Shea v. United States

976 F.3d 63

• Court: Court of Appeals for the First Circuit
• Decided: September 28, 2020
• Docket: 17-1899P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 17-1899

ANTHONY M. SHEA,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Thompson, Selya, and Barron, Circuit Judges.

Wade M. Zolynski, Federal Public Defender Office, for appellant. Seth Aframe, Assistant United States Attorney, for appellee.

September 28, 2020 THOMPSON, Circuit Judge. In Johnson v. United States,

576 U.S. 591, 597 (2015), the Supreme Court held that a jumble of

words in a federal law could not be used to fix a defendant's

sentence, a rule that applies retroactively. See Welch v. United

States, 136 S. Ct. 1257, 1264 (2016). Years ago, judges used the

same wording in another binding rule with "the force and effect of

law[ ]," United States v. Booker, 543 U.S. 220, 234 (2005) —

§ 4B1.2(a)(2) of the U.S. Sentencing Guidelines — to fix

defendants' sentences. Because Johnson made that

unconstitutional, we reverse the district court's decision denying

the motion to vacate and remand for further proceedings.

Background

Twenty-five years ago, Anthony M. Shea drove a stolen

minivan to try to rob a bank in Londonderry, New Hampshire. See

United States v. Shea, 159 F.3d 37, 38 (1st Cir. 1998). Using a

pair of revolvers, Shea and another robber marched two bank tellers

to the vault. Id. When the tellers couldn't open it (a timed

locking device kept it shut), Shea and his partner left empty-

handed. Id. One week later, Shea's criminal career came to an

abrupt stop: after another aborted robbery in neighboring

Massachusetts, his getaway car hit a telephone pole. See United

States v. Shea, 150 F.3d 44, 47 (1st Cir. 1998). A squad of FBI

agents, who'd been in hot pursuit, pulled Shea from the wreckage

and a black revolver from his pants. See id. One of the - 2 - Londonderry tellers later identified the gun as the weapon Shea

had used in New Hampshire. Shea, 159 F.3d at 38.

For the Londonderry robbery, Shea was tried in the

federal court for the District of New Hampshire, where a jury found

him guilty of four charges: armed attempted bank robbery under 18

U.S.C. § 2113(a) and (d), using a firearm during a crime of

violence under 18 U.S.C. § 924(c), interstate transportation of a

stolen vehicle under 18 U.S.C. § 2312, and interstate possession

of a stolen vehicle under § 2312. Id. at 38. For purposes of

Count Two, § 924(c)(3) defined "crime of violence" as a felony

offense that

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

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

18 U.S.C. § 924(c)(3). The government alleged that Count One —

the armed attempted bank robbery — qualified as a "crime of

violence." Soon after the guilty verdict, the judge sentenced

Shea to 567 months (that is, over forty-seven years) in federal

prison, where he dwells to this day.1

1 Shea was also prosecuted in the District of Massachusetts for the aborted robbery there and received a sentence of 382 months in prison. Shea, 150 F.3d at 47. Today, he is also serving a life sentence for a later set of convictions for a string of bank

- 3 - At the time, the U.S. Sentencing Guidelines ordinarily

set the range of sentences the judge could impose. Then, as they

do now, the Guidelines gave each defendant two scores — an "offense

level" (based on the seriousness of his offense of conviction,

plus specified aggravating and mitigating facts in the defendant's

particular case) and a "criminal history category" (based on the

defendant's prior convictions). United States v. Martínez-

Benítez, 914 F.3d 1, 2 n.2 (1st Cir. 2019). The judge plotted

those two scores on a chart and got the applicable sentencing

range. Id. When Shea was sentenced, the Guidelines were

"mandatory and binding on all judges." Booker, 543 U.S. at 233.

To begin with, Shea's crimes of conviction and (fairly

long) criminal history gave him an offense level of 28 and a

criminal history category of V. See U.S. Sentencing Guidelines

Manual ch. 3, pt. A (U.S. Sentencing Comm'n 1995) (hereinafter

"U.S.S.G."). Standing alone, that would have yielded a Guideline

range of 130–162 months in prison, plus the mandatory twenty-year

consecutive sentence for his § 924(c) conviction, which was

unaffected by the Guideline calculation — nothing to shrug off.

As then required, however, the judge classified Shea as a "Career

Offender" under § 4B1.1, which applies when a defendant commits

his third "crime of violence" or "controlled substance offense."

and armored car robberies he and his gang committed in the mid- 90s. See United States v. Shea, 211 F.3d 658, 664 (1st Cir. 2000). - 4 - U.S.S.G. § 4B1.1. At the time, the Guidelines defined "crime of

violence" like the Armed Career Criminal Act ("ACCA"), 18 U.S.C.

§ 924(e)(2)(B), defined "violent felony": as a felony offense

that

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

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (1997) (emphasis added). (Stick a pin in this:

the first sentence is known as the "force clause" and the last,

catch-all phrase is known as the "residual clause"). The court

determined that two of Shea's past convictions — one in 1982 for

federal armed bank robbery and another in 1992 for assault and

battery on a police officer ("ABPO") under Massachusetts law —

both fit the bill. At the time, they were both qualifying offenses

under the residual clause. See United States v. Fernandez, 121

F.3d 777, 778–80 (1st Cir. 1997); United States v. McVicar, 907

F.2d 1, 1 (1st Cir. 1990). The Career Offender Guideline rocketed

Shea's Guideline range (again minus the twenty-year § 924(c) tack-

on) from 130–162 months to 262–327 months in prison. Because the

Guidelines were mandatory, and no one (including the judge)

identified any ground for departure, Shea claims that none was

- 5 - available, which meant the judge had to sentence him within the

Guideline range.

A lot changed in the next twenty years. In Booker, the

Supreme Court held the mandatory Guidelines system

unconstitutional and struck the provision that made them binding

on judges. 543 U.S. at 245. Now the Guidelines are "effectively

advisory." Id. "Although [they] remain 'the starting point and

the initial benchmark' for sentencing, a sentencing court may no

longer rely exclusively on the Guidelines range; rather, the court

'must make an individualized assessment based on the facts

presented' and the other statutory factors." Beckles v. United

States, 137 S. Ct. 886, 894 (2017) (quoting Gall v. United States,

552 U.S. 38, 49–50 (2007); see also Gall, 522 U.S. at 50

(explaining that a sentencing judge may not even "presume the

[guideline] range is reasonable").

Then, five terms ago, the Court held that "imposing an

increased sentence under the residual clause of the [ACCA] violates

the Constitution's guarantee of due process" because the clause

was unconstitutionally vague. Johnson, 576 U.S. at 606. In doing

so, the Court overturned its own precedent and announced a "new

rule" of law — a rule not "dictated by precedent." Welch, 136 S.

Ct. at 1264 (emphasis omitted) (quoting Teague v. Lane, 489 U.S.

288, 301 (1989)). "Generally, new rules of law do not apply to

cases concluded before the new law is recognized." Butterworth v. - 6 - United States, 775 F.3d 459, 463 (1st Cir. 2015). But the Supreme

Court soon made clear that Johnson triggered an exception: as a

"substantive" rule that curbed the scope of a criminal law (the

ACCA), it applies retroactively. See Welch, 136 S. Ct. at 1265–

68.

Within a year after the Johnson decision, Shea moved to

vacate his conviction and sentence under 28 U.S.C. § 2255, urging

that the Court's reasoning in Johnson made the similar residual

clauses in § 924(c) and § 4B1.2(a) unconstitutionally vague, as

well. Shea argued that shorn of that clause, § 924(c) did not

support his conviction for carrying a firearm in relation to a

"crime of violence," and the pre-Booker Career Offender Guideline

wrongfully enhanced his sentence. He urged (as he does on appeal)

that his instant conviction for armed attempted bank robbery under

federal law did not satisfy § 924(c)'s force clause, and that none

of his prior convictions — including for federal armed bank

robbery, Massachusetts ABPO, and Massachusetts assault and battery

("A&B") — satisfied § 4B1.2(a)'s force clause or matched the

generic offenses it enumerates. See United States v. Faust, 853

F.3d 39, 58 (1st Cir. 2017) (holding intentional ABPO is not a

violent felony under the ACCA's identical force clause); see also

United States v. Rose, 896 F.3d 104, 110, 115 (1st Cir. 2018)

(explaining that crimes carrying a mens rea of ordinary

recklessness, including assault and battery with a dangerous - 7 - weapon under Massachusetts and Rhode Island law, are not violent

felonies under the force clause). Shea therefore asked the judge

to vacate his § 924(c) (Count Two) conviction and resentence him

without the Career Offender enhancement.

Generally, the federal habeas statute demands a prisoner

file any motion to vacate within a year of "the date on which the

judgment of conviction became final." 28 U.S.C. § 2255(f)(1).

There are exceptions, though. Section 2255(f)(3) restarts the

one-year clock on "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." Using that springboard,

Shea claimed that Johnson reopened the one-year window to mount

his vagueness challenges to the § 924(c) and § 4B1.2(a)(2) residual

clauses, so the court should vacate his § 924(c) conviction and

resentence him without the career-offender enhancement.

The district judge disagreed and dismissed Shea's

claims. Shea had blown the usual one-year post-conviction

deadline, and § 2255(f)(3) did not apply, the judge held. He

acknowledged that Johnson "newly recognized" a retroactive rule.

But he held that subsection (f)(3)'s exception required more. In

his view, "§ 2255(f)(3) does not come into play unless reasonable

jurists would agree that the new rule on which the petition is

based dictates the result that the petitioner seeks." "Absent - 8 - such agreement," he'd held before, "the prisoners' claimed right

must itself be treated as a new right that must await recognition

by the Supreme Court before the statute of limitations can be

restarted by § 2255(f)(3)." Kucinski v. United States, No. 16-

CV-201-PB, 2016 WL 4926157, at *4 (D.N.H. Sept. 15, 2016).

Applying that framework to this case, he concluded that judges

could reasonably debate whether the rule minted in Johnson made

the residual clauses in the pre-Booker Guidelines or § 924(c)

unconstitutionally vague, and therefore, Shea's petition was too

late (because it was filed long after his conviction became final)

and premature (because the Supreme Court had not yet "recognized"

a right that would entitle Shea to relief). Acknowledging that

the issue wasn't clear-cut, however, the judge granted a

certificate of appealability on the question of whether

§ 2255(f)(3) reopened the one-year period for Shea to bring his

Johnson-based attacks on his conviction and sentence. Shea took

the invite and appealed.

Framing the Issue

While Shea's appeal was pending, the Supreme Court

decided United States v. Davis, which held that § 924(c)'s residual

clause was unconstitutionally vague. 139 S. Ct. 2319, 2336 (2019).

In light of Davis, the parties now agree that Shea's Johnson-based

challenge to his § 924(c) conviction is timely, and that we should

remand for the district court to address whether Shea's conviction - 9 - for armed attempted bank robbery under 18 U.S.C. § 2113(a) and (d)

qualifies as a crime of violence under § 924(c)'s surviving

elements clause.2

With that settled, the only question left is whether

Johnson reopened the one-year window for any Johnson-based

challenges to the pre-Booker Guidelines' residual clause. Most of

our sister circuits have held it did not. See Nunez v. United

States, 954 F.3d 465, 467 (2d Cir. 2020); United States v. London,

937 F.3d 502, 503 (5th Cir. 2019); United States v. Blackstone,

903 F.3d 1020, 1023 (9th Cir. 2018); Russo v. United States, 902

F.3d 880, 883 (8th Cir. 2018); United States v. Green, 898 F.3d

315, 321 (3d Cir. 2018); United States v. Greer, 881 F.3d 1241,

1248 (10th Cir. 2018); United States v. Brown, 868 F.3d 297, 303

(4th Cir. 2017); Raybon v. United States, 867 F.3d 625, 629-30

2 Before us, the parties focused on the issue of whether attempted bank robbery under § 2113(a) constitutes a "crime of violence" under § 924(c). Although we leave the merits of the § 924(c) issue for the district court to take the first (and maybe the only) crack at it, we add that it appears Shea was convicted of the enhanced version of the offense -- not just attempted bank robbery under § 2113(a) but armed attempted bank robbery under § 2113(d). This difference may be significant. See United States v. Johnson, 899 F.3d 191, 204 (3d Cir. 2018) ("Johnson focuses on § 2113(a) . . . [h]owever, Johnson was not convicted under § 2113(a), but rather § 2113(d) . . . ."); United States v. Taylor, 848 F.3d 476, 493 (1st Cir. 2017) (analyzing similar challenge to a § 924(c) conviction in light of "the enhancement provisions that applied to Taylor's conviction"); see also Simpson v. United States, 435 U.S. 6, 13 n.6 (1978) (discussing § 2113(d)); United States v. Spinney, 65 F.3d 231, 236 (1st Cir. 1995) (same).

- 10 - (6th Cir. 2017). That these decisions have snowballed down one

path doesn't mean we should follow them, though. See In re Atlas

IT Exp. Corp., 761 F.3d 177, 182–83 (1st Cir. 2014) (citing the

"phenomenon in our courts of appeal and elsewhere — sometimes

called 'herding' or 'cascading'" under which later successive

courts to address a question "are increasingly more likely to

simply go along with the developing group consensus"). Indeed,

one circuit and most trial judges in ours have reached the opposite

conclusion. See Cross v. United States, 892 F.3d 288, 293–94,

304–06 (7th Cir. 2018).3 Though we take a different route than

the Seventh Circuit's, we hold that § 2255(f)(3) authorizes Shea

3 See Diaz-Rodriguez v. United States, C.A. No. 16-2064, 2020 WL 265932, at *1 (D.P.R. Jan. 17, 2020); Boria v. United States, 427 F. Supp. 3d 143, 149 (D. Mass. 2019); United States v. Moore, Cr. No. 00-10247, 2018 WL 5982017, *2-3 (D. Mass. Nov. 14, 2018); Bartolomeo v. United States, 316 F. Supp. 3d 539, 546 (D. Mass. 2018); United States v. Roy, 282 F. Supp. 3d 421, 427-428 (D. Mass. 2018); Reid v. United States, 252 F. Supp. 3d 63, 66-68 (D. Mass. 2017); see also Hodges v. United States, 778 F. App'x 413, 414–15 (9th Cir. July 26, 2019) (Berzon, J., concurring) (arguing Blackstone was wrongly decided); Chambers v. United States, 763 F. App'x 514, 528 (6th Cir. Feb. 21, 2019) (Moore, J., concurring) (arguing Raybon was wrongly decided); London, 937 F.3d at 510-11 (Costa, J., concurring) (arguing that the Fifth Circuit is "on the wrong side of a split over the habeas limitations statute"); Brown, 868 F.3d at 304–311 (Gregory, C.J., dissenting); United States v. Carter, 422 F. Supp. 3d 299, 314–17 (D.D.C. 2019); United States v. Hammond, 354 F. Supp. 3d 28, 40 (D.D.C. 2018). - 11 - to litigate his Johnson-based challenge to his sentence on its

merits.

We start with the common ground. The parties agree that

to show his petition is timely under § 2255(f)(3), Shea "needs to

establish that [Johnson]: (1) recognized a new right that is

(2) 'retroactively applicable' on collateral review."

Butterworth, 775 F.3d at 464. They agree that he has. In the

government's telling, however, it is not enough that Shea relies

on the rule minted in Johnson. Rather (it goes on) the rule from

Johnson must "necessarily dictate" that the residual clause in

pre-Booker Guidelines was unconstitutionally vague. In other

words (runs the argument), if to grant Shea's petition, the habeas

court would need to craft a new right — meaning a new rule of law

— beyond the one "recognized" in Johnson, then Shea's claim is too

early, and Johnson did not restart the clock under § 2255(f)(3).

See London, 937 F.3d at 506–09 (using this approach); Russo, 902

F.3d at 883 ("[T]he timeliness of [a Johnson-based] claim depends

on whether [the petitioner] is asserting [only] the right initially

recognized in Johnson or whether he is asserting a different right

that would require the creation of a second new rule."); Kucinski,

2016 WL 4926157, at *4 (same).

The Seventh Circuit has rejected this third step, saying

it "improperly reads a merits analysis into the limitations

period." Cross, 892 F.3d at 293–94 (holding that under - 12 - § 2255(f)(3), the petitioner only had to "claim the benefit of

[the] right that the Supreme Court has recently recognized" in

Johnson and did not have to "prove that the right applie[d] to his

situation"); Hammond, 354 F. Supp. 3d at 41 ("To 'assert' means

'[t]o state positively' or '[t]o invoke or enforce a legal right.'

Thus, in order to be timely under § 2255(f)(3), a § 2255 motion

need only 'invoke' the newly recognized right, regardless of

whether or not the facts of record ultimately support the movant's

claim." (alterations in original) (quoting United States v.

Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017)). We have not decided

the issue.4 But since we side with Shea anyway, we assume without

4 Our decision in Butterworth did not hold that § 2255(f)(3) requires that the right "newly recognized" by the Supreme Court must compel the relief the petitioner seeks, as the government suggests. There, we held that a recent Supreme Court case that announced a new rule did not apply retroactively to a petitioner sentenced before the case came down. 775 F.3d at 468. We did not hold that a new rule, if retroactive, would need to dictate the outcome on the merits of the petition in order for the petition to be timely. Indeed, in Moore v. United States, we held that a successive petition raising the same claim Shea does — a Johnson- based challenge to the pre-Booker Guidelines' residual clause — was timely under 28 U.S.C. § 2255(f)(3) because it was filed within one year after Johnson, even though we expressly declined to decide whether Johnson applied to the pre-Booker Guidelines. 871 F.3d 72, 77 n.3 (1st Cir. 2017). It is unclear if that statement in Moore binds us here, since our overall analysis (which chiefly concerned the requirements for filing a successive petition) was necessarily "tentative." Id. at 80.

- 13 - deciding that the government and the district court read §

2255(f)(3) correctly.

Therefore, to see if Shea's petition is timely under

§ 2255(f)(3), we'll ask (based on the facts Shea asserts) if

granting it would require the habeas court to forge a new rule of

law not recognized in Johnson. "'[A] case announces a new rule'"

if "'it breaks new ground or imposes a new obligation' on the

government" — that is, "'if the result [is] not dictated by

precedent[.]'" Chaidez v. United States, 568 U.S. 342, 347 (2013)

(first alteration in original) (quoting Teague, 489 U.S. at 301).

"And a holding is not so dictated" unless it "would [be] 'apparent

to all reasonable jurists.'" Id. (quoting Lambrix v. Singletary,

520 U.S. 518, 527–528 (1997)). "But that account has a flipside":

"a case does not 'announce a new rule when it is merely an

application of the principle that governed' a prior decision to a

different set of facts." Id. at 347–48 (alterations and internal

quotation marks omitted) (quoting Teague, 489 U.S. at 307). So

when a court "simply applie[s]" the same "constitutional

principle" to a "closely analogous" case, it does not create a new

rule. Yates v. Aiken, 484 U.S. 211, 216 (1988) (quoting Desist v.

United States, 394 U.S. 244, 263 (1969) (Harlan, J., dissenting)).

In other words, our timeliness analysis under

§ 2255(f)(3) will overlap with the merits of Shea's claim, because

we must determine whether Johnson establishes beyond reasonable - 14 - debate that the pre-Booker Guidelines' residual clause was too

vague to constitutionally enhance a defendant's sentence, at least

when no departure was applicable (as Shea asserts none was here).

In a more preliminary posture, we've already held that there was

a "reasonable likelihood" that the answer was yes: that a

defendant who (like Shea) claimed he'd been subjected to an

enhanced sentence because of the pre-Booker residual clause could

challenge his sentence as violating the vagueness rule minted in

Johnson. See Moore v. United States, 871 F.3d 72, 74, 80–84 (1st

Cir. 2017) (holding the petitioner made a "prima facie" showing

that his Johnson-based challenge ticked the boxes for filing a

successive petition, at least where there was "no suggestion . . .

that Moore qualified for a departure"). In this case, we go one

step further: even applying the government's framework (i.e., the

Teague test), we hold that Johnson dictates the rule Shea asserts:

namely, that § 4B1.2(a)(2)'s residual clause was

unconstitutionally vague and could not be applied to enhance the

permissible range of sentences a judge could impose, as Shea claims

it did in his case. As a result, we hold that Shea "asserts" the

same right "newly recognized" in Johnson, making his petition

- 15 - (filed within a year of that decision) timely. 28 U.S.C.

§ 2255(f)(3).5

Analysis

Johnson and Beckles

Johnson began with a well-established rule: that "the

Government violates [the Fifth Amendment] by taking away someone's

life, liberty, or property under a criminal law so vague that it

fails to give ordinary people fair notice of the conduct it

punishes, or so standardless that it invites arbitrary

enforcement." 576 U.S. at 595 (quoting Kolender v. Lawson, 461

U.S. 352, 357–358 (1983)). Such vague laws violate "the first

essential of Due Process." Id. at 595–96 (quoting Connally v.

Gen. Constr. Co., 269 U.S. 385, 391 (1926)). In the key phrase

here, the Court explained: "These principles apply not only to

statutes defining elements of crimes, but also to statutes fixing

sentences." Id. at 596 (citing United States v. Batchelder, 442

U.S. 114, 123 (1979)). The Court then moved to the residual

language at issue, which defined "violent felony" to include

certain enumerated offenses and "any felony that involves conduct

that presents a serious potential risk of physical injury to

another." Id. at 593. That phrase, as the Court had long construed

5 As we'll explain, we do not here decide whether Shea was in fact (as he contends) ineligible for a departure and exposed to higher sentences on account of the residual clause, but instead leave those merits issues for the district court to resolve. - 16 - it (to "require[ ] a court to picture the kind of conduct that the

crime involves in 'the ordinary case,' and to judge whether that

abstraction presents a serious potential risk of physical

injury"), left "grave uncertainty" about both "how to estimate the

risk posed by a crime" and "how much risk it takes for a crime to

qualify as a violent felony." Id. at 596–98. "Invoking so

shapeless a provision to condemn someone to prison for 15 years to

life does not comport with the Constitution's guarantee of due

process." Id. at 602. After Johnson, all but one circuit to

address the issue held that "[§] 4B1.2(a)'s identically-worded

[and interpreted] residual clause was unconstitutionally vague."

United States v. Frates, 896 F.3d 93, 96 (1st Cir. 2018). In our

circuit, the government "routinely" conceded that Johnson made the

Guidelines' residual clause unconstitutionally void. Id.

Two years later, however, the Supreme Court held that

although § 4B1.2(a)(2) contained the same vague language as the

ACCA, the advisory Guidelines were "not subject to vagueness

challenges." Beckles, 137 S. Ct. at 890. The Court made clear

that under Johnson, "'statutes fixing sentences' . . . must specify

the range of available sentences with 'sufficient clarity.'" Id.

at 892 (first quoting Johnson, 576 U.S. at 596, then quoting

Batchelder, 442 U.S. at 123). The ACCA had "fixed . . . a higher

range of sentences for certain defendants" because it "required

sentencing courts to increase a defendant's prison term from a - 17 - statutory maximum of 10 years to a minimum of 15 years" with a

maximum of life. Id. (emphasis added). In contrast, though, the

advisory Guidelines do not "fix the permissible range of sentences"

a judge may legally impose. Id. They "merely guide the exercise

of a court's discretion in choosing an appropriate sentence within

the statutory range," and "'do not constrain that discretion.'"

Id. at 894 (alteration omitted) (quoting Peugh v. United States,

133 S. Ct. 2072, 2089 (2013) (Thomas, J., dissenting)). For that

reason, the Court held, they do not "implicate the twin concerns

underlying the vagueness doctrine — providing notice and

preventing arbitrary enforcement." Id.; Moore, 871 F.3d at 77

(explaining that "Beckles's reasoning relied on the conclusion

that the post-Booker guidelines 'do not fix the permissible range

of sentences,' and therefore 'do not implicate the twin concerns

underlying vagueness doctrine'").

But what about pre-Booker sentences? Johnson and

Beckles did not directly address the mandatory Guidelines that

governed Shea's sentence. See Beckles, 137 S. Ct. at 903 n.4

(Sotomayor, J., concurring).6 Many circuits seem to think that

6 Unlike our sister circuits, we do not believe that Justice Sotomayor's oft-cited comment in her concurrence — that the Court left "open the question whether defendants sentenced to terms of imprisonment before our decision in [Booker] . . . may mount vagueness attacks on their sentences" — means that judges could reasonably debate whether Johnson applies to the pre-Booker Guidelines. Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J.,

- 18 - ends the matter — holding that since the Court has not expressly

held that the rule coined in Johnson applies to the pre-Booker

Guidelines, a petitioner cannot rely on that rule to challenge a

mandatory-Guideline career-offender sentence under § 2255(f)(3),

even (apparently) if any reasonable jurist would conclude it

applies to the mandatory Guidelines.7 But not even the government

urges us to read § 2255(f)(3) so woodenly. Nor could it: as we

concurring). First, the Justice's statement could easily be read to mean that the "open" question is whether prisoners sentenced before Booker — mostly all of whose convictions became final more than a year before Johnson — may invoke § 2255(f)(3) to "mount vagueness attacks on their sentences" (the question we answer yes to in this case). Id. Second, even if she meant to address the Teague question here (which was far afield from the issue presented), a non-controlling opinion for one justice is, of course, not binding on us. Finally, in Stringer (discussed more below), the Court explained that its holding did not establish a "new rule" even though it answered a question a previous majority opinion had "express[ly]" deemed an "open" one. Stringer v. Black, 503 U.S. 222, 230 (1992).

7 See Nunez, 954 F.3d at 470 (reasoning that "Johnson by its own terms addresses only the ACCA," so "the rule established in Johnson was specific" to that statute); Blackstone, 903 F.3d at 1026 (holding petition untimely because "[n]either Johnson nor Welch mentioned the mandatory or advisory Sentencing Guidelines"); Green, 898 F.3d at 321 (reasoning that "Johnson's holding as to the residual clause in the ACCA created a right only as to the ACCA" because "[i]t says nothing about a parallel right to not be sentenced under Sentencing Guidelines, whether advisory or mandatory"); Greer, 881 F.3d at 1248 ("[T]he only right recognized by the Supreme Court in Johnson was a defendant's right not to have his sentence increased under the residual clause of the ACCA," and the petitioner could not use § 2255(f)(3) "to apply the reasoning of Johnson in a different context not considered by the Court."); Brown, 868 F.3d at 303 (reasoning that "Johnson only recognized that ACCA's residual clause was unconstitutionally vague" and "did not touch upon" the Guidelines' identically-worded residual clause); Raybon, 867 F.3d at 630 (similar). - 19 - said in Moore, "Congress in § 2255 used words such as 'rule' and

'right'" because "it recognizes that the Supreme Court guides" —

and indeed binds — "the lower courts not just with technical

holdings" confined to the precise facts of each case "but with

general rules that are logically inherent in those holdings." 871

F.3d at 82; see also Booker, 543 U.S. at 238 ("More important than

the language used in our holding . . . are the principles we sought

to vindicate."). As the government accepts, a rule or right

recognized in one case can (and often does) control another with

a "different set of facts." Chaidez, 568 U.S. at 348. So a

decision striking one law often compels a court to undo another.

In Stringer v. Black, that's just what happened. 503

U.S. 222, 229 (1992). There, the Supreme Court held that its

decision voiding one state's capital sentencing scheme (because it

allowed the jury to return a death verdict based on an aggravating

factor that state law defined too vaguely) "controlled" its later

decision striking another state's law that used different

language, so that the second case "did not announce a new rule."

Id. at 228–29 ("[I]t would be a mistake to conclude that the

vagueness ruling of Godfrey was limited to the precise language

before us in that case."). Indeed, the Court went further.

Although there were "differences in the use of aggravating factors"

under each state's schemes, the Court concluded that "those

differences could not have been considered a basis for denying - 20 - relief" in light of the principles established by other cases the

Court had decided before the petitioner's conviction became final.

Id. at 229–30. In other words, the Supreme Court does not announce

a new rule every time it applies the same constitutional principle

to a new regulatory scheme. "If a proffered factual distinction

between the case under consideration and pre-existing precedent

does not change the force with which the precedent's underlying

principle applies, the distinction is not meaningful, and any

deviation from precedent is not reasonable." Wright v. West, 505

U.S. 277, 304 (1992) (O'Connor, J., concurring) (citing Stringer,

503 U.S. at 237).

The Mandatory Guidelines

Even so, says the government, the rule applied in Johnson

does not control the pre-Booker Guidelines because, unlike the

ACCA, the mandatory Guidelines were not "statutes" and do not "fix

sentences" because they "did not increase the statutory minimum or

maximum penalty facing the defendant." To be sure (the government

admits) "[t]he guideline regime cabined where within the statutory

range the district court had to sentence the defendant," but it

permitted departures in some circumstances. At least three other

circuits have found these distinctions provide reasonable grounds

to debate whether Johnson's rule reaches the pre-Booker

- 21 - Guidelines.8 One (and only one) circuit has actually debated the

issue by holding that on the merits, the pre-Booker residual clause

would be immune to Johnson-based vagueness challenges. See In re

Griffin, 823 F.3d 1350, 1354–55 (11th Cir. 2016) (reasoning that

mandatory Guidelines differed meaningfully from the ACCA because

they did not "alter the statutory sentencing range set by Congress

for the crime").9 Shea disagrees with those cases. By his logic,

Johnson established that vague laws that fix the permissible range

of sentences a judge can impose (by establishing a new mandatory

minimum or maximum sentence) violate the Due Process Clause; the

8 See London, 937 F.3d at 507 (holding that voiding the pre- Booker residual clause would require a new rule because the Guidelines "did not statutorily increase the risk [the defendant] faced at sentencing" because "the statutory minimum and maximum sentence he faced remained the same"); United States v. Pullen, 913 F.3d 1270, 1281–82 (10th Cir. 2019) ("[C]entral to why the question remains open is that Johnson involved a federal statute, while the Guidelines, even in their mandatory form, were agency- created rules formed by the U.S. Sentencing Commission to supplement existing, congressionally-enacted statutory maximum and minimum sentencing ranges."); Russo, 902 F.3d at 883 (same because neither Johnson nor Beckles "addressed possible distinctions between a provision that establishes a statutory penalty and a mandatory guideline provision that affects sentences within a statutory range, subject to authorized departures"). 9 By the way, as we explained in Moore, that the Eleventh Circuit decided the merits differently in Griffin does not "mean that a contrary conclusion would be a new rule of constitutional law." 871 F.3d at 81; see Wright, 505 U.S. at 304 (O'Connor, J. concurring) (explaining that because "the standard for determining when a case establishes a new rule is 'objective,'" "the mere existence of conflicting authority does not necessarily mean a rule is new") (citing Stringer, 503 U.S. at 237).

- 22 - vague § 4B1.2(a)(2) residual clause required the judge to sentence

Shea to 262–327 months in prison (a sentence far greater than the

statutory minimum); and therefore, his sentence violated the rule

announced in Johnson.

As we previewed earlier, we side with Shea. "[B]ased on

an objective reading of the relevant cases," Stringer, 503 U.S. at

237, the government's proffered distinctions between the ACCA and

the mandatory Guidelines do "not change the force with which

[Johnson's] underlying principle applies" when, as in most cases,

the defendant was ineligible for a departure from the Guideline

range. Wright, 505 U.S. at 304 (O'Connor, J., concurring).

(i) Statutes vs. Rules

To start with, given Supreme Court precedent, no

reasonable jurist could think the rule in Johnson applies only to

statutes. It is crystal clear that the same two-pronged vagueness

test that governed Johnson applies with equal force to regulations

that have the force of law. See FCC v. Fox Television Stations,

Inc., 567 U.S. 239, 253 (2012) ("A conviction or punishment fails

to comply with due process if the statute or regulation under which

it is obtained 'fails to provide a person of ordinary intelligence

fair notice of what is prohibited, or is so standardless that it

authorizes or encourages seriously discriminatory enforcement.'"

(quoting United States v. Williams, 553 U.S. 285, 304 (2008))

(emphasis added)); accord Beckles, 137 S. Ct. at 894–95 (citing - 23 - Fox, 567 U.S. at 253, and framing the void-for-vagueness "question

[as] whether a law" — not just a statute — "regulating private

conduct by fixing permissible sentences provides notice and avoids

arbitrary enforcement by clearly specifying the range of penalties

available"). And as the Supreme Court held before Booker, the

mandatory Guidelines were "the equivalent of legislative rules

adopted by federal agencies." Stinson v. United States, 508 U.S.

36, 45 (1993). "Because they [were] binding on judges," the Court

had "consistently held that the Guidelines ha[d] the force and

effect of laws." Booker, 543 U.S. at 234. So "the fact that

[they] were promulgated by the Sentencing Commission, rather than

Congress, lacks constitutional significance." Id. at 237; see

also United States v. R.L.C., 503 U.S. 291, 297 (1992) (stating

that "the answer to any suggestion that the statutory character of

a specific penalty provision gives it primacy over administrative

sentencing guidelines is that the mandate to apply the Guidelines

is itself statutory," as we're about to explain).

(ii) Fixing Sentences

In addition, unlike the advisory version, the mandatory

Guidelines "did 'fix the permissible range of sentences'" a judge

could impose on certain defendants. Beckles, 137 S. Ct. at 903

n.4 (Sotomayor, J., concurring); accord Booker, 543 U.S. at 243

(rejecting notion that "the Guidelines as currently written could

be read as merely advisory provisions that recommended, rather - 24 - than required, the selection of particular sentences"). In fact,

they did so by statute. As the Court explained in Booker, the

Sentencing Reform Act ("SRA") required the judge to "'impose a

sentence of the kind, and within the range' established by the

Guidelines" in all but "specific, limited cases" in which the SRA

allowed a departure. Id. at 234 (quoting 18 U.S.C. § 3553(b)).

Therefore, at least in the ordinary case (where no departure was

available), the Court held that the Guidelines — not the

defendant's statute of conviction — set the relevant "maximum"

sentence. Id. at 234. For that reason, the Supreme Court held

that Guideline enhancements routinely violated the rule in

Apprendi v. New Jersey — that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt," 530 U.S. 466, 490 (2000),

because (at least in most cases) they raised the "legally

permissible" range of sentences based on facts found by the judge,

rather than a jury. Booker, 543 U.S. at 230–35; see also id. at

238 ("The Government correctly notes that in Apprendi we referred

to 'any fact that increases the penalty for a crime beyond the

prescribed statutory maximum' . . . [but the] principle[ ] [is]

unquestionably applicable to the Guidelines.").

That the Guidelines allowed departures in "specific,

limited cases" did not change the fact that in all others, they - 25 - worked no differently than a statute setting a sentencing range.

Id. at 234. As the Court explained:

The Guidelines permit[ted] departures from the prescribed sentencing range in cases in which the judge "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b)(1) (2000 ed., Supp. IV). At first glance, one might believe that the ability of a district judge to depart from the Guidelines means that she is bound only by the statutory maximum. Were this the case, there would be no Apprendi problem. Importantly, however, departures [were] not available in every case, and in fact [were] unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge [was] bound to impose a sentence within the Guidelines range.

Id. (emphasis added). "Booker's case illustrat[ed] the mandatory

nature of the Guidelines," the Court added: as "a run-of-the-mill

drug case, [it did] not present any factors that were inadequately

considered by the Commission. The sentencing judge would therefore

have been reversed had he [departed and] not imposed a sentence

within the . . . Guidelines range." Id. at 235. In other words,

for most defendants — those who were not eligible for a departure

— the mandatory Guidelines "fix[ed] the permissible range of

sentences" the judge could impose. Beckles, 137 S. Ct. at 892.

No, Booker did not apply the void-for-vagueness doctrine - 26 - or use the word "fix." Rather, it construed "the Sixth Amendment

right of criminal defendants to be tried by a jury and to have

every element of an offense proved by the Government beyond a

reasonable doubt." Pepper v. United States, 562 U.S. 476, 489

(2011) (citing Booker, 543 U.S. at 243–44); see Alleyne v. United

States, 570 U.S. 99, 111 (2013) (explaining that "'facts that

increase the prescribed range of penalties to which a criminal

defendant is exposed' are elements" of a "'separate legal offense'"

that must be charged in the indictment and found by the jury

(quoting Apprendi, 530 U.S. at 483 n.10, 490)). In Beckles,

however, the Court drew from the Booker line of cases to

distinguish laws that "fix" sentences (which are subject to

vagueness challenges) from laws that "merely guide" judicial

discretion (which are not). Beckles, 137 S. Ct. at 892. Indeed,

the Court indicated that it pulled the term "fixed" from Alleyne,

which "describe[d] the legally prescribed range of available

sentences as the penalty fixed to a crime." Beckles, 137 S. Ct.

at 892.

In Alleyne, the Court made clear that under the Sixth

Amendment analysis that doomed the mandatory Guidelines, a fact

that raises either (maximum or minimum) end of the "the legally

prescribed range of sentences to which a criminal defendant is

exposed" necessarily changes "the penalty affixed to the

[defendant's] crime." 570 U.S. at 112 (emphasis added) (reasoning - 27 - that "the legally prescribed range is the penalty affixed to the

crime"); see also United States v. Haymond, 139 S. Ct. 2369, 2378

(2019) (plurality opinion) ("[B]y definition, a range of

punishments includes not only a maximum but a minimum," meaning

that "[b]oth the 'floor' and 'ceiling' of a sentencing range

'define the legally prescribed penalty.'" (quoting Alleyne, 570

U.S. at 112)). That's because historically, the law defined a

"'crime' as consisting of every fact which 'is in law essential to

the punishment sought to be inflicted,' or the whole of the wrong

'to which the law affixes punishment.'" Alleyne, 570 U.S. at 109

(quoting 1 J. Bishop, Criminal Procedure 50 (2d ed. 1872)). So

when a fact bumps up "the legally prescribed punishment" (meaning

it "affixes" a new penalty to the defendant's conduct) it

necessarily "constitutes an element of a separate, aggravated

offense that must be found by the jury." Id. at 114–15; see also

id. at 112 ("It is impossible to dissociate the floor of a

sentencing range from the penalty affixed to the crime."). In

contrast, a judge may decide facts that merely "guide judicial

discretion in selecting a punishment 'within limits fixed by law.'"

Id. at 113 n.2 (quoting Williams v. New York, 337 U.S. 241, 246

(1949)). Viewed through Alleyne's lens, then, the mandatory

Guidelines violated the Sixth Amendment (at least when no departure

was available) because they changed the range of penalties

"affixed" to the defendant's conduct, even if some other statute - 28 - listed a higher so-called "maximum" sentence for the crime of

conviction. If they had "merely guide[d]" judicial discretion,

instead of "fixing" its limits, Beckles, 137 S. Ct. at 892, they

would not have broken the Apprendi rule, as Booker held they did.

See Alleyne, 570 U.S. at 116–17; accord Booker, 543 U.S. at 234.

In our view, therefore, the precedent leaves no room for

debate: when the pre-Booker Guidelines "bound [the judge] to

impose a sentence within" a prescribed range, Booker, 543 U.S. at

234–35, as they ordinarily did, they necessarily "fixed the

permissible range of sentences" (s)he could impose, Beckles, 137

S. Ct. at 892, whether they "fixed" a higher maximum or minimum

sentence. See Davis, 139 S. Ct. at 2336 (striking down

§ 924(c)(3)(B), which enhanced the mandatory minimum — but not

always the maximum — sentence required for certain defendants who

used or carried a firearm in a "crime of violence" based on a

similar residual clause as unconstitutionally vague).

It's easy to see why vague laws that "fix" sentences for

Apprendi/Alleyne purposes violate the Due Process Clause. The

Apprendi rule applied in Booker serves two main functions. First,

fair notice: requiring the indictment to allege "every fact which

is legally essential to the punishment to be inflicted . . .

enable[s] [the defendant] to determine the species of offence with

which he [is] charged in order that he may prepare his defence

accordingly" and have "no doubt as to the judgment which should be - 29 - given, if the defendant be convicted." Alleyne, 570 U.S. at 111

(quotations omitted); see also id. at 113–14 ("Defining facts that

increase a mandatory statutory minimum to be part of the

substantive offense enables the defendant to predict the legally

applicable penalty from the face of the indictment"). But an

indictment can't provide the notice the Constitution requires if

the crime it charges is itself "so vague the defendant [can't]

tell what he's alleged to have done and what sort of witnesses he

might need to rebut that charge." Sessions v. Dimaya, 138 S. Ct.

1204, 1227 (2018) (Gorsuch, J. concurring) (observing that the

Sixth Amendment fair trial rights, like other constitutional

protections, "presuppose and depend on the existence of reasonably

clear laws"). The Apprendi rule also guards against "the threat

of 'judicial despotism' that could arise from 'arbitrary

punishments upon arbitrary convictions,'" by requiring the jury to

find each fact "the law makes essential to his punishment."

Booker, 543 U.S. at 232, 238 (first quoting The Federalist No. 83,

at 499 (A. Hamilton) (C. Rossiter ed., 1961), then quoting Blakely

v. Washington, 542 U.S. 296, 301 (2004)). But if jurors can't

tell what "facts" are "essential," and the judge can't educate

them (without making up the law arbitrarily), then the jury can't

do its job. We could hardly expect twelve people to "confirm"

"the truth of [an] accusation," id. at 239 (emphasis omitted)

- 30 - (quoting Apprendi, 530 U.S. at 477), that even the judge can't

decipher.

Without a doubt, then, when no departure applied, the

vague residual clause that Shea claims raised his sentencing range

(which told us an offense was a "crime of violence" if it posed a

"'serious potential risk of physical injury to another'" in the

abstract "ordinary case" of the crime, Frates, 896 F.3d at 95–96,

99 (emphases added) (quoting U.S.S.G. § 4B1.2(a)(2))) triggered

the "twin concerns underlying vagueness doctrine — providing

notice and preventing arbitrary enforcement." Beckles, 137 S. Ct.

at 894. To see why, consider the reasons Beckles gave for why the

advisory Guidelines didn't "implicate" those interests. First,

[a]s to notice, even perfectly clear [advisory] Guidelines could not provide notice to a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range. That is because even if a person behaves so as to avoid an enhanced sentence under the career-offender guideline, the sentencing court retains discretion to impose the enhanced sentence. . . . "[T]he due process concerns that . . . require notice in a world of mandatory Guidelines no longer" apply . . . . All of the notice required is provided by the applicable statutory range, which establishes the permissible bounds of the court's sentencing discretion.

Id. (citations omitted). As to the second "twin concern," a law

"invites arbitrary enforcement" if it "'leaves judges and jurors

free to decide, without any legally fixed standards, what is

prohibited and what is not in each particular case' . . . or - 31 - permits them to prescribe the sentences or sentencing range

available." Beckles, 137 S. Ct. at 894–95 (first quoting Giaccio

v. Pennsylvania, 382 U.S. 399, 402–03 (1966), then citing Alleyne,

570 U.S. at 111-14). Since the advisory Guidelines did not "fix

the permissible range of [the] petitioner's sentence," "the

District Court did not 'enforce' the [advisory] career-offender

Guideline against" Beckles: it just "relied on [the Guideline]

for advice in exercising its discretion to choose a sentence within

th[e] statutory limits." Id. at 895.

In contrast, the pre-Booker Guidelines themselves

routinely "establishe[d] the permissible bounds of the court's

sentencing discretion." Id. at 894. When the Career Offender

Guideline shot up the maximum permissible sentence (because there

was no ground for an upward departure from the base guideline

range), the judge could not have imposed the same range of

penalties as without the enhancement.10 See Booker, 543 U.S. at

236–37. Even when it only "[e]levat[ed] the low-end of [the]

sentencing range" (as Shea claims it at least did in his case

because there were no grounds for a downward departure), the

guideline increased "the defendant's 'expected punishment . . .

10 Here, for instance, giving Shea the same sentence without the Career Offender enhancement would have required a steep 165- month upward departure (the difference between the high-end of Shea's Guidelines range without the Career Offender enhancement and his actual sentence) if the enhancement hadn't applied. - 32 - as a result of the narrowed range[.]'" Alleyne, 570 U.S. at 113

(quoting Apprendi, 530 U.S. at 522 (Thomas, J., concurring)). So

clearer standards would have warned a defendant (with

constitutionally adequate certainty) "how to regulate his conduct

so as to avoid" an enhanced mandatory range of punishments. See

id. at 112–13 (explaining that laws defining the minimum and

maximum sentences permissible historically "allowed those who

violated the law to know, ex ante, the contours of the penalty

that the legislature affixed to the crime" and "comport[ed] with

the obvious truth that the floor of a mandatory range is as

relevant to wrongdoers as the ceiling").11

That's not all. Even if the mandatory Career Offender

Guideline somehow avoided "[t]he due process concerns that . . .

11 Although the government does not argue this point, we realize that as a practical matter, someone mulling committing a crime (viewing things "ex ante," as the Romans would say) might not know (or be realistically able to predict) whether he'd qualify for a departure if he followed through with the deed. Some grounds for departure — like the defendant's "substantial assistance" to the government, or extraordinary post-offense rehabilitation — depended on post-offense conduct. See Pepper, 562 U.S. at 503 n.16; United States v. Craven, 239 F.3d 91, 99 (1st Cir. 2001) ("It is only the occasional instance, where time and circumstances permit and the accused takes full advantage of both, that will produce rehabilitation so dramatic as to" warrant a downward departure (quoting United States v. Sklar, 920 F.2d 107, 115-16 (1st Cir. 1990)).); U.S.S.G. § 5K1.1. But as the Seventh Circuit recognized, statutory minima have similar escape hatches. See 18 U.S.C. § 3553(e), (f). Yet no one suggests these limited safety valves unlocked by post-offense efforts insulate statutes fixing mandatory minima, like the provisions struck in Johnson and Davis, from vagueness challenges. See Cross, 892 F.3d at 306 (concluding

- 33 - require notice in a world of mandatory Guidelines" — the vague

residual clause unquestionably "permits [judges] to prescribe the

sentences or sentencing range available" "without any legally

fixed standards." Beckles, 137 S. Ct. at 894–95. When the clause

applied and no downward departure was available, "the prosecution

[was] empowered, by invoking the [enhanced] mandatory minimum, to

require the judge to impose a higher penalty than he might wish."

Alleyne, 570 U.S. at 113 (quoting Apprendi, 530 U.S. at 522

(Thomas, J. concurring)). In such cases, the judge had to

"enforce" the clause against the defendant. Beckles, 137 S. Ct.

at 894–95; see United States v. Piper, 35 F.3d 611, 620 (1st Cir.

1994) ("The career offender regime, as crafted by Congress and the

Sentencing Commission, is harsh, but the courts are obliged to

enforce it according to its tenor. The district court did so

here."). Yet the language gave judges no clear standards for

deciding when the law bound them to enhance the permissible range

that those safety valves demonstrate that "some play in the joints is not enough to change the character of either statutory sentencing limitations or the pre-Booker guidelines from mandatory to advisory"). If the Career Offender residual clause were clear enough to signal when it would apply, prospective defendants could still behave so as to avoid conduct that would trigger its enhanced minimum and necessitate post-offense efforts (if available at all) to escape it. And in any event, by the time of sentencing — when a given defendant could ascertain that he did not qualify for a departure — the guideline undeniably fixed the sentences the judge could impose and invited arbitrary enforcement, to say nothing of the potential impediments the vague residual clause imposed on a defendant's ability to argue the enhancement did not apply. - 34 - — leaving that to "guesswork" and "invit[ing] arbitrary

enforcement." Johnson, 576 U.S. at 597–602.

As such, the mandatory Guidelines' residual clause

implicated both concerns driving the vagueness doctrine. Just as

it did in Johnson, "[i]nvoking so shapeless a provision to condemn

someone to prison" for almost 21 to 27 years "does not comport

with the Constitution's guarantee of due process." Id. at 602.

(iii) Departures

In its last effort to dodge the Johnson train, the

government suggests that the fact that judges could depart in some

cases gives grist for a reasonable claim that the mandatory

Guidelines did not "fix" sentences like the ACCA did Johnson's.

But the government does not argue (and it is unlikely, on this

record, that it could) that Shea's case is one of those "specific,

limited" cases in which the Guidelines permitted a departure.

Booker, 543 U.S. at 234. Remember: under the SRA, departures

were "unavailable" to most defendants. Booker, 543 U.S. at 232–

35; see also Moore, 871 F.3d at 83 (noting that

"[d]epartures . . . were limited in scope, and sentencing courts

had little leeway in employing them," and citing six cases in which

we held departures unauthorized); United States v. Pereira, 272

F.3d 76, 80 (1st Cir. 2001) ("[E]xisting caselaw define[d] the

parameters for departure, outside of which a court [could ]not go

without assuming the risk of acting beyond permissible limits."); - 35 - Reid, 252 F. Supp. 3d at 67 & n.2 (describing the mandatory

Guidelines as a "rigidly imposed . . . straitjacket" under which

we "stringently policed any sentences below the applicable

Guideline range" and "district judges were compelled to impose

harshly inflated prison terms on thousands of defendants"). So in

cases where it applied, the mandatory residual clause almost always

exposed the defendant to a higher maximum or minimum sentence —

and most often to both, thereby raising "the penalty affixed to

the crime," Alleyne, 570 U.S. at 112, and triggering the dual

concerns animating the vagueness doctrine.

Shea asserts that his case was a typical one — that the

Career Offender Guideline (rather than the force clause or an

exercise of departure discretion) enhanced his sentence as "no

downward departures were available" here. Specifically (he

claims), the vague residual clause "fixed his minimum sentence at

262 months, thereby meaningfully altering his sentencing range.

Thus, [his] sentencing judge could not have imposed between zero

and 262 months of incarceration, even though the statute permitted

such a sentence."12 The record appears to support that claim.

12These quotes from Shea's reply memo clarify the position Shea took in his opening brief, which argued that under Johnson, "a provision that defines a crime or fixes a sentence by application of double indeterminacy [i.e., uncertainty about the "ordinary case" of the crime and the "potential risk" it posed] is unconstitutionally vague." Appellant's Br. at 13; see also id. at 8 (arguing that "the [mandatory] guideline residual clause and the

- 36 - After a full presentence investigation, Shea's probation officer

wrote that she knew of "no factors, mitigating or aggravating,

which would justify a departure from the guideline range." And as

far as we can tell, no one else has ever identified any ground on

which the judge could have departed. On this record, then, the

habeas court could plausibly agree with Shea and conclude (as the

Supreme Court did in Booker, and as we did in several pre-Booker

cases) that the Guideline foreclosed a departure and fixed the

range of sentences the judge could have imposed. See Booker, 543

ACCA residual clause . . . are textually the same and operate in the same way" because "they fix a sentence by application of double indeterminacy") (emphases added). He argued that this rule "applie[d] to the mandatory career offender guideline residual clause." Id. at 20. But he did not address the exceptional cases in which the Guidelines were not (strictly speaking) "mandatory" because the defendant was eligible for a departure from the guideline range. The government's response raised the departure issue first — in its (one-liner) responsive argument that courts' "ability to depart" in some cases distinguished the pre-Booker guideline regime from the ACCA. In reply Shea explained (as we quote above) that the departure point was neither here nor there because, as in Booker (and as the PSR suggested), none was available to him — so his opening arguments about how the guidelines were "mandatory" and "fixed" sentences still applied with full force. "While a reply brief is not the proper place to raise new arguments, it is proper for a court to look there for clarification," United States v. Bradstreet, 207 F.3d 76, 80 n.1 (1st Cir. 2000) (citation omitted), especially when (as here) that clarification responds to an argument raised for the first time in the appellee's brief, see Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("Often, counterpoints and rebuttal rejoinders arise or fit most naturally as a reply to an opposition argument that could not have reasonably been anticipated. Neither our rules nor fairness require a robust application of waiver in such circumstances."); Holmes v. Spencer, 685 F.3d 51, 66 (1st Cir. 2012) (considering arguments raised for first time in reply to new argument advanced in appellee's brief). - 37 - U.S. at 235; United States v. Gendraw, 337 F.3d 70, 72–73 (1st

Cir. 2003) (determining on appeal that the record "provide[d] no

basis for departure on any ground" from the career-offender

guideline range, such that "any decision by the district court

granting a downward departure would have to be reversed"); United

States v. Rushby, 936 F.2d 41, 43 (1st Cir. 1991) (concluding that

if "the district court [had] departed on the basis of these facts

[to which the appellant pointed], its decision could not have

withstood legal challenge"). All of this bolsters Shea's

contention that his petition invokes a rule Johnson dictates —

because if no departure was available, then his sentence was

"fixed" by the mandatory Career Offender Guideline, rather than

the ranges described in his statutes of conviction.

As we've already explained, the possibility of

departures in other, exceptional cases did not make the pre-Booker

Guidelines any less mandatory in cases where no departure was

available — cases like Freddie Booker's, Booker, 543 U.S. at 234,

256-57, and this one, as Shea describes it. So even if jurists

might reasonably debate whether the rule announced in Johnson would

apply to a defendant who, in addition to receiving a Career

Offender designation under the Guidelines, was eligible for a

departure, they could not reasonably disagree that Johnson applies

when the Career Offender Guideline's residual clause fixed the

permissible sentences, as Shea reasonably claims it did here. See - 38 - id. at 233-34 (expressly holding that at least in no-departure

cases the Guidelines "have the force and effect of laws" and

"require[] the selection of particular sentences").

As a result, we conclude that in a case where no

departure was available, the residual clause in the mandatory

Career Offender Guideline was, beyond reasonable debate, "a law

regulating private conduct by fixing permissible sentences" that

did not "provide notice[ ] and avoid[ ] arbitrary enforcement by

clearly specifying the range of penalties available." Beckles,

137 U.S. at 895. As such, the rule recognized in Johnson dictates

that in such cases, that residual clause violated due process. By

asserting that the judge relied on that clause to enhance his

mandatory sentence, Shea therefore "asserts" the

"right . . . newly recognized" in Johnson. 28 U.S.C. §

2553(f)(3); see Chambers, 763 F. App'x at 524–27 (Moore, J.,

concurring); Brown, 868 F.3d at 309–10 (Gregory, C.J.,

dissenting); Carter, 422 F. Supp. 3d at 314–17; Hammond, 354 F.

Supp. 3d 44–49; see also supra n.3 (citing cases that reached a

similar conclusion).

Wrap Up

The upshot is that both of Shea's claims are timely.

The government does not (in this appeal) raise any other threshold

bar to granting Shea relief. Rather, it advises that "[i]f this

Court concludes that the defendant's § 2255 challenge to his career - 39 - offender designation is timely, the matter should be remanded to

the district court to consider the merits."

We agree with the government. We ordinarily do not

"consider the merits of an issue advanced by a habeas petitioner

unless a COA first has been obtained with respect to that issue."

Butterworth, 775 F.3d at 469 (quoting Peralta v. United States,

597 F.3d 74, 83 (1st Cir. 2010)). And in any event, "[w]e generally

do not rule on questions — whether of fact or of law — until a

district court has done so, a practice that enhances the quality

of our decisions both by allowing us to consider the district

court's analysis and by allowing the parties to hone their

arguments before presenting them to us." Moore, 871 F.3d at 79

(quoting Evans-García v. United States, 744 F.3d 235, 237–38 (1st

Cir. 2014)). In this case, the COA only teed up the timeliness

issue, and the district court did not broach the merits.

What's more, to win on the merits of his Johnson-based

challenge to his sentence, Shea will need to prove "by a

preponderance of the evidence" that his "sentence rested on the

residual clause" of the Career Offender Guideline. Dimott v.

United States, 881 F.3d 232, 240–43 (1st Cir. 2018) (holding that

"[t]o prove a Johnson [ ] claim, the movant must show that — more

likely than not — it was the use of the residual clause that led

to the sentencing court's enhancement of his sentence") (quoting

Beeman v. United States, 871 F.3d 1215, 1221–22 (11th Cir. 2017))). - 40 - Shea argues that it must have. He now concedes that his prior

armed robbery would still have qualified as a crime of violence,

but he argues that the only other two candidates — Massachusetts

A&B and ABPO — did not satisfy the surviving clauses of

§ 4B1.2(a)(2), at least under current precedent. Appellant's Br.

at 21–23 (citing Rose, 896 F.3d at 109–10, and Faust, 853 F.3d at

50–51, 60, among other cases). In his papers below, he also cited

cases suggesting that those crimes qualified as predicates only

under the residual clause when he was sentenced. See Fernandez,

121 F.3d at 778–80 (explaining that Massachusetts ABPO qualified

as a predicate under the residual clause at the time of Shea's

sentencing); see also Dimott, 881 F.3d at 242 (noting that a

petitioner may rely on precedent existing at the time of

sentencing, among other things, to make the required showing). To

rule for Shea on the merits, the district court will need to

resolve this issue of fact (to the extent that it's disputed) on

remand. See Pullman-Standard v. Swint, 456 U.S. 273, 291–92 (1982)

(explaining that "[f]actfinding is the basic responsibility of

district courts, rather than appellate courts, and . . . the Court

of Appeals should not . . . resolve[ ] in the first instance [a]

factual dispute which ha[s] not been considered by the District

Court" (quoting DeMarco v. United States, 415 U.S. 449, 450, n.*

(1974)). Moreover, because the rule Johnson recognized applies

only when the residual clause fixed a higher maximum or minimum - 41 - sentence (as was the case when the judge could not have departed),

Shea will have to show that it more-likely-than-not did so in his

case.13

Enough said then. We vacate the judgment and remand for

further proceedings consistent with this opinion.

-Dissenting Opinion Follows-

13 We do not intend to foreclose the district court from considering any other bar to relief that the government has not forfeited. See, e.g., Bartolomeo v. United States, 960 F.3d 34, 48 (1st Cir. 2020) (holding that the district court did not clearly err in finding that any error in applying the mandatory residual clause did not prejudice the petitioner because the parties had agreed at sentencing to a 35-year above-guideline sentence). - 42 - SELYA, Circuit Judge (dissenting). Time-and-number

limitations, generally applicable to certain collateral review

proceedings, may sometimes be relaxed when a petitioner seeks to

avail himself of a new rule of constitutional law announced by the

Supreme Court and expressly made retroactive to cases previously

decided. See Teague v. Lane, 489 U.S. 288, 310 (1989) ("[N]ew

constitutional rules of criminal procedure will not be applicable

to those cases which have become final before the new rules are

announced . . . [u]nless they fall within an exception to the

general rule."); see also Welch v. United States, 136 S. Ct. 1257,

1264 (2016) (discussing exceptions to general bar on

retroactivity). But this principle does not provide free rein to

the lower federal courts — the courts of appeals and the district

courts — either to extend a rule into uncharted waters or to

speculate about where a Supreme Court decision might eventually

lead. My colleagues' decision crosses this line, staking out a

position that the Court has yet to articulate. Because I cannot

join this excursion into forbidden terrain, I write separately.

Let me set the stage. Here, Shea aspires to file his

habeas petition out of time, and the applicable statute requires

that the right he asserts must previously have been recognized by

the Supreme Court. See 28 U.S.C. § 2255(f)(3). This right, he

says, entails the invalidation of the residual clause of the

pre-Booker career offender provision of the sentencing guidelines. - 43 - See United States v. Booker, 543 U.S. 220 (2005). Viewed in

context, this proposition depends on the accuracy of Shea's

assertion that this "new right" was previously recognized by the

Supreme Court. Teague, 489 U.S. at 301 ("[A] case announces a new

rule if the result was not dictated by precedent existing at the

time the defendant's conviction became final."). To establish

this necessary element of his case, Shea relies on the Supreme

Court's decision in Johnson v. United States, 576 U.S. 591 (2015).

Shea's reliance is mislaid: despite my colleagues'

heroic efforts in his behalf, such a link cannot be forged. To

establish the requisite recognition, the Supreme Court would have

had to either formally acknowledge or treat as valid the right

asserted by Shea. United States v. Green, 898 F.3d 315, 318 (3rd

Cir. 2018). It has done neither.

Johnson is surely a new right recognized by the Supreme

Court because it required overruling several prior Supreme Court

decisions upholding and applying the residual clause of the Armed

Career Criminal Act (ACCA). See Welch, 136 S. Ct. at 1264 ("It is

undisputed that Johnson announced a new rule."). This is only

half of the battle, and the remaining question is whether the due

process principles enunciated in Johnson perforce invalidate the

residual clause of the career offender provision of the pre-Booker

sentencing guidelines. If reasonable jurists can disagree about

whether the rule stated in Johnson demands a finding that the - 44 - pre-Booker residual clause of the career offender guideline is

unconstitutional, it necessarily follows that the new right upon

which Shea relies was not announced in Johnson and has not yet

been recognized by the Supreme Court. See Chaidez v. United

States, 568 U.S. 342, 347 (2013) ("'[A] case announces a new rule

if the result was not dictated by precedent' . . . [a]nd a holding

is not so dictated . . . unless it would have been 'apparent to

all reasonable jurists.'" (quoting Lambrix v. Singletary, 520 U.S.

518, 527–28 (1997))).

In my view, neither Johnson nor its progeny

unequivocally answer this question. The Johnson Court overruled

earlier decisions and held that the ACCA's residual clause was

unconstitutional under due process principles. Johnson, 576 U.S.

at 596-98. Later on, the Court determined that Johnson applied

retroactively to cases on collateral review. See Welch, 136 S. Ct.

at 1257. Even so, the Court subsequently upheld — as against a

Johnson-inspired attack — a due process challenge to the residual

clause of the career offender provision of the post-Booker

sentencing guidelines. See Beckles v. United States, 137 S. Ct.

886 (2017). In reaching this result, the Court distinguished

Johnson on the ground that the sentencing guidelines, made advisory

by the Booker decision, did not "fix the permissible sentences for

criminal offenses" because those guidelines merely informed the

district court's exercise of sentencing discretion. Id. at 892 - 45 - (emphasis omitted). As the Fifth Circuit aptly noted, "the Court's

decisions up until this point evince a distinction between statutes

that fix sentences and Guidelines that attempt to constrain the

discretion of sentencing judges." United States v. London, 937

F.3d 502, 507 (5th Cir. 2019).

To be sure, the pre-Booker guidelines were thought to be

mandatory, not advisory. See Booker, 543 U.S. at 234. Those

guidelines cabined the range, within the statutory sentencing

framework, in which the district court had to sentence the

defendant; subject, however, to a modicum of flexibility based on

the sentencing court's authority to depart. See id.

The short of it is that Johnson established a rule that

due process principles apply to laws that fix sentences — a rule

that the Supreme Court later made retroactive. For present

purposes, though, a chasmal gap exists: there is no subsequent

decision of the Court answering the question of whether the rule

in Johnson extends to a guideline provision that does not have the

effect of fixing a sentence by altering the statutory penalties.

My colleagues do not succeed in bridging this gap, and I conclude

that unless and until the Supreme Court answers the dispositive

question favorably to him, Shea does not have a new right

recognized by the Supreme Court sufficient to bear the weight of

his petition.

- 46 - This conclusion is hardly original, and I see no need to

repastinate soil already well-plowed. All but one of the courts

of appeals to have addressed this question have determined that

Johnson does not constitute the newly recognized right that Shea

needs to show. Nunez v. United States, 954 F.3d 465, 469 (2d Cir.

2020); London, 937 F.3d at 508; United States v. Blackstone, 903

F.3d 1020, 1028 (9th Cir. 2018); Russo v. United States, 902 F.3d

880, 883 (8th Cir. 2018); Green, 898 F.3d at 321; United States v.

Greer, 881 F.3d 1241, 1248-49 (10th Cir. 2018); United States v.

Brown, 868 F.3d 297, 304 (4th Cir. 2017); Raybon v. United States,

867 F.3d 625, 630-31 (6th Cir. 2017). But see Cross v. United

States, 892 F.3d 288, 307 (7th Cir. 2018). These decisions

thoughtfully address my colleagues' contentions both that the

right recognized in Johnson extends beyond the ACCA and that the

pre-Booker guidelines "fixed" sentences in violation of Johnson.

See, e.g., London, 937 F.3d at 507 ("The pre-Booker Guidelines

. . . only directed the discretion of the district judge within

the statutory range . . . ."); Russo, 902 F.3d at 883 ("It is

reasonably debatable whether Johnson's holding regarding the ACCA

extends to the former mandatory guidelines."). I am of the opinion

that, although the Court may in the future find the pre-Booker

residual clause of the career offender guideline

unconstitutionally vague, Johnson does not dictate such a result.

Nunez, 954 F.3d at 470 (concluding that challenges to identical - 47 - residual clauses in other contexts were not "necessarily

straightforward" and "further undermine [the] contention that

Johnson in and of itself dictates the result of a vagueness

challenge to the residual clause in the pre-Booker" guidelines);

Blackstone, 903 F.3d at 1026 ("[Beckles] may permit an inference

that the Court might reach a different result regarding a sentence

imposed while the Guidelines were mandatory, . . . but that

inference has not been recognized by the Court.")

To my mind, the proof of the pudding is in the case law.

While precedents from other circuits are not binding upon us, the

reasoned decisions of a large number of our sister circuits are,

at the very least, entitled to respectful consideration. And

where, as here, those decisions constitute a wide majority, rest

on persuasive analysis, and tilt heavily in a uniformed direction,

it blinks reality to suggest that jurists of reason could not

decide the contested issue in that way.

I need go no further. The right that Shea is asserting

is not a right that flows automatically from Johnson. Indeed,

that right is not dictated by Johnson and has not yet been

explicitly recognized by the Supreme Court. That so many judges

have rejected Johnson's applicability to pre-Booker guidelines

sounds the death knell for Shea's appeal. See Russo, 902 F.3d at

883; Greer, 898 F.3d at 1245. Given the tenebrous state of the

law with respect to how (if at all) Johnson affects the career - 48 - offender provision of the pre-Booker sentencing guidelines, I

would hold that Shea has not cleared the high bar set by section

2255(f)(3). Consequently, I would affirm the district court's

dismissal of Shea's petition with respect to the guidelines issue.

I respectfully dissent as to that issue.14

14 Inasmuch as the parties are in agreement as to the disposition of the unrelated issue involving 18 U.S.C. § 924(c), I need take no position as to that issue. - 49 -