviction for burglary with an assault or battery. There are three different ways a prior conviction can qualify as a “serious violent felony” under the three-strikes law. First, the three-strikes law’s enumerated offenses clause lists specific offenses USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 4 of 54

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that qualify, like robbery, manslaughter, and murder—but not bur- glary. Id. § 3559(c)(2)(F)(i). Second, the elements clause makes any offense punishable by at least ten years in prison “that has as an element the use, attempted use, or threatened use of physical force against the person of another” a serious violent felony. Id. § 3559(c)(2)(F)(ii). And third, the residual clause provides that any offense punishable by at least ten years in prison “that, by its na- ture, involves a substantial risk that physical force against the per- son of another may be used in the course of committing the of- fense” is a serious violent felony. Id. The government’s enhance- ment notice didn’t say which clause (or clauses) it was relying on. Jones went to trial in 2003, and the jury convicted him as charged. The presentence investigation report calculated that Jones would’ve had a sentencing guideline range of 360 months’ imprisonment to life but, because he faced a mandatory life sen- tence under the three-strikes law for his armed bank robbery con- viction, the guideline range was life. The district court sentenced Jones to life in prison for the armed bank robbery, a concurrent 360 months in prison for pos- sessing a firearm as a felon, and a consecutive 120 months for knowingly carrying, using, possessing, and discharging a firearm during and in relation to a crime of violence. The district court also didn’t say whether Jones’s predicate convictions qualified as serious violent felonies under the three-strikes law’s elements clause, resid- ual clause, or both. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 5 of 54

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Jones appealed his convictions and sentences, and we af- firmed. United States v. Jones, 90 F. App’x 383 (11th Cir. 2003) (ta- ble). He also filed a section 2255 motion in 2005, raising claims that are not relevant here. The district court denied the 2005 motion on the merits, and we denied Jones’s request for a certificate of ap- pealability. That’s how Jones’s case stood until 2015. That year, the Su- preme Court ruled that the residual clause in a different recidivist statute—the Armed Career Criminal Act—was unconstitutionally vague. See Johnson v. United States, 576 U.S. 591, 597 (2015). Fol- lowing Johnson, Jones filed an application requesting an order au- thorizing the district court to consider a second section 2255 mo- tion. He sought to argue that, applying Johnson, the three-strikes law’s residual clause was also unconstitutionally vague. We granted Jones’s application as to this claim. Jones then filed in the district court a second section 2255 motion—the motion at issue here. He argued that, because the three-strikes law’s residual clause was “very similar” to the residual clause in the Armed Career Criminal Act, it was “likewise uncon- stitutional in light of Johnson.” And, because his prior conviction for burglary with an assault or battery conviction didn’t satisfy the three-strikes law’s elements or enumerated offenses clauses, it wasn’t a valid predicate offense and he didn’t qualify for the en- hanced life sentence. In November 2017, the district court denied Jones’s motion. It concluded that, because we said in Ovalles v. United States, 861 USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 6 of 54

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F.3d 1257 (11th Cir. 2017), that the residual clause in 18 U.S.C. sec- tion 924(c) wasn’t unconstitutionally vague, the same logic applied to the three-strikes law given that the two statutes and their resid- 2 ual clauses were similar. The district court granted Jones a certif- icate of appealability as to whether Johnson applied to the three- strikes law’s residual clause. Jones appealed the denial of his motion. But, while the ap- peal was pending, the government moved to remand his case based 3 on Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017). The government argued that “the existing record d[id] not indicate how or why Jones’s original sentencing court classified either of his two predicate offenses as ‘serious violent felonies’ for purposes of the three-strikes enhancement,” and a remand was proper because “[t]he district court [wa]s best-positioned to address that question in the first instance.” We granted the government’s motion and

2 In Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018) (en banc) (Ovalles II), we concluded that section 924(c)(3)(B) required a conduct-based approach to determine whether an offense was a crime of violence within the meaning of the statute and, therefore, the statute wasn’t unconstitutionally vague. Id. at 1252. Our decision in Ovalles II was overruled by the Supreme Court in United States v. Davis, 139 S. Ct. 2319 (2019), which ruled that section 924(c)(3)(B) re- quired a categorical approach, rather than a conduct-based approach, and, therefore, was unconstitutionally vague. Id. at 2327, 2336. 3 In Beeman, we concluded (among other things) that a prisoner challenging (via section 2255) the enhancement of his sentence under the Armed Career Criminal Act had the burden of proving “that it was more likely than not” that “he in fact was sentenced as an armed career criminal under the residual clause.” 871 F.3d at 1225. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 7 of 54

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remanded for the district court to reconsider Jones’s second section 2255 motion under the Beeman standard. On remand, Jones filed a brief addressing Beeman. He argued that the enhancement of his sentence under the three-strikes law was based solely on the residual clause. Jones maintained that his 2001 conviction for burglary with an assault or battery could qual- ify as a predicate offense only under the three-strikes law’s residual clause because, at the time of his sentencing, a burglary conviction didn’t qualify under either the enumerated offenses or elements clauses. The government responded that Jones couldn’t meet his burden under Beeman because the record was silent as to which clause the district court relied on to conclude that his burglary with an assault or battery conviction was a predicate offense, and “there was a viable or possible avenue” for the district court to apply the three-strikes law’s elements clause at the time of Jones’s sentenc- ing. This was so, the government argued, because Jones’s burglary conviction had an “accompanying assault or battery,” and the dis- trict court “may have concluded that both of those offenses had as an element the use, attempted use, or threatened use of physical force against the victim,” satisfying the statute’s elements clause. The district court entered an order again denying Jones’s second section 2255 motion. The district court found that Jones met his burden under Beeman because—based on its interpretation of our caselaw at the time of Jones’s sentencing—burglary “was a ‘serious violent felony’ under only the residual clause.” But the USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 8 of 54

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district court declined to declare the three-strikes law’s residual clause unconstitutionally vague. The district court said that no court of appeals had applied the Supreme Court’s decisions in John- son, Sessions v. Dimaya, 138 S. Ct. 1204 (2018), or United States v. Da- vis, 139 S. Ct. 2319 (2019), to the statute’s residual clause and it would not do so without controlling precedent. Because this issue was “unsettled,” the district court again granted Jones a certificate of appealability as to whether the three-strikes law’s residual clause was unconstitutionally vague. This is Jones’s appeal. Rather than continue to oppose Jones’s motion, the government now concedes that the three- strikes law’s residual clause is unconstitutionally vague. The gov- ernment doesn’t argue an alternative basis for affirmance and in- stead maintains that we should reverse the denial of Jones’s section 2255 motion. We appointed amicus curiae counsel to defend the district court’s judgment. STANDARD OF REVIEW “In a proceeding on a motion to vacate, set aside, or correct sentence, we review the district court’s factual findings for clear er- ror and legal determinations de novo.” United States v. Pickett, 916 F.3d 960, 964 (11th Cir. 2019) (citing Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008)). Although neither the government nor the amicus curiae raised the issue, we’re obligated to address the district court’s jurisdiction under section 2255(h)—a legal question we consider de novo—before reaching the merits of Jones’s USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 9 of 54

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motion. See Randolph v. United States, 904 F.3d 962, 964 (11th Cir. 2018); Granda v. United States, 990 F.3d 1272, 1283 (11th Cir. 2021). DISCUSSION Jones and the amicus curiae focus their briefs on the merits of Jones’s second section 2255 motion—namely, whether the three-strikes law’s residual clause is unconstitutionally vague and, if so, whether Jones met his burden under Beeman. But we can’t address those issues without first resolving a threshold question: whether the district court had jurisdiction to consider Jones’s sec- ond section 2255 motion. We conclude that the district court lacked jurisdiction be- cause Jones’s motion failed to satisfy the requirements of 28 U.S.C. section 2255(h)(2). We break our analysis into five parts. First, we discuss the jurisdictional requirements of section 2255(h)(2). Sec- ond, we review the constitutional rules announced by the Supreme Court in Johnson, Dimaya, and Davis. Third, we consider how we’ve interpreted section 2255(h)(2)’s new-constitutional-rule re- quirement and, in particular, how, after Johnson, we’ve applied that requirement to motions challenging other residual clauses. Fourth, we apply these principles to Jones’s case and conclude that he failed to establish that his second section 2255 motion met the new-constitutional-rule requirement of section 2255(h)(2). And fifth, we address some of the points raised by the dissenting opin- ion. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 10 of 54

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Second or Successive Section 2255 Motions We begin with the text of section 2255. Section 2255 allows a federal prisoner to move “to vacate, set aside[,] or correct [his] sentence.” § 2255(a). A prisoner can challenge his sentence on the ground that it “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or [that the sentence] is otherwise subject to collateral attack.” Id. But section 2255 strictly limits a prisoner’s ability to file a second or successive motion. The statute provides that “[a] second or successive motion must be certified as provided in [28 U.S.C.] section 2244 by a panel of the appropriate court of appeals to con- tain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously un- available.” Id. § 2255(h)(2). Where a prisoner’s second or succes- sive motion is based on a new rule of constitutional law, the pris- oner has a one-year limitations period to file the motion, running from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Id. § 2255(f)(3). And section “2255(h) incorporates the whole range of proce- dures and limitations set out in [section] 2244(b)(1), (b)(3), and (b)(4).” In re Bradford, 830 F.3d 1273, 1276 (11th Cir. 2016). So sec- tion 2255(h) doesn’t only “incorporate[] the requirement in USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 11 of 54

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[section] 2244(b)(3)(A) that a[ prisoner] must obtain authorization from this Court in order to file a [second or] successive [section] 2255 motion.” Id.; see also § 2244(b)(3)(A) (“Before a second or suc- cessive application permitted by this section is filed in the district court, the [prisoner] shall move in the appropriate court of appeals for an order authorizing the district court to consider the applica- tion.”). Section 2255(h) also incorporates section 2244(b)(3)(C)’s requirement that a prisoner, at the appeals-court authorization stage, “make a prima facie showing that the application” to file a second or successive motion “satisfies the other requirements con- tained in section 2244(b).” Bradford, 830 F.3d at 1276 (cleaned up); see also § 2244(b)(3)(C) (“The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.”). That includes a prima facie showing that the prisoner’s motion would satisfy sec- tion 2255(h)(2)’s “new rule of constitutional law” requirement. See In re Pinder, 824 F.3d 977, 978–79 (11th Cir. 2016). But this prima facie showing only gets a prisoner through the district court’s door. That is, although a prisoner can file a sec- ond or successive section 2255 motion after we’ve authorized it, the district court owes no “deference to our order authorizing” the prisoner to file that motion. Randolph, 904 F.3d at 965. Instead, “the district court has jurisdiction to determine for itself if the mo- tion relies on ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previ- ously unavailable.’” Id. at 964 (quoting § 2255(h)(2)). At that point, USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 12 of 54

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“the district court is to decide the section 2255(h) issues fresh, or in the legal vernacular, de novo.” Id. at 965 (cleaned up); see also In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013) (explaining that, because our conclusion that a prisoner has “made a prima facie showing that his application satisfies sections 2255(h) and 2244(b)(3)(C)” is “a limited determination,” the district court must decide for itself whether the prisoner “has established the statutory requirements for filing a second or successive motion” (cleaned up)). Importantly, section 2255(h)(2)’s requirements are jurisdic- tional. So if—after fresh consideration of the section 2255(h) is- sues—the district court decides the prisoner’s “motion meets those requirements, [then] the district court has jurisdiction to decide whether any relief is due under the motion”; conversely, “if the motion does not meet the [section] 2255(h) requirements, [then] the court lacks jurisdiction to decide whether the motion has any merit.” Randolph, 904 F.3d at 964. If the section 2255(h) require- ments are not met, the district court must dismiss the motion for lack of jurisdiction. See Bradford, 830 F.3d at 1276 (explaining that, in the context of second or successive section 2255 motions, we have adopted the decision in Jordan v. Secretary, Department of Cor- rections, 485 F.3d 1351 (11th Cir. 2007), “which held that [section] 2244(b)(4) requires a district court to dismiss a claim that this Court has authorized . . . if that claim fails to satisfy the requirements of [section] 2244”). Just as the district court has to take a fresh look at section 2255(h)’s jurisdictional requirements even after our order USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 13 of 54

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authorizing a second or successive motion, we too must consider anew the jurisdictional requirements on appeal. Indeed, “[a]fter the district court looks at the section 2255(h) requirements de novo, our first hard look at whether the section 2255(h) require- ments actually have been met will come, if at all, on appeal from the district court’s decision.” In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (cleaned up). In short, Jones’s second section 2255 motion could only be heard by the district court if it was based on “a new rule of consti- tutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h)(2). If Jones failed to meet those requirements, then the district court had to dismiss his motion for lack of jurisdiction. See Randolph, 904 F.3d at 964; Bradford, 830 F.3d at 1276. Although the district court didn’t expressly consider whether Jones’s motion satisfied section 2255(h)(2), we must now take a “hard look” at whether section 2255(h)(2)’s requirements were met here. See Moore, 830 F.3d at 1271 (citation omitted). The Decisions in Johnson, Dimaya, and Davis But, before we apply section 2255(h)(2) to Jones’s case, it’s helpful to review the cases he relies on to satisfy the new-constitu- tional-rule requirement. Jones contends that Johnson, Dimaya, and Davis—which found the residual clauses in the Armed Career Criminal Act, 18 U.S.C. section 16(b), and 18 U.S.C. section 924(c), unconstitutionally vague—announced new rules of constitutional USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 14 of 54

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law satisfying section 2255(h)(2) for purposes of his challenge to the three-strikes law’s residual clause. Johnson Johnson involved 18 U.S.C. section 924(e)(2)(B)(ii), the Armed Career Criminal Act’s residual clause. This enhancement statute applied to a person with three or more prior convictions for a “serious drug offense” or “violent felony” who violated 18 U.S.C. section 922(g) by unlawfully possessing a firearm. § 924(e)(1). The Act’s residual clause defined “violent felony” as any felony that “in- volve[d] conduct that present[ed] a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii). The Supreme Court had, since 1990, “use[d] a framework known as the categorical approach” to determine whether a con- viction fell within the Act’s residual clause. Johnson, 576 U.S. at 596 (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). “Under the categorical approach, a court assesse[d] whether a crime qualifie[d] as a violent felony in terms of how the law define[d] the offense and not in terms of how an individual offender might have com- mitted it on a particular occasion.” Id. (cleaned up). Thus, deciding whether a crime fell within the residual clause “require[d] a court to picture the kind of conduct that the crime involve[d] in ‘the or- dinary case,’ and to judge whether that abstraction present[ed] a serious potential risk of physical injury.” Id. (citation omitted). The Johnson Court ruled that the “ordinary case” approach required by the residual clause made it unconstitutionally vague. Id. at 597. This was because, the Supreme Court explained, “the USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 15 of 54

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residual clause le[ft both] grave uncertainty about how to estimate the risk posed by a crime”—because “[i]t tie[d] the judicial assess- ment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements”—as well as “uncertainty about how much risk it t[ook] for a crime to qualify as a violent felony.” Id. at 597–98. Because judicial speculation about both the risk posed by an offense’s “ordinary case” and the quantum of risk necessary “for a crime to qualify as a violent felony” was unpredict- 4 able and arbitrary, the residual clause violated due process. Id. Dimaya In Dimaya, the Supreme Court considered the application of Johnson to 18 U.S.C. section 16(b), which defined “crime of vio- lence” for other federal statutes—including, in Dimaya’s case, as incorporated into the Immigration and Naturalization Act’s defini- tion of “aggravated felony” in 8 U.S.C. section 1101(a)(43)(F). 138 S. Ct. at 1211. Section 16(b)’s residual clause defined “crime of vi- olence” as any felony offense “that, by its nature, involve[d] a sub- stantial risk that physical force against the person or property of another m[ight] be used in the course of committing the offense.” § 16(b). Like the Armed Career Criminal Act’s residual clause, courts used the categorical approach to determine whether “a con- viction posed the substantial risk that [section] 16(b) demand[ed].”

4 In Welch v. United States, 578 U.S. 120 (2016), the Supreme Court concluded that Johnson had announced a new constitutional rule that applied retroac- tively. Id. at 135. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 16 of 54

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Dimaya, 138 S. Ct. at 1211 (citation omitted). Thus, this approach to section 16(b) “require[d] a court to ask whether ‘the ordinary case’ of an offense pose[d] the requisite risk.” Id. (citation omitted). The Dimaya Court ruled that, under a “straightforward ap- plication” of Johnson, section 16(b)’s residual clause was unconsti- tutionally vague. Id. at 1213–16. Like the Armed Career Criminal Act’s residual clause, section 16(b)’s residual clause “call[ed] for a court to identify a crime’s ‘ordinary case’ in order to measure the crime’s risk.” Id. at 1215. And like the Armed Career Criminal Act’s residual clause—with its “serious potential risk of physical in- jury” threshold—the section 16(b) residual clause’s “substantial risk [of] physical force” threshold left district courts facing “uncertainty about the level of risk that ma[de] a crime ‘violent.’” Id. Section 16(b)’s “formulation,” the Dimaya Court said, wasn’t “any more de- terminate than the [Armed Career Criminal Act’s].” Id. The ap- proach called for by section 16(b) therefore failed to “work in a way consistent with due process.” Id. at 1216. Davis Finally, in Davis, the Supreme Court addressed the constitu- tionality of 18 U.S.C. section 924(c)’s residual clause. This statute applied to defendants who used a firearm in connection with cer- tain federal crimes. § 924(c)(1)(A). Its residual clause encompassed felonies “that[,] by [their] nature, involve[d] a substantial risk that physical force against the person or property of another m[ight] be used in the course of committing the offense.” Id. § 924(c)(3)(B). USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 17 of 54

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The Supreme Court found this residual clause unconstitutionally vague too. Davis, 139 S. Ct. at 2336. The Davis Court concluded that by looking at the “nature” of the predicate conviction “the statutory text command[ed] the categorical approach.” Id. at 2327–28. Davis also observed that sec- tion 924(c)’s residual clause was “almost identical to the language of [section] 16(b), . . . [a]nd we normally presume that the same lan- guage in related statutes carries a consistent meaning.” Id. at 2329. Because section 924(c)(3)(B) required the categorical approach, ra- ther than the “case-specific approach” the government advocated for, the Davis Court concluded that the reasoning of Johnson and Dimaya applied to its residual clause. Id. at 2326–27. Applying The New-Constitutional-Rule Requirement After Johnson We turn now to how we’ve interpreted and applied section 2255(h)(2)’s new-constitutional-rule requirement, paying particu- lar attention to how we’ve applied the requirement to second or successive section 2255 motions invoking Johnson to challenge other residual clauses. Those cases, it turns out, show how we should approach Jones’s motion invoking Johnson (and Dimaya and Davis) to challenge the three-strikes law’s residual clause. The New-Constitutional-Rule Requirement We begin, briefly, with some foundational principles about “new rules.” For section 2255(h)(2) purposes, only the Supreme Court can announce a new rule of constitutional law. See In re Bowles, 935 F.3d 1210, 1219 (11th Cir. 2019) (“The existence of a USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 18 of 54

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‘new rule of constitutional law, made retroactive to cases on col- lateral review by the Supreme Court,’ depends solely on Supreme Court decisions . . . .”); In re Wright, 942 F.3d 1063, 1065 (11th Cir. 2019) (denying application to file a second section 2255 motion rais- ing a double jeopardy claim partly because the cases the prisoner relied on “were decided by courts other than the Supreme Court”); see also Woods v. Warden, Holman Corr. Facility, 951 F.3d 1296, 1298 (11th Cir. 2020) (“[S]ection 2244(b) allows us to authorize the filing of a second petition only when the Supreme Court recognizes a ‘new rule of constitutional law . . . .’”). “‘[A] case announces a new rule when it breaks new ground or imposes a new obligation’ on the government.” In re Hammoud, 931 F.3d 1032, 1037 (11th Cir. 2019) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). “A rule is ‘new’ if the result of the case an- nouncing the rule ‘was not dictated by precedent existing at the time the defendant’s conviction became final.’” Id. (quoting Teague, 489 U.S. at 301). “[E]ven where a court applies an already existing rule, its decision may create a new rule by applying the existing rule in a new setting, thereby extending the rule ‘in a man- ner that was not dictated by [prior] precedent.’” Id. at 1038 (quot- ing Stringer v. Black, 503 U.S. 222, 228 (1992)). Jones argues that the “clear rule of unconstitutional vague- ness” announced in Johnson (and “repeated and applied in Dimaya and Davis”) transcends the statutes at issue in those cases and ap- plies to the three-strikes law’s residual clause. But we’ve made USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 19 of 54

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clear, in two lines of cases, that the new rule announced in Johnson did not necessarily apply to other, almost-identical residual clauses. Post-Johnson Challenges to the Career Offender Guideline’s Residual Clause The first line of cases is the application of Johnson to the ca- reer offender sentencing guideline’s residual clause. A defendant is a career offender for purposes of the sentencing guidelines where the underlying “offense of conviction is a felony that is either a crime of violence or a controlled substance offense” and “the de- fendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a) (2021). Prior to August 2016, the guidelines defined “crime of vio- lence” to include any felony “involv[ing] conduct that present[ed] a serious potential risk of physical injury to another”—language identical to the Armed Career Criminal Act’s residual clause. Com- 5 pare id. § 4B1.2(a) (2015), with § 924(e)(2)(B)(ii). In In re Griffin, 823 F.3d 1350 (11th Cir. 2016), the prisoner sought leave to file a second section 2255 motion raising a claim that, under Johnson, “his sentence was improperly enhanced under the career offender guideline.” Id. at 1352. We denied the applica- tion. Id. at 1356. We began by explaining that “it is not enough for a federal prisoner to simply identify Johnson and the residual clause

5 The sentencing commission removed the residual clause from guideline sec- tion 4B1.2(a) after Johnson. See Supplement to 2015 Guidelines Manual, § 4B1.2(a) (2016). USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 20 of 54

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as the basis for the claim or claims he seeks to raise in a second or successive [section] 2255 motion”; rather, “he also must show that he was sentenced under the residual clause in the [Armed Career Criminal Act] and that he falls within the scope of the new substan- tive rule announced in Johnson.” Id. at 1354. We then concluded that the prisoner failed to make a prima facie showing that his claim satisfied section 2255(h)(2)’s requirements. Id. at 1354–56. The prisoner, we said, “was not sentenced under the [Armed Career Criminal Act] or beyond the statutory maximum for his drug crime.” Id. at 1354. Instead, his case “involve[d] only the ca- reer offender guideline.” Id. And, more importantly, even if John- son applied to the sentencing guidelines, that still would not satisfy section 2255(h)(2)’s requirements in the prisoner’s case. Id. at 1355. This was because, we explained, “[a] rule that the [sentencing g]uidelines must satisfy due process vagueness standards . . . differs fundamentally and qualitatively from a holding that a particular criminal statute or the [Armed Career Criminal Act] sentencing statute—that increases the statutory maximum penalty for the un- derlying new crime—is substantively vague.” Id. at 1356. We expanded on Griffin’s reasoning in In re Anderson, 829 F.3d 1290 (11th Cir. 2016). The Anderson prisoner also sought to challenge, in a second section 2255 motion, the sentencing guide- lines’ career offender provision “based on the new rule of constitu- tional law announced in Johnson.” Id. at 1291. We denied the ap- plication. Id. at 1292. We recognized that the Supreme Court had granted certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016), USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 21 of 54

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a case presenting the question whether the residual clause in the career offender guideline was unconstitutionally vague. Anderson, 829 F.3d at 1292–93. “[I]f the Supreme Court holds in Beckles, which is a [section] 2255 case, that the [section] 4B1.2(a)(2) residual clause is unconstitutional,” we explained, then “that decision will establish ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previ- ously unavailable.’” Id. at 1293 (quoting § 2255(h)(2)). “If that hap- pens, [the prisoner] will be able to file a new application seeking certification to file a second or successive [section] 2255 motion based not on Johnson but on Beckles.” Id.; see also Bradford, 830 F.3d at 1279 (“If the Supreme Court decides in Beckles, or some other decision, that the residual clause of [section] 4B1.2(a)(2) of the ca- reer offender provisions of the guidelines is unconstitutional, [the prisoner] will have a new claim under [section] 2255(h)(2) for which he can then file an application to file a second or successive [section] 2255 motion.” But, we said, “[i]t will not be a John- son/Welch claim”; it will be “a Beckles claim.” (footnote and empha- 6 sis omitted)). Post-Johnson Challenges to Section 924(c)’s Residual Clause The second line of cases is Johnson’s application to section 924(c)’s residual clause. We begin with In re Smith, 829 F.3d 1276

6 In Beckles v. United States, the Supreme Court concluded that the advisory sentencing guidelines “are not subject to vagueness challenges under the Due Process Clause.” 580 U.S. 256, 259 (2017). USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 22 of 54

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(11th Cir. 2016), where we considered—following the Supreme Court’s decision in Johnson but before its decision in Davis—a pris- oner’s application for leave to file a second section 2255 motion challenging his section 924(c) conviction. Id. at 1277–78. The Smith prisoner “assert[ed] that his claim relie[d] upon the new rule of con- stitutional law announced in Johnson.” Id. at 1277. We were skep- tical about the application of Johnson’s new rule to a section 924(c) conviction in the context of a second section 2255 motion. “Johnson rendered the residual clause of the [Armed Career Criminal Act] invalid,” but “[i]t said nothing about the validity of the definition of a crime of violence found in [section] 924(c)(3).” Id. at 1278. And it was “not self-evident,” we said, “that the rule promulgated in Johnson . . . mean[t] that [section] 924(c)’s residual clause must like- wise suffer the same [constitutional] fate” as the Armed Career Criminal Act’s. Id. at 1279. Rather, we observed that “there [we]re good reasons to question an argument that Johnson mandate[d] the invalidation of [section] 924(c)’s particular residual clause.” Id. For example, “an analysis of a statute’s vagueness is necessarily depend- ent on the particular words used and, while similar, the language in the two statutes [wa]s not the same.” Id. Then, in In re Garrett, 908 F.3d 686 (11th Cir. 2018), abrogated on other grounds by Davis, 139 S. Ct. 2319, we concluded that “nei- ther Johnson nor Dimaya supplie[d] any ‘rule of constitutional law’—‘new’ or old, ‘retroactive’ or nonretroactive, ‘previously un- available’ or otherwise—that c[ould] support a vagueness-based challenge to the residual clause of section 924(c).” Id. at 689. We reached this conclusion based on Ovalles II, which had interpreted USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 23 of 54

