Luis Fernandez v. United States

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12915

____________________

LUIS FERNANDEZ,

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. 1:20-cv-23034-CMA

____________________

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2 Opinion of the Court 21-12915

Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges.

ROSENBAUM, Circuit Judge:

Federal law imposes criminal liability—and a five-year man-

datory prison sentence consecutive to any other sentence—for pos-

session of a firearm in furtherance of a crime of violence. See 18

U.S.C. § 924(c). To be validly convicted under § 924(c), a defendant

must, as relevant here, commit a “crime of violence.”

Petitioner-Appellant Luis Fernandez seeks relief from his §

924(c) conviction on the ground that he did not commit a valid

predicate “crime of violence.” If Fernandez were convicted under

§ 924(c) based on the same predicate “crime[s] of violence”—con-

spiracy to commit and attempted Hobbs Act robbery—today, he

would be correct. But our precedent effectively requires Fernandez

to prove that his § 924(c) conviction rested solely on § 924(c)’s re-

sidual clause, whether by pointing to record evidence or contem-

poraneous precedent from when the conviction was entered. He

can’t carry that burden. So after careful consideration, and with

the benefit of oral argument, we must affirm the district court’s

denial of habeas relief.

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21-12915 Opinion of the Court 3

I. BACKGROUND

A. Criminal Prosecution

In August 2007, Fernandez and several others conspired to

rob a (fictional) cocaine stash house. Police had enlisted a confi-

dential informant and undercover officer to assist with the scenario.

The co-conspirators waited for a call from a person they believed

was a drug courier transporting twenty to thirty kilograms of co-

caine to a stash house. In fact, though, an undercover officer was

playing the part of that drug courier whose call they awaited. Once

the conspirators received that call, they (including Fernandez) left

for the (fictional) stash house and put firearms they intended to use

during the robbery in the informant’s car. When the officers ar-

rested the conspirators on the way to their destination, they found

a black duffel bag containing five loaded firearms.

A grand jury indicted Fernandez, along with several co-de-

fendants, on charges of conspiracy to possess with intent to distrib-

ute five kilograms or more of cocaine, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A)(ii), and 846 (Count 3); attempt to possess with

intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846, and 18 U.S.C. § 2

(Count 4); conspiracy to commit Hobbs Act robbery, in violation

of 18 U.S.C. § 1951(a) (Count 5); attempt to commit Hobbs Act

robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Count 6); and

carrying and possessing a firearm in furtherance of a crime of vio-

lence and a drug-trafficking crime, in violation of 18 U.S.C. §§

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4 Opinion of the Court 21-12915

924(c)(1)(A) and 2 (Count 7). The indictment 1 premised the §

924(c) charge in Count 7 on the charges in Counts 3 through 6.

After the close of the evidence, the district court instructed

the jury that, to convict Fernandez of the § 924(c) offense, it had to

find that he “committed a drug trafficking offense or crime of vio-

lence charged in Counts [3, 4, 5, or 6] of the Superseding Indict-

ment.” The jury found Fernandez guilty of the § 924(c) count. But

the general verdict form it returned did not specify the predicate

offense or other findings supporting the § 924(c) conviction. Ra-

ther, the form simply declared Fernandez guilty of Counts 5

(Hobbs Act conspiracy), 6 (Hobbs Act attempt), and 7 (§ 924(c)

charge) and not guilty of Counts 3 and 4.

The district court sentenced Fernandez to a total term of

360 months’ incarceration: 60 months on Counts 5 and 6, and 300

months on Count 7, to run consecutively.

Fernandez filed an unsuccessful direct appeal. United States

v. Perez, 661 F.3d 568, 587 (11th Cir. 2011) (consolidated appeal with

co-defendants). In that appeal, Fernandez challenged the suffi-

ciency of the evidence and raised a Sixth Amendment compulsory-

process claim but did not challenge his § 924(c) predicates. Id. at

573, 579.

1 The operative charging document was a superseding indictment. For ease

of reference, we refer to it as the “indictment.”

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B. Postconviction Proceedings

In 2016, Fernandez moved to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. In that motion, Fernandez chal-

lenged his § 924(c) conviction based on Johnson v. United States, 576

U.S. 591 (2015). He claimed that his conviction could have rested

on § 924(c)’s residual clause, which he argued was unconstitution-

ally void for vagueness. 2 But Johnson, the case on which he relied,

invalidated the residual clause of the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), not § 924(c). So the district court con-

cluded that Johnson did not “newly recognize[]” the “right asserted”

in Fernandez’s petition, and Fernandez could not use that case to

overcome the one-year filing bar for § 2255 motions.3 It therefore

denied Fernandez’s motion as untimely, or alternatively, as proce-

durally defaulted. We denied a certificate of appealability (“COA”).

In June 2020, Fernandez sought authorization to file a sec-

ond or successive § 2255 motion. He wanted to challenge his §

924(c) conviction as unconstitutional and void under United States

v. Davis, 588 U.S. 445 (2019). As we’ve noted, Davis invalidated §

2 We explain § 924(c)’s statutory scheme, including the residual clause, on

pages 7–11, infra.

3 The district court relied on our then-binding decision in Ovalles v. United

States, 861 F.3d 1257, 1267 (11th Cir. 2017). We vacated Ovalles, 889 F.3d 1259

(11th Cir. 2018), and reheard it en banc, holding that § 924(c)’s residual clause

was not void for vagueness, Ovalles v. United States, 905 F.3d 1231, 1253 (11th

Cir. 2018) (en banc). The Supreme Court held the opposite in United States v.

