Tracy Topaz Turner v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 28, 2023
• Docket: 22-12173
• Status: Unpublished

Opinion

USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-12173 Non-Argument Calendar ____________________

TRACY TOPAZ TURNER, 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. 0:16-cv-61155-MGC ____________________ USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 2 of 9

2 Opinion of the Court 22-12173

Before BRANCH, ANDERSON, and EDMONDSON, Circuit Judges. PER CURIAM: Tracy Turner, a federal prisoner 1 proceeding through ap- pointed counsel, appeals the district court’s denial of his authorized second or successive 28 U.S.C. § 2255 motion. No reversible error has been shown; we affirm. I. In 1995, Turner was convicted by a jury of conspiracy to possess with intent to distribute crack cocaine and of two counts of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841 and 846. Applying the then-mandatory 1994 Sentencing Guidelines, the district court determined -- based on Turner’s prior convictions for a “crime of violence”2 (armed robbery) and a controlled-sub- stance offense -- that Turner qualified as a career offender under

1 In September 2019 -- while the instant section 2255 motion was pending in

the district court -- the district court granted Turner’s motion for a reduced sentence under section 404 of the First Step Act of 2018. The district court reduced Turner’s sentence to credit for time served and six years’ supervised release. Turner is now serving his term of supervised release. 2 At the time of Turner’s sentencing, the sentencing guidelines defined “crime

of violence” -- for purposes of the career-offender enhancement -- to include a felony offense that “involves conduct that presents a serious potential risk of physical injury to another.” See U.S.S.G. § 4B1.2(a) (1994). USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 3 of 9

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U.S.S.G. § 4B1.1. Turner’s guideline range was calculated as be- tween 360 months and life imprisonment. The district court sen- tenced Turner to 360 months’ imprisonment on each count, to be served concurrently, followed by 10 years of supervised release. Turner’s convictions and sentence were affirmed on direct appeal. Turner’s conviction became final when the Supreme Court denied certiorari in October 1998. Turner filed his first section 2255 motion in 1999, which the district court denied on the merits. In 2015, the Supreme Court struck down as unconstitution- ally vague the residual clause in the Armed Career Criminal Act’s (“ACCA”) definition of “violent felony.” 3 See Johnson v. United States, 576 U.S. 591, 597-602 (2015). The Supreme Court later concluded that Johnson applied retroactively to cases on collateral review. See Welch v. United States, 578 U.S. 120, 135 (2016). In 2016, Turner filed pro se the section 2255 motion at issue in this appeal: his fourth section 2255 motion. Turner argued -- in the light of the Supreme Court’s decision in Johnson -- that his Flor- ida conviction for armed robbery no longer qualified as a valid predicate offense for purposes of the career-offender sentencing enhancement in U.S.S.G. § 4B1.1. A panel of this Court granted Turner leave to file a second or successive section 2255 motion challenging -- pursuant to

3 The ACCA’s residual clause defines “violent felony” to include a felony of-

fense that “involves conduct that presents a serious potential risk of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B). USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 4 of 9

4 Opinion of the Court 22-12173

Johnson -- his career-offender sentence under the then-mandatory guidelines. The district court appointed counsel for Turner and stayed the proceedings pending a decision from the Supreme Court in Beckles v. United States, 580 U.S. 256 (2017). In Beckles, the Supreme Court concluded that the advisory sentencing guidelines are not subject to a void-for-vagueness chal- lenge under the Due Process Clause. See Beckles, 580 U.S. at 263. The Supreme Court thus rejected the argument that the residual clause of the career-offender guideline’s definition of “crime of vi- olence” -- as set forth in section 4B1.2(a) -- was void for vagueness. See id. Following the issuance of Beckles and supplemental briefing by the parties in this case, a magistrate judge issued a report and recommendation (“R&R”). The magistrate judge recommended that Turner’s section 2255 motion be denied on the merits. The magistrate judge concluded that Turner’s claim, challenging his mandatory career-offender sentence, was foreclosed by our deci- sion in In re Griffin, 823 F.3d 1350 (11th Cir. 2016). In making that ruling, the magistrate judge rejected Turner’s arguments (1) that Griffin had been abrogated by Beckles and (2) that Griffin was inap- plicable because it was decided in the context of an application for leave to file a second or successive section 2255 motion. Turner objected to the R&R. The district court overruled Turner’s objections and adopted the R&R. The district court USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 5 of 9

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denied Turner’s motion on the merits, concluding that Turner’s ca- reer-offender sentence was unaffected by Johnson. 4 The district court, however, granted Turner a certificate of appealability on these issues: (1) “whether sentences imposed un- der the then mandatory pre-Booker sentencing guidelines are sub- ject to a vagueness challenge;”5 and (2) “the precedential weight of published opinions in the context of applications for second or suc- cessive motions to vacate.” II. When reviewing the denial of a section 2255 motion to va- cate, “we review legal conclusions de novo and findings of fact for clear error.” See Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). A. The district court concluded properly -- based on our deci- sion in Griffin -- that Turner’s mandatory career-offender sentence is not subject to a void-for-vagueness challenge under Johnson.

4 In the alternative, the district court dismissed Turner’s section 2255 motion

as untimely because -- although Turner filed his section 2255 motion within one year of the Johnson decision -- Turner’s argument did not qualify as a John- son claim. Because we conclude that Turner’s section 2255 motion fails on the merits, we need not address the district court’s alternative ruling about time- liness. 5United States v. Booker, 543 U.S. 200 (2005). USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 6 of 9

6 Opinion of the Court 22-12173

In Griffin, we rejected the same argument now raised by Turner: that Johnson invalidated the residual clause of the “crime of violence” definition in the then-mandatory career-offender sen- tencing guidelines. See Griffin, 823 F.3d at 1352-53, 1356. We con- cluded that “[t]he Guidelines -- whether mandatory or advisory -- cannot be unconstitutionally vague because they do not establish the illegality of any conduct and are designed to assist and limit the discretion of the sentencing judge.” Id. at 1354. On appeal, Turner acknowledges that Griffin is contrary to his argument challenging his mandatory career-offender sentence. Turner contends, however, that Griffin has since been undermined to the point of abrogation by the Supreme Court’s decisions in Beckles and in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). We disa- gree. Under our prior-panel-precedent rule, we are bound by a prior panel’s holding “unless and until it is overruled or under- mined to the point of abrogation by the Supreme Court or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). “To conclude that we are not bound by a prior holding in light of a Supreme Court case, we must find that the case is ‘clearly on point’ and that it ‘actually abrogates or directly conflicts with, as opposed to merely weakens, the holding of the prior panel.” United States v. Dudley, 5 F.4th 1249, 1265 (11th Cir. 2021) (brackets omitted). In Beckles, the Supreme Court concluded that the advisory sentencing guidelines were not subject to a void-for-vagueness USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 7 of 9

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challenge. See Beckles, 580 U.S. at 263. Although Beckles touched on the distinction between mandatory and advisory guidelines, Beckles neither decided nor addressed squarely whether the vagueness doc- trine applies to the pre-Booker mandatory guidelines. For back- ground, see id. at 281 n.4 (Sotomayor, J., concurring) (noting that the Court “le[ft] open the question whether defendants sentenced to terms of imprisonment before . . . Booker . . . may mount vague- ness attacks on their sentences”). Given that Beckles took “no posi- tion” on whether the mandatory guidelines may be subject to a vagueness challenge, see id., we cannot conclude that Griffin has been undermined to the point of abrogation by Beckles. Nor has Griffin been abrogated by the Supreme Court’s de- cision in Dimaya. In Dimaya, the Supreme Court applied Johnson to conclude that the residual clause of the “crime of violence” defini- tion in a different criminal statute -- 18 U.S.C. § 16(b) -- was uncon- stitutionally vague. See 138 S. Ct. at 1210, 1216, 1223. Dimaya in- volved no vagueness challenge to the sentencing guidelines, man- datory or advisory. Neither Beckles nor Dimaya is “clearly on point” or “directly conflicts with” our ruling in Griffin that the mandatory sentencing guidelines are not subject to a void-for-vagueness challenge. Griffin thus remains binding precedent. 6

6 We also reject Turner’s argument that Griffin was wrong when it was de-

cided. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e cat- egorically reject any exception to the prior panel precedent rule based upon a USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 8 of 9

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B. Turner next contends that the district court violated his due process rights by treating Griffin -- a decision issued in a successive- application context -- as binding precedent in the context of his sec- tion 2255 proceeding. Turner acknowledges that his argument is foreclosed by our prior precedent. We have already determined that published three- judge orders issued in the context of an application for leave to file a second or successive section 2255 motion constitute binding prec- edent. See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018), abrogated on other grounds by United States v. Davis, 132 S. Ct. 2319 (2019), and United States v. Taylor, 142 S. Ct. 2015 (2022) (con- cluding that decisions published “in the context of applications for leave to file second or successive § 2255 motions [are] binding prec- edent on all subsequent panels of this Court, including those re- viewing direct appeals and collateral attacks” (emphasis in origi- nal)); In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (“[O]ur prior- panel-precedent rule applies with equal force as to prior panel de- cisions published in the context of applications to file second or successive petitions. In other words, published three-judge orders issued under [28 U.S.C.] § 2244(b) are binding precedent in our cir- cuit.”).

perceived defect in the prior panel’s reasoning or analysis as it relates to the law in existence at that time.”). USCA11 Case: 22-12173 Document: 29-1 Date Filed: 08/28/2023 Page: 9 of 9

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Neither the Supreme Court nor this Court sitting en banc has overruled or abrogated our rulings about the precedential value of published decisions issued in the successive-application context. Under our prior-panel-precedent rule, we are bound by our deci- sions in St. Hubert and Lambrix. In sum, Griffin remains binding precedent applicable to the section 2255 proceedings in this case. Because Griffin forecloses squarely Turner’s claim challenging his mandatory career-offender sentence, the district court concluded properly that Turner’s claim failed on the merits. AFFIRMED.