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section 924(c) to require “a conduct-based approach that ac- count[ed] for the actual, real-world facts of the crime’s commis- sion, rather than a categorical approach.” Id. (citation omitted). We recognized that our pre-Ovalles cases in effect at the time of the Garrett prisoner’s sentencing interpreted section 924(c) to require a categorical approach—but this “ma[d]e no difference.” Id. “[E]ven if we construed [the prisoner’s] claim as a challenge to the use of a categorical approach by his sentencing court,” we said, “[t]he sub- stitution of one interpretation of a statute for another never amounts to ‘a new rule of constitutional law,’ not even when it comes from the Supreme Court.” Id. (citations omitted). Although the Supreme Court’s decision in Davis abrogated Garrett to the extent it ruled that section 924(c)’s residual clause wasn’t unconstitutionally vague, we have since reaffirmed Garrett’s conclusion that Johnson and Davis announced different new consti- tutional rules for purposes of section 2255(h)(2). See Hammoud, 931 F.3d at 1036–38. In Hammoud, the prisoner sought leave—prior to Davis—to file a second or successive section 2255 motion, arguing that his section 924(c) conviction was unconstitutional under the new rule of constitutional law announced in Johnson and Dimaya. Id. at 1036. We denied his application “under our then-binding precedent in” Ovalles II. Id. Following Davis—which overruled Ovalles II—the Hammoud prisoner filed another application for leave to file a second or successive section 2255 motion, arguing that his section 924(c) conviction was invalid “in light of the new rule of constitutional law set forth in Davis, Dimaya, and Johnson.” Id. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 24 of 54

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We expressly rejected the prisoner’s argument that Johnson’s or Dimaya’s rule supported his claim. The prisoner’s “reliance on Dimaya and Johnson to support his [section] 924(c) challenge [was] misplaced,” we said, “as those cases involved 18 U.S.C. [section] 16(b) and the [Armed Career Criminal Act], respectively, not [sec- tion] 924(c).” Id. at 1036 n.1. Instead, the Hammoud prisoner’s claim was “best described as a Davis claim.” Id. The Hammoud court then addressed “whether Davis an- nounced a new rule of constitutional law” for section 2255(h)(2) purposes. Id. at 1036–37. It did. We explained that Davis’s rule was new “because it extended Johnson and Dimaya to a new statute and context.” Id. at 1038. “Davis, like Johnson before it, announced a new substantive rule,” we said, “because, just as Johnson nar- rowed the scope of the Armed Career Criminal Act, Davis nar- rowed the scope of section 924(c) by interpreting its terms, specifi- cally, the term crime of violence.” Id. (cleaned up). In other words, “Davis restricted for the first time the class of persons [section] 924(c) could punish and, thus, the government’s ability to impose punishments on defendants under that statute.” Id. And because Davis’s new constitutional rule was different than the rules announced by Johnson and Dimaya, the Hammoud court concluded that the prisoner’s application wasn’t barred by our decision in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016). Ham- moud, 931 F.3d at 1039–40. In Baptiste, we found that 28 U.S.C. sec- tion 2244(b)(1), which prohibits state prisoners from presenting re- peat claims in a second or successive section 2254 habeas corpus USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 25 of 54

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petition, also barred federal prisoners from raising claims in a sec- ond or successive section 2255 motion that were presented in a prior application. 828 F.3d at 1339–40. And in Bradford, we said that section 2244(b)(1)—and by extension Baptiste—created a juris- dictional bar to claims that were raised and rejected in a prior ap- plication. 830 F.3d at 1277–79. But the Hammoud court concluded that Baptiste’s bar didn’t apply to the prisoner’s successive applica- tion raising a Davis claim, even though his prior application sought to challenge his section 924(c) conviction under Johnson and Di- maya. 931 F.3d at 1039–40. Baptiste’s bar didn’t apply, we ex- plained, because “Davis announced a new substantive rule of con- stitutional law in its own right, separate and apart from (albeit pri- marily based on) Johnson and Dimaya. Thus, [the prisoner’s] pre- sent claim is a new Davis claim, not a Johnson or Dimaya claim, and is, therefore, not barred by In re Baptiste.” Id. at 1040; see also In re Navarro, 931 F.3d 1298, 1301 (11th Cir. 2019) (“[The prisoner’s] cur- rent application seeks to assert new Davis claims, not Dimaya claims, and is not barred by In re Baptiste.”). * * * Jones’s case isn’t the first time we’ve been asked to apply Johnson to other residual clauses. The new rule in Johnson didn’t extend to an identical residual clause in the sentencing guidelines. Griffin, 823 F.3d at 1356; Anderson, 829 F.3d at 1292. Instead, if the Supreme Court in Beckles extended Johnson’s reasoning to the ca- reer offender guideline’s residual clause, that would’ve constituted a “new rule of constitutional law” for section 2255(h) purposes. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 26 of 54

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Anderson, 829 F.3d at 1293. And the new rule in Johnson didn’t apply to the residual clause in section 924(c). Smith, 829 F.3d at 1278–79; Garrett, 908 F.3d at 689; Hammoud, 931 F.3d at 1036 n.1. Instead, because the Court “extended Johnson and Dimaya to a new statute and context”—namely, section 924(c)’s residual clause—Davis an- nounced a separate new constitutional rule for purposes of section 2255(h)(2). Hammoud, 931 F.3d at 1038. That’s why Baptiste doesn’t bar Davis-based section 924(c)-conviction challenges previously as- serted as Johnson or Dimaya claims. Id. at 1039–40; accord Navarro, 931 F.3d at 1301. Jones Did Not Satisfy the New-Constitutional-Rule Requirement With these principles in mind, we now turn to the threshold jurisdictional question raised by this case: whether Jones’s second section 2255 motion relied on a “new rule of constitutional law” announced by the Supreme Court. § 2255(h)(2). Jones’s second section 2255 motion relied on Johnson to satisfy section 2255(h)(2)’s new-constitutional-rule requirement. But it was “not enough for [Jones] to simply identify Johnson and the residual clause as the basis for the claim” he sought “to raise in a second or successive [section] 2255 motion.” See Griffin, 823 F.3d at 1354. Jones also had to “show that he was sentenced under the residual clause in the [Armed Ca- reer Criminal Act] and that he falls within the scope of the new substantive rule announced in Johnson.” See id. Jones failed to make this showing. He wasn’t sentenced under the Act’s residual clause, and he doesn’t fall within the scope of Johnson’s new rule. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 27 of 54

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To be sure, Jones’s three-strikes law claim resembles a John- son claim: both claims assert that the residual clause of a recidivist statute is unconstitutionally vague. But that doesn’t mean Jones can rely on Johnson—or Dimaya or Davis, as he asserted on appeal— to supply the new rule of constitutional law he needs to satisfy sec- tion 2255(h)(2). Our decisions in Griffin, Anderson, and Hammoud demonstrate why. If the new rule announced in Johnson applied to every other similarly worded residual clause, we wouldn’t have said in Griffin that a vagueness challenge to the career offender guideline’s resid- ual clause “differ[ed] fundamentally and qualitatively” from a John- son claim. 823 F.3d at 1356. We wouldn’t have said in Anderson that a vagueness challenge to the residual clause in the career of- fender guideline was a (hypothetical) Beckles claim rather than a Johnson claim. 829 F.3d at 1293. And there would’ve been no need for Hammoud to consider whether Davis had announced a new rule of constitutional law made retroactively applicable to cases on col- lateral review by the Supreme Court—we would’ve simply applied Johnson and Dimaya to the Hammoud prisoner’s section 924(c) claim. But we couldn’t simply apply Johnson to the Hammoud prisoner’s section 924(c) claim, because “[his] present claim [was] best de- scribed as a Davis claim.” Hammoud, 931 F.3d at 1036 n.1. His claim wasn’t a Johnson claim despite their similarities. Rather than apply Johnson’s new rule to the Hammoud pris- oner’s Davis claim, we instead “conclude[d] that Davis, like Johnson before it, announced a new substantive rule.” Id. at 1038. And this USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 28 of 54

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rule, which narrowed the class of people eligible for conviction un- der section 924(c), was new “because it extended Johnson and Di- maya to a new statute and context.” Id. Any attempt in a second or successive section 2255 motion to apply the rule announced in Johnson, Dimaya, or Davis to a different statute and context is “mis- placed.” Id. at 1036 n.1. That’s precisely what Jones seeks to do here with the three- strikes law. He doesn’t rely on a decision from the Supreme Court announcing a new rule that the three-strikes law’s residual clause is unconstitutionally vague. (There isn’t one.) Rather, Jones main- tains that this rule flows from Johnson. We rejected that reasoning in Griffin, Anderson, and Hammoud, and we reject it here too. The dissenting opinion gives three reasons why Hammoud doesn’t apply to Jones’s claim. First, the dissenting opinion ex- plains, Hammoud didn’t “say[] anything about whether the Johnson rule applies to other statutes.” But it did. Hammoud was not the prisoner’s first time seeking leave to file a successive section 2255 motion. He filed an application a year earlier arguing that the re- sidual clause in section 924(c) was unconstitutional in light Johnson and Dimaya. Hammoud, 931 F.3d at 1036. We denied the earlier application because, pre-Davis, “neither Johnson nor Dimaya could support a vagueness-based challenge to” the section 924(c) residual clause. Id. The prisoner’s “reliance on Dimaya and Johnson to sup- port his [section] 924(c) challenge [wa]s misplaced,” we said, be- cause “those cases involved [section] 16(b) and the [Armed Career Criminal Act], respectively, not [section] 924(c).” Id. at 1036 n.1. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 29 of 54

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If Johnson applied to the other recidivist statutes, as the dis- senting opinion claims, then we would have granted the Hammoud prisoner’s initial application and he wouldn’t have needed to re- apply after Davis. But he did need to re-apply because, without Da- vis, Johnson and Dimaya did not support a vagueness-based chal- lenge to the almost identical residual clause in section 924(c). Be- cause the new rule in Johnson didn’t apply to other statutes, the Hammoud prisoner needed Davis to meet the new rule requirement in section 2255(h)(2). Second, the dissenting opinion says that Hammoud is “distin- guishable” because it relied on the fact that “Davis extended Johnson to a new context (i.e., a non-recidivist statute).” Hammoud, the dis- senting opinion explains, found that Davis was a new rule because “[t]he applicability of Johnson to [section] 924(c), a non-recidivist statute, was a closer question” than Johnson’s applicability to the three-strikes law, another recidivist statute. But the dissenting opinion’s premise is off. Section 924(c) is not non-recidivist. It, like the Armed Career Criminal Act, has recidivist provisions. The Su- preme Court itself has said so several times. See, e.g., United States v. O’Brien, 560 U.S. 218, 235 (2010) (“The current structure of [sec- tion] 924(c) is more favorable to that interpretation . . . particularly because the machinegun provision is now positioned between the sentencing factors provided in (A)(ii) and (iii) and the recidivist pro- visions in (C)(i) and (ii), which are typically sentencing factors as well. (citation omitted and emphasis added)); Castillo v. United States, 530 U.S. 120, 125 (2000) (“The next three sentences of [sec- tion] 924(c)(1) . . . refer directly to sentencing: the first to recidivism, USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 30 of 54

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the second to concurrent sentences, the third to parole. (emphasis added)). Third, the dissenting opinion says that, unlike for section 924(c), where “[r]easonable jurists . . . debate[d] whether Johnson dictated the demise” of the residual clause, “[h]ere . . . there is simply no credible argument that the rule set forth in Johnson could spare” the three-strikes law’s residual clause. In support, the dis- senting opinion cites the government’s concession to Congress that there’s “no reasonable basis” to distinguish the three-strikes law’s re- sidual clause from section 924(c)’s residual clause, which the Su- preme Court found unconstitutionally vague in Davis. But we’ve been down this road before. In Beckles, another post-Johnson challenge, the government “agree[d] with [the] peti- tioner that the [g]uidelines [we]re subject to vagueness challenges.” 580 U.S. at 261. So the Supreme Court appointed “amicus curiae to argue the contrary position.” Id. at 261–62. The Beckles Court rejected the aligned position of the government and the petitioner and adopted the amicus curiae’s argument “that the advisory [g]uidelines [we]re not subject to vagueness challenges under the Due Process Clause.” Id. at 258. The Supreme Court didn’t read the government’s confession of error to mean there was no credi- ble argument that Johnson didn’t apply to the career offender guide- line’s residual clause. That’s because “[a] confession of error on the part of the United States does not relieve th[e] [c]ourt of the perfor- mance of the judicial function.” Gibson v. United States, 329 U.S. 338, 344 n.9 (1946) (quotation omitted). USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 31 of 54

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Here, as in Beckles, after the government’s confession, we appointed amicus curiae to defend the district court’s judgment that the three-strikes law’s residual clause was not unconstitution- ally vague. And, as in Beckles, amicus counsel “ably discharged his responsibilities.” See 580 U.S. at 262. Amicus counsel argued that Johnson didn’t apply to the three-strikes law’s residual clause be- cause the Armed Career Criminal Act’s residual clause was “mate- rially differe[nt]” in two key ways. First, the Act’s residual clause was vague because it included conduct that had a “potential risk of physical injury,” while the three-strikes law was limited to offenses that involved a “substantial risk that physical force . . . may be used.” The Johnson Court “found the term ‘potential risk’ to be troublesome, because ‘assessing “potential risk” seemingly re- quires the judge to imagine how the idealized ordinary case of the crime subsequently plays out.’” Second, the Act’s enumerated clause “listed a mere handful of examples . . . that were not inherently violent or did not inher- ently present a risk of physical injury,” while the three-strikes law’s “enumerated clause lists truly violent crimes that do provide guid- ance to and notice of which crimes fall within” the residual clause. The dissenting opinion’s chart, which narrowly focuses on a small part of the Armed Career Criminal Act and section 924(c), cuts out the important differences between those statutes and the three- strikes law. But that’s not how we read statutes. A “reasonable statutory interpretation must account for both the specific context in which . . . language is used and the broader context of the statute as a whole.” Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 321 (2014) USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 32 of 54

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(omission in original, quotations omitted). The omissions in the dissenting opinion’s chart cut out the necessary context. To be sure, we don’t know whether amicus counsel’s argu- ments will carry the day when this issue is eventually decided on the merits. Because Jones has not met the section 2255(h)(2) re- quirements, we cannot reach the merits of his vagueness argu- ment. (And, because we do not reach the merits, we are not “con- tinu[ing] the same path as we did before,” as the dissenting opinion suggests.) But, reading the amicus brief, we cannot say, as the dis- senting opinion does, that “there is simply no credible argument that the rule set forth in Johnson could spare” the three-strikes law’s residual clause. Amicus counsel’s arguments were credible and de- batable enough that we denied the government’s motion for sum- mary reversal. Turning away from Hammoud, Jones and the dissenting opinion cite three cases to show that his motion was based on a new constitutional rule and satisfied section 2255(h)(2): Stringer v. Black, 503 U.S. 222 (1992), Tyler v. Cain, 533 U.S. 656 (2001), and Granda v. United States, 990 F.3d 1272 (11th Cir. 2021). But each one is distinguishable. The dissenting opinion points to Stringer as signifying that “not every extension of Supreme Court precedent to a new statute requires a new rule of constitutional law”—meaning we don’t need a “new and separate rule” applying the principle from Johnson to the three-strikes law’s residual clause. Jones, for his part, argues that Stringer shows that existing precedents, even if not themselves USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 33 of 54

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announcing new rules, can combine to announce a new rule of constitutional law in a novel setting. Jones says that Johnson, Di- maya, and Davis, taken together, “set out a clear rule of unconstitu- tional vagueness in criminal residual clauses,” and that “vagueness rule”—“like the vagueness rule in Stringer”—“transcends specific statutes.” Because Johnson and its progeny, taken together, dictate by precedent a rule of unconstitutional vagueness applicable to the three-strikes law (a “similarly-worded provision in a different stat- ute”), Jones contends, “[t]he Supreme Court d[id] not have to issue a fourth case naming [that statute] as unconstitutional.” We think Stringer doesn’t apply as Jones or the dissenting opinion urge for four reasons. First, in Stringer, the Supreme Court reached the conclusion that it did because its existing precedents— Clemons v. Mississippi, 494 U.S. 1074 (1990) and Maynard v. Cart- wright, 486 U.S. 356 (1988)—did not announce new rules of consti- tutional law. See, e.g., Stringer, 503 U.S. at 228 (“First, it must be determined whether the decision relied upon announced a new rule. If the answer is yes . . . the decision is not available to the petitioner.”); id. (“In the case now before us Mississippi does not argue that Maynard itself announced a new rule. To us this appears a wise concession.”). But here, unlike in Stringer, the existing prec- edents that Jones relies on—Johnson and Davis—did announce new rules. See Hammoud, 931 F.3d at 1038 (“We conclude that Davis, like Johnson before it, announced a new substantive rule.”). Second, in Stringer, the Supreme Court applied its existing precedents finding statutory aggravating factors USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 34 of 54

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unconstitutional—Clemons and Maynard—to a virtually identical statutory aggravating factor. But here, the existing precedents Jones relies on (Dimaya and Davis) did not find virtually identical statutes unconstitutional. Dimaya involved a statute defining ele- ments for federal crimes and immigration violations, while Davis involved its own substantive federal offense. The three-strikes law, by contrast, is a sentence enhancement statute, establishing a man- datory minimum if the defendant had three qualifying convictions. Third, in Stringer, the Supreme Court made clear that the existing precedents had to exist before the prisoner’s conviction and sentence became final. See id. at 227 (“[A] case decided after a [prisoner’s] conviction and sentence became final may not be the predicate for federal habeas corpus relief unless the decision was dictated by precedent existing when the judgment in question became final.” (emphasis added)). But here, the existing precedents Jones relies on (Johnson, Dimaya, and Davis) were decided after Jones’s conviction and sentence became final. See In re Thomas, 988 F.3d 783, 789 (4th Cir. 2021) (In determining whether a decision was dic- tated by precedent, “the Supreme Court mandates that we look to the precedent existing at the time [the prisoner’s] conviction be- came final in 2011. And in 2011, neither Johnson nor Dimaya had been decided. So . . . [Davis] certainly was not dictated by prece- dent in 2011.” (cleaned up)). And fourth, we have already rejected the argument that the existing precedents in Johnson and Dimaya “transcend[]” their con- text and automatically announce new rules applicable to other USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 35 of 54

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residual clauses. In Hammoud, we explained that the prisoner’s “re- liance on Dimaya and Johnson to support his [section] 924(c) chal- lenge [was] misplaced” because “those cases involved 18 U.S.C. [section] 16(b) and the [Armed Career Criminal Act], respectively, not [section] 924(c).” 931 F.3d at 1036 n.1. Instead, the Hammoud prisoner’s claim was “best described as a Davis claim.” Id. In other words, Jones and the dissenting opinion are wrong that a residual clause is a residual clause is a residual clause. Alt- hough the three-strikes law’s residual clause is “similarly worded” to the residual clauses in Johnson, Dimaya, and Davis, we can’t pluck the rules announced by those decisions and plop them onto Jones’s challenge to a different statute in a different context. Our prece- dent expressly forbids doing that. So, we won’t. Jones’s reliance on the decision in Tyler is even further off the mark. There, the Supreme Court addressed the question of retroactivity and said that “[m]ultiple cases can render a new rule retroactive . . . if the holdings in those cases necessarily dictate ret- roactivity of the new rule.” Tyler, 533 U.S. at 666. But the jurisdic- tional problem for Jones isn’t retroactivity. It’s whether any Su- preme Court decision has announced a new constitutional rule that applies to the three-strikes law’s residual clause. Whether a new constitutional rule exists and, if so, whether it’s retroactive are two different questions. Tyler doesn’t help Jones as to the first question. The last case Jones and the dissenting opinion rely on is our decision in Granda. The prisoner in Granda filed a second section 2255 motion challenging the use of his conviction for conspiracy to USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 36 of 54

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commit Hobbs Act robbery as a predicate for his conviction for conspiracy to possess a firearm in furtherance of a crime of violence or drug-trafficking crime, in violation of 18 U.S.C. section 924(o). 990 F.3d at 1280. Although we would now call this a Davis claim, the prisoner filed his motion before Davis, and “we gave [him] leave to file a Johnson challenge.” Id. at 1282–83. We concluded in Granda that the district court had jurisdic- tion over the prisoner’s motion. Id. at 1283. We recognized that “a Johnson claim is distinct from a Davis claim for purposes of the rule against filing repeat petitions raising claims that had been pre- viously rejected” and noted that we had only authorized the pris- oner to file a Johnson claim. Id. But this did not divest the district court of jurisdiction, we said, because “to resolve the Johnson claim we did authorize, we can, indeed we must, apply the controlling Supreme Court law of Davis.” Id. We explained that Davis extended the reasoning of Johnson, providing us with the answer to a question central to [the pris- oner’s] petition: whether the [section] 924(c)(3)(B) re- sidual clause is unconstitutionally vague. Applying Davis to resolve [the prisoner’s] vagueness claim does not transform the authorized claim—which origi- nally relied on Johnson—into a distinct, unauthorized Davis claim.

Id. at 1283–84. Granda shows that where we have authorized a Johnson claim and the prisoner has really raised a Davis claim, the district court has jurisdiction to decide the Davis claim the prisoner has USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 37 of 54

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brought. Thus, if the Supreme Court had decided, while Jones’s petition was pending, that the three-strikes law’s residual clause was unconstitutionally vague, Granda would solve Jones’s jurisdic- tional problem. We would be able to say that this new Supreme Court case “extended the reasoning of Johnson” and “provid[ed] us with the answer to a question central to [Jones]’s petition: whether the [three-strikes law’s] residual clause is unconstitutionally vague.” See id. at 1283–84. But that case does not exist; the Su- preme Court has not yet answered the “question central” to Jones’s petition. See id. at 1283. And that, in turn, means there is no new rule of constitutional law from the Supreme Court allowing for Jones’s second section 2255 motion. The Dissenting Opinion Before concluding, we briefly respond to two parts of the dissenting opinion. First, the dissenting opinion reaches the con- clusion that it does because it reads the new rule in Johnson as: “de- fendants have the right not to be sentenced under an unpredictable and arbitrary residual clause.” But this is not the new rule in John- son. The “new rule of constitutional law announced in Johnson” was “that the definition of violent felony in the residual clause of the Armed Career Criminal Act [wa]s unconstitutionally vague.” In re Burgest, 829 F.3d 1285, 1286 (11th Cir. 2016) (citations omit- ted). We’ve described it that way at least a half dozen times. See, e.g., In re Watt, 829 F.3d 1287, 1289 (11th Cir. 2016) (describing the “new rule of constitutional law” as “the definition of violent felony USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 38 of 54

38 Opinion of the Court 20-13365

in the residual clause of the Armed Career Criminal Act is uncon- stitutionally vague” (citations omitted)); Burgest, 829 F.3d at 1286; In re Williams, 826 F.3d 1351, 1353 (11th Cir. 2016) (describing the “new rule of constitutional law” in Johnson as “that the residual clause of the violent felony definition in the Armed Career Crimi- nal Act . . . is unconstitutionally vague and that imposing an in- creased sentence under that provision . . . violates due process” (ci- tation omitted)); In re Colon, 826 F.3d 1301, 1302 (11th Cir. 2016 (de- scribing the “new rule of constitutional law” in Johnson as “the re- sidual clause of the Armed Career Criminal Act . . . is unconstitu- tionally vague” (citations omitted)); Anderson, 829 F.3d at 1291 (de- scribing the “new rule of constitutional law announced in Johnson” as “the residual clause of the Armed Career Criminal Act is uncon- stitutionally vague” (citations omitted)); In re Fleur, 824 F.3d 1337, 1338 (11th Cir. 2016) (describing the “new rule of constitutional law” in Johnson as “the residual clause of the Armed Career Crimi- nal Act is unconstitutionally vague” (citations omitted)). If the dissenting opinion’s broad framing of Johnson’s new rule were right, then we would have allowed the Griffin and Ander- son prisoners to file successive section 2255 motions challenging the almost-identical residual clause in the career offender guideline. But we didn’t. We denied permission. And, if the dissenting opin- ion’s framing of Johnson’s new rule were right, then we would have allowed the Hammoud prisoner to file a successive section 2255 mo- tion challenging the almost-identical residual clause in section 924(c). But we didn’t. We denied the Hammoud prisoner’s Johnson- based application. We denied them because the new rule in USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 39 of 54

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Johnson was not so broad to cover all the other similarly-worded residual clauses, as the dissenting opinion claims. Second, the dissenting opinion ends by noting that prisoners sentenced under the three-strikes law’s residual clause “will be barred from vindicating their rights” because “the government has conceded that this residual clause is unconstitutional and, there- fore, no longer seeks to apply it in criminal prosecutions.” We don’t agree. The dissenting opinion ignores cases on direct appeal that were in the pipeline before the government’s confession of er- ror. 7 It overlooks prisoners who have challenged the three-strikes law in an initial section 2255 motion—they, unlike prisoners filing successive motions, do not have to meet the jurisdictional require- ments in section 2255(h)(2). Compare, e.g., In re Palacios, 931 F.3d 1314, 1314–15 (11th Cir. 2019) (requiring section 2255(h) showing for second or successive motion to vacate prisoner’s sentence), with Seabrooks v. United States, 32 F.4th 1375, 1382–83 (11th Cir. 2022) (explaining that initial motion to vacate prisoner’s sentence isn’t analyzed under section 2255(h)). And the dissenting opinion as- sumes that the government will never change its position on the three-strikes law. But the government’s legal position is not

7 If the government confesses error on direct appeal, as the dissenting opinion

suggests, then we will consider the government’s confession in deciding the merits of whether the three-strikes law’s residual clause is unconstitutionally vague. But the point is that on direct appeal, unlike on a second section 2255 motion, we will have the opportunity and the jurisdiction to consider the mer- its of the government’s confession. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 40 of 54

40 Opinion of the Court 20-13365

written in stone. It changes, sometimes from Administration to Administration. Take the three-strikes law as an example. From Johnson in 2015 until the government’s letter to Congress in 2020, the govern- ment’s position was that the three-strikes law’s residual clause was not unconstitutionally vague. In 2020, five years after Johnson, the government’s position changed. Even in this case, the government defended the application of the three-strikes law to Jones and only flipped its position on appeal. There’s no reason to believe the gov- ernment will never flip again. CONCLUSION We end, as we began, by highlighting how narrow today’s decision is. We have not decided whether the three-strikes law’s residual clause is unconstitutionally vague. And we have not de- cided whether Jones met his burden under Beeman. Instead, our review is limited to the threshold question whether Jones has met the jurisdictional requirements of section 2255(h)(2). The district court had jurisdiction to consider Jones’s second section 2255 motion only if he could establish that a new constitu- tional rule supported his claim. But no decision from the Supreme Court has announced the new rule that Jones needs. The district court therefore “lack[ed] jurisdiction to decide whether [Jones’s] motion ha[d] any merit.” See Randolph, 904 F.3d at 964. We vacate the district court’s denial of Jones’s motion on the merits and re- mand for the dismissal of his motion. VACATED AND REMANDED. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 41 of 54

20-13365 WILSON, J., Dissenting 1

WILSON, Circuit Judge, Dissenting: In 2015, the Supreme Court struck down the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), as unconstitutionally vague. See Johnson v. United States, 576 U.S. 591 (2015). Shortly thereafter, the Court held that Johnson applies ret- roactively to cases on collateral review. See Welch v. United States, 578 U.S. 120 (2016). A decade earlier, the defendant in this case, Charles Jones, was sentenced to life in prison under a similar resid- ual clause in the federal three strikes law, 18 U.S.C. § 3559(c). By the time Johnson came down from the Supreme Court, Jones had long since exhausted his direct appeal and his initial habeas petition. So, in 2016, we authorized Jones to file a second or successive § 2255 motion to vacate his § 3559(c) enhancement. We certified that, in the wake of Johnson and Welch, Jones had made a prima facie showing that his motion contained “a new rule of constitu- tional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” as required by 28 U.S.C. § 2255(h)(2). The district court denied relief on the merits but granted a certificate of appealability. The majority now holds that we lack jurisdiction to hear this appeal, finding that Jones’s motion does not rely on the “new rule of constitutional law” established in Johnson. That is a view re- jected by all the litigants in this case: the government, the defense, and court-appointed amicus. And what justification does the ma- jority offer? Because Jones seeks to invalidate his enhanced sen- tenced imposed under the residual clause contained in § 3559(c) USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 42 of 54

2 WILSON, J., Dissenting 20-14539

rather than the ACCA’s residual clause, the majority reasons that Johnson is no help to Jones. That reasoning is flawed. The Supreme Court has made clear that “a case does not ‘announce a new rule, [when] it [is] merely an application of the principle that governed’ a prior deci- sion to a different set of facts.” Chaidez v. United States, 568 U.S. 342, 347–48 (2013) (quoting Teague v. Lane, 489 U.S. 288, 307 (1989)) (emphasis and alterations in original). Here, Jones is merely asking us to enforce the principle that governed Johnson: that defendants have the right not to be sentenced under an unpredictable and ar- bitrary residual clause. That principle applies to § 3559(c)’s residual clause, which is indistinguishable from the one at issue in Johnson. Therefore, I would hold that we have jurisdiction pursuant to § 2255(h)(2). Viewing the rules of Johnson and Dimaya 1 and Davis 2 as spe- cific only to the statutes they addressed is in essence holding that when the Supreme Court establishes a rule it can govern only that statute, and that applying the same principle to another statute nec- essarily requires a new and separate rule. But Supreme Court prec- edent shows otherwise. Consider, for example, the Supreme Court’s decision in Stringer v. Black, 503 U.S. 222 (1992), in which the Court had to determine which of its prior decisions constituted a new rule of constitutional law. There, the Court noted that one

1 Sessions v. Dimaya, 138 S. Ct. 1204 (2018). 2 Davis v. United States, 139 S. Ct. 2319 (2019). USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 43 of 54

20-13365 WILSON, J., Dissenting 3

decision, Godfrey v. Georgia, 446 U.S. 420 (1980), had “invalidated a death sentence” that rested on a vaguely worded Georgia statute. Stringer, 503 U.S. at 228. Later, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court had “applied the same analysis and reason- ing” to invalidate a similar Oklahoma statute. Stringer, 503 U.S. at 228. Yet, although Maynard extended Godfrey to a new statute, it did not announce a new rule of constitutional law. See id. at 228–29. The Court explained: Godfrey and Maynard did indeed involve somewhat dif- ferent language. But it would be a mistake to con- clude that the vagueness ruling of Godfrey was limited to the precise language before us in that case. In ap- plying Godfrey to the language before us in Maynard, we did not “brea[k] new ground.” Maynard was, therefore . . . controlled by Godfrey, and it did not an- nounce a new rule.

Id. (alteration in the original). Thus, not every extension of Su- preme Court precedent to a new statute requires a new rule of con- stitutional law. A rule is not “new” where it simply applies an ex- isting rule in a way that would be obvious to reasonable jurists. See Sawyer v. Smith, 497 U.S. 227, 234 (1990). The majority identifies two lines of this court’s post-Johnson cases to support its analysis. The first line of cases relate to post- Johnson challenges to the career offender’s residual clause. I under- stand the majority’s use of those cases and I do not quibble with those cases especially in light of United States v. Beckles, 580 U.S. 256 (2017). In Beckles, the Supreme Court declined to extend Johnson USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 44 of 54

4 WILSON, J., Dissenting 20-14539

and void for vagueness challenges to sentencing guidelines. Specif- ically, the Court explained that void for vagueness applies to “laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses,” and sentencing guidelines “merely guide the exercise of a court’s discretion in choosing an appropriate sentence with the statutory range.” 580 U.S. at 262–63. This is reasonable and our line of cases that developed before Beckles understood that distinction the Supreme Court ultimately made. But I think most of the majority’s errors stem from its overreading on the second line of cases, most specifically In re Ham- moud, 3 where we held that the Supreme Court announced a new rule of constitutional law when it extended Johnson’s reasoning to invalidate 18 U.S.C. § 924(c). 931 F.3d 1032, 1038 (11th Cir. 2019) (per curiam) (discussing Davis v. United States, 139 S. Ct. 2319 (2019)). Our decision in Hammoud does not require a different result. To understand Hammoud, one must understand what preceded it. As the majority recounts, the Supreme Court struck down three separate residual clauses between 2015 and 2019. The first to go was the ACCA’s residual clause, which de- fines a violent felony as one that “involves conduct that presents a

3 The majority faults the dissent for focusing on Hammoud when it cites a dozen cases post-Johnson to support its analysis. And there is no doubt that the majority does cite more cases than Hammoud, but in my view, the majority focuses extensively on Hammoud which I agree is an influential case in resolv- ing this question. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 45 of 54

20-13365 WILSON, J., Dissenting 5

serious potential risk of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B)(ii). That clause was unconstitutionally vague be- cause it required courts, using 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 poten- tial risk of physical injury.” Johnson, 576 U.S. at 596. Second, a few years later, the Court applied the same reasoning to strike down a similarly worded residual clause, 18 U.S.C. § 16(b). See Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (“Johnson is a straightforward decision, with equally straightforward application here. . . . Johnson effectively resolved the case now before us.”). Third, the Court went a step farther, striking down the residual clause in 18 U.S.C. § 924(c), which was at least arguably distinguishable from those at issue in Johnson and Dimaya. See Davis, 139 S. Ct. at 2323–24. Whereas the residual clauses in Johnson and Dimaya required courts to look back at a defendant’s previous convictions, the residual clause at issue in Davis involved contemporaneous predicate offenses. Compare § 924(e) (defining previous convictions for the purpose of a criminal-recidivist sentencing enhancement), and § 16(b) (defin- ing previous convictions for purposes of determining removability in the immigration context), with § 924(c) (making it a separate of- fense for anyone to use, carry, or possess a firearm while commit- ting a violent felony). Prior to Davis, several circuits, including our own, found that distinction significant for the following reason. For example, in Ovalles v. United States, we reasoned that the backward-looking nature of the residual clauses in the ACCA and § 16(b) USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 46 of 54

6 WILSON, J., Dissenting 20-14539

unquestionably required courts to apply the categorical approach, which contributed to the vagueness problem that infected those clauses. 905 F.3d 1231, 1248–49 (11th Cir. 2018) (en banc), abrogated by Davis, 139 S. Ct. 2319. In contrast, because § 924(c) “operate[d] entirely in the present,” it arguably enabled courts to employ a con- duct-based approach that focused on a defendant’s real-world be- havior, thus avoiding the vagueness issues that would otherwise render it unconstitutionally vague. See id. at 1249 (reasoning that “the look-back problem doesn’t arise with respect to § 924(c), which serves an altogether different function from the statutes at issue in Johnson and Dimaya and operates differently in order to achieve that function”). As it turned out, the Supreme Court re- jected that distinction, abrogating our Ovalles decision and settling a circuit split. See Davis, 139 S. Ct. at 2326 (comparing § 924(c)’s residual clause with those at issue in Johnson and Dimaya and find- ing “no material difference in the[ir] language or scope”). Against that backdrop came our decision in Hammoud. There, the movant had filed a habeas petition in 2018—after John- son but before Davis—seeking to extend Johnson’s reasoning to § 924(c). We denied that petition on the merits, applying our deci- sion in Ovalles, which was binding at the time. But once Davis over- ruled Ovalles in 2019, Hammoud filed a new petition, this time pur- porting to rely on a new rule of constitutional law as set forth in Davis. See Hammoud, 931 F.3d at 1036. The question before us then was whether to view Davis as a new rule of constitutional law. Id. at 1036–37. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 47 of 54

20-13365 WILSON, J., Dissenting 7

We held that Davis was a new rule, rather than merely an application of Johnson and Dimaya, for two reasons. First, “it ex- tended Johnson and Dimaya to a new statute and context.” Id. at 1038. The Supreme Court’s holding in Davis, we explained, “re- stricted for the first time the class of persons § 924(c) could punish and, thus, the government’s ability to impose punishments on de- fendants under that statute.” Id. Second, we observed that “the Supreme Court’s grant of certiorari in Davis to resolve the circuit split on whether § 924(c)(3)(B) was unconstitutionally vague illus- trates that the rule in Davis was not necessarily ‘dictated by prece- dent,’ . . . or ‘apparent to all reasonable jurists[.]’” Id. (citing Stringer, 503 U.S. at 228; Lambrix v. Singletary, 520 U.S. 518, 527–28 (1997)). To begin, Hammoud decided an entirely different question than the one before us. And it is axiomatic that “a judicial decision is inherently limited to the facts of the case then before the court and the questions presented to the court in the light of those facts.” United States v. Johnson, 921 F.3d 991, 1003 (11th Cir. 2019) (en banc) (alterations adopted). On the circumstances presented in Hammoud we sensibly concluded that a movant seeking to invalidate his § 924(c) conviction post-Davis of course proceeds under Davis ra- ther than Johnson or Dimaya. The majority focuses on the fact that Hammoud held Davis was a “new substantive rule,” Hammoud, 931 F.3d at 1038, distinct from Johnson and Dimaya. Maj. Op. at 27–28. The majority notes that Hammoud called reliance on the Johnson and Dimaya lines of cases “misplaced” in the § 924(c) context. Maj. Op. at 28 (citing Hammoud, 931 F.3d at 1036 n.1). But neither of USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 48 of 54

8 WILSON, J., Dissenting 20-14539

these facts says anything about whether the Johnson rule applies to other statutes. Notwithstanding that Davis announced a “new” rule, the question in this case is whether the Johnson rule applies to statutes such as § 3559(c). But even taking Hammoud for all its persuasive worth, its rea- soning is distinguishable. To be sure, the Hammoud panel found it significant that Davis extended Johnson to a new statute. Hammoud, 931 F.3d at 1038. Critically, however, the Hammoud panel also noted that Davis extended Johnson to a new context (i.e., a non-re- cidivist statute). 4 Id. Jones seeks to apply Johnson to a new statute, but he does not seek to apply it in a new context. Section 3559(c), like the ACCA, is a recidivist statute requiring courts to look back and assess a defendant’s previous convictions. It thus operates in the same context as the rule announced in Johnson. Relatedly, we emphasized in Hammoud that Davis was not necessarily “dictated by precedent,” as it resolved an issue that had produced a circuit split and generated disagreement among reason- able jurists—none of which is true here. Id. Recall that the debate surrounding Johnson’s applicability to § 924(c)—which the Court

4 The majority responds that § 924(c) contains certain recidivist provisions, citing to United States v. O’Brien, 560 U.S. 218 (2010) and Castillo v. United States, 530 U.S. 120 (2000). However, the majority’s emphasis is misplaced. First, both cases dealt with § 924(c) in its creation of either offense elements or sen- tencing factors, where a consideration of an offender’s characteristics—includ- ing recidivism—tips the scale toward the latter. Second, and importantly, whether § 924(c) contains certain recidivist provisions does not negate the fact that the statute is non-recidivist as a whole. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 49 of 54

20-13365 WILSON, J., Dissenting 9

addressed in Davis—hinged entirely on the premise that § 924(c) might not require the categorical approach. See Davis, 139 S. Ct at 2327; see also Ovalles, 905 F.3d at 1239–40 (reasoning that “if we are required to apply the categorical approach in interpreting § 924(c)(3)’s residual clause— . . . as the Supreme Court did in void- ing the residual clauses before it in Johnson and Dimaya—then the provision is done for”). Everyone agreed that “the categorical ap- proach dooms § 924(c)(3)’s residual clause, while a conduct-based interpretation salvages it.” Ovalles, 905 F.3d at 1240. Here, there is no doubt that the categorical approach applies, and, thus, there can be no real contention that § 3559(c) should survive. Reasonable ju- rists could—and did—debate whether Johnson dictated the demise of § 924(c) (a non-recidivist statute), but there is simply no credible argument that the rule set forth in Johnson could spare § 3559(c) (a recidivist statute). 5 See Sawyer, 497 U.S. at 234. To put a finer point on this, § 3559(c) is not materially differ- ent from the statutes at issue in Johnson, Dimaya, and Davis. Section 3559(c) states “the term ‘serious violent felony’ means . . . any other offense punishable by a maximum term of imprisonment of

5 In the wake of Davis, the government has recognized as much, “reluctantly determin[ing] that no reasonable basis exists to distinguish the substantial-risk clause in § 3559(c)(2)(F)(ii) from the provision the Supreme Court found to be unconstitutionally vague in [United States v. Davis, 139 S. Ct. 2319 (2019)].” See Department of Justice, Letter from Acting Solicitor General Wall to the Hon- orable Jerrold Nadler, Committee Chairman on the U.S. House of Represent- atives Judiciary Committee (Sept. 28, 2020) (emphasis added). Accordingly, the government moved for summary reversal in this appeal. We denied that motion and appointed counsel to defend the district court’s judgment. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 50 of 54

10 WILSON, J., Dissenting 20-14539

10 years or more . . . that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.” Now compare Section 3559(c) with the statutes from Johnson, Dimaya, and Davis—they are indis- tinguishable.

Davis (18 U.S.C. § 924(c)) “For purposes of this subsection the term ‘crime of violence’ means an offense that is a felony and— . . . that by its nature, in- volves a substantial risk that physi- cal force against the person or property of another may be used in the course of committing the of- fense.” Dimaya (18 U.S.C. § 16(b)) “The term ‘crime of violence’ means— . . . any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Johnson (18 U.S.C. § 924(e)) “[T]he term “violent felony” means any crime punishable by imprisonment for a term exceed- ing one year . . . that— . . . other- wise involves conduct that pre- sents a serious potential risk of physical injury to another.” USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 51 of 54

20-13365 WILSON, J., Dissenting 11

These residual clauses at issue require sentencing judges to ask an arbitrary and indeterminate question about the risk of phys- ical force. That sort of inquiry is so unpredictable that it does not put defendants on notice of what conduct the statute criminalizes. Because on several occasions the Supreme Court has found similar language to be unconstitutionally vague, the same should follow here. 6 To summarize, it follows necessarily from the new rule of constitutional law articulated in Johnson that § 3559(c)’s residual clause, which uses materially similar language to the ACCA’s resid- ual clause and operates in the same context, suffers from the same fatal defect. The applicability of Johnson to § 924(c), a non-recidivist statute, was a closer question. See Hammoud, 931 F.3d at 1038. In that context, it was less obvious that the categorical approach would apply and therefore less obvious that Johnson’s reasoning would carry the day. Accordingly, I see nothing contradictory in viewing Davis as a new rule of constitutional law, as we did in Ham- moud, while viewing Jones’s motion as proceeding within the scope of Johnson. Indeed, our decision in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021), shows that we are not divested of jurisdiction

6 We have been down this road before in narrowly construing Supreme Court precedents on this topic before being reversed by the Supreme Court. See Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018) (en banc), abrogated by Davis, 139 S. Ct. 2319. Despite knowing this, we continue the same path as we did before. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 52 of 54

12 WILSON, J., Dissenting 20-14539

simply because the petitioner relies on Johnson to challenge the three-strikes provision in § 3559(c) rather than the ACCA. Id. at 1283. In Granda, we authorized the petitioner to file a successive habeas petition after Johnson. Id. But by the time the petitioner’s case reached us on appeal, the Supreme Court decided Davis and this court decided Hammoud. Id. at 1283–84. This presented a ques- tion of our jurisdiction: because we had authorized a Johnson claim but not a Davis claim, we would have lacked jurisdiction if we viewed the petition as asserting a Davis claim. See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam) (“Without authorization, the district court lacks jurisdiction to consider a sec- ond or successive petition.”). However, we held that “[a]pplying Davis to resolve [petitioner’s] vagueness claim does not transform the authorized claim—which originally relied on Johnson—into a distinct, unauthorized Davis claim.” Granda, 990 F.3d at 1284. Thus, in Granda, we held that we had jurisdiction to consider a challenge to a non-ACCA conviction even though the petitioner proceeded under Johnson. On the jurisdictional question, I can see no difference be- tween that situation and the situation presented in this case. Jones was authorized by this court to bring a Johnson claim, and he chal- lenges his life-sentence under § 3559—a non-ACCA statute—on vagueness grounds. If Hammoud’s ruling did not divest this court USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 53 of 54

20-13365 WILSON, J., Dissenting 13

of jurisdiction to consider the Granda petitioner’s claim, it does not divest this court of jurisdiction to hear Jones’s claim.7 * * * The majority’s holding that we lack jurisdiction to hear this appeal is alarming. If the majority’s view is correct, then despite the Supreme Court’s clear guidance in three recent decisions that residual clauses of this sort are unconstitutional—and despite the Court’s holding that these decisions should apply retroactively— prisoners like Jones will be barred from vindicating their rights.8 And it is small comfort to suggest that such prisoners wait for us to strike down § 3559(c)’s residual clause on plenary appeal. Such an occasion will not arise since the government has conceded that this residual clause is unconstitutional and, therefore, no longer seeks

7 The majority responds that: “Granda shows that where we have authorized a Johnson claim and the prisoner has really raised a Davis claim, the district court has jurisdiction to consider the Davis claim the prisoner has brought.” Maj. Op. at 36. Respectfully, this is not what Granda says. Again, we held that the intervening decision in Davis “does not transform” the Johnson claim into a Davis claim. Granda, 990 F.3d at 1284 (emphasis added). In Granda, the only claim we authorized was a Johnson claim, and so it was that claim that gave us jurisdiction. 8 The majority also faults the dissent for ignoring cases on direct appeal or on the initial § 2255 motions. But the majority is relying only on speculation that there are cases in those postures addressing this issue. Further, if the govern- ment confesses error in successive petitions—as it did here—there is no reason to suspect the government won’t confess error in cases on direct appeal or initial § 2255 motions as well. And if no court goes against those concessions, those will be unfruitful challenges as well. USCA11 Case: 20-13365 Document: 48-3 Date Filed: 09/14/2023 Page: 54 of 54

14 WILSON, J., Dissenting 20-14539

to apply it in criminal prosecutions. The majority thus leaves Jones and others like him to serve out unconstitutional sentences. Be- cause our precedents do not require this injustice, I respectfully dis- sent.