Davis, 588 U.S. 445, 470 (2019), abrogating our en banc Ovalles decision.

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6 Opinion of the Court 21-12915

924(c)’s residual clause, id. at 470, and Fernandez claimed that his §

924(c) conviction could have rested on that void clause. We

granted Fernandez’s motion. We acknowledged that under our

then-recent decision in Brown v. United States, 942 F.3d 1069 (11th

Cir. 2019), “conspiracy to commit Hobbs Act robbery . . . does not

qualify as a crime of violence under § 924(c)(3)’s elements clause.”

And we noted that the indictment “referenced multiple, distinct

predicate offenses and the jury returned a general guilty verdict,”

so we couldn’t be sure whether the predicate offense that the jury

found warranted the § 924(c) conviction qualified as a crime of vi-

olence. Given those circumstances, we said, Fernandez “made a

prima facie showing that his . . . § 924(c) conviction may be uncon-

stitutional under Davis, as he potentially was sentenced under the

now-invalid residual clause of § 924(c)(3).”

Fernandez filed a second or successive § 2255 motion, con-

tending that his § 924(c) conviction was unconstitutional because it

may have been supported by a void predicate offense (conspiracy

to commit Hobbs Act robbery). On June 29, 2021, the district court

denied Fernandez’s motion, finding that the conspiracy offense was

inextricably intertwined with the attempt offense, which it believed

to be a valid predicate. 4

4 Alternatively, the district court found that Fernandez’s claim was procedur-

ally defaulted. But the government waived the procedural-default issue on

appeal, so we do not discuss that issue further. See, e.g., United States v. Camp-

bell, 26 F.4th 860, 872 (11th Cir.) (en banc) (holding that courts generally can-

not revive waived issues), cert. denied, 143 S. Ct. 95 (2022).

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21-12915 Opinion of the Court 7

Fernandez moved for reconsideration after the Supreme

Court granted certiorari in United States v. Taylor, 141 S. Ct. 2882

(2021). As we detail below, Taylor presented the question of

whether attempted Hobbs Act robbery is a valid predicate “crime

of violence” under § 924(c)’s elements clause. The district court

granted Fernandez’s motion and issued a COA on the following

question: “whether the Court erred in determining that attempted

Hobbs Act robbery is a valid section 924(c) predicate.” Fernandez

timely appealed.

We stayed Fernandez’s appeal pending the Supreme Court’s

decision in United States v. Taylor, 596 U.S. 845 (2022). We now con-

sider Fernandez’s appeal with the benefit of that decision.

II. STANDARDS OF REVIEW

In an appeal from a denial of a § 2255 motion, we review

questions of law de novo and factual findings for clear error. Steiner

v. United States, 940 F.3d 1282, 1288 (11th Cir. 2019). We review is-

sues of jurisdiction de novo. United States v. Iguaran, 821 F.3d 1335,

1336 (11th Cir. 2016).

III. DISCUSSION

Before we address Fernandez’s claims on appeal, we summa-

rize the relevant legal background.

Under 18 U.S.C. § 924(c)(1)(A), “any person who, during and

in relation to any crime of violence or drug trafficking crime . . .

uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm, shall, in addition to the punishment provided

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8 Opinion of the Court 21-12915

for such crime of violence or drug trafficking crime . . . be sen-

tenced to a term of imprisonment of not less than 5 years.”

The statute defines “crime of violence” as follows:

an offense that is a felony and –

(A) has as an element the use, attempted use, or threatened

use of physical force against the person or property of an-

other, 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). In Davis, the Supreme Court held subsection

(B), the “residual clause,” to be unconstitutionally void for vague-

ness. 5 588 U.S. at 470. In doing so, the Court explained that broad

application of the residual clause “would result in the vast majority

of federal felonies becoming potential predicates for § 924(c)

charges, contrary to the limitation Congress deliberately imposed

when it restricted the statute’s application to crimes of violence.”

Id. at 462. To qualify as a crime of violence, then, an offense must

meet the definition in the “elements clause,” 18 U.S.C. §

924(c)(3)(A).

5 Davis followed the Court’s previous decisions in Johnson, 576 U.S. at 606,

which, as we’ve noted, held the ACCA’s residual clause to be unconstitution-

ally void for vagueness, and Sessions v. Dimaya, 584 U.S. 148, 174–75 (2018),

which did the same for 18 U.S.C. § 16.

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Here, for purposes of our analysis, we assume without de-

ciding that Fernandez’s predicate was a “crime of violence”—

namely, either conspiracy to commit Hobbs Act robbery or at-

tempted Hobbs Act robbery. 6 But precedent holds that neither of

6 For two reasons, we assume without deciding that, on this record, Fernan-

dez’s drug-trafficking offenses are not valid predicates. First, it makes no dif-

ference to the outcome of this appeal. And second, determining whether Fer-

nandez’s drug-trafficking offenses are valid predicates here would require us

to decide an issue that the government didn’t argue, that the parties didn’t

brief, and that isn’t necessarily clearcut. The jury acquitted Fernandez on both

substantive drug-trafficking counts and convicted him on the Hobbs Act con-

spiracy and attempt offenses. Yet the indictment charged all four of these of-

fenses—the two drug-trafficking offenses and the Hobbs Act conspiracy and

attempt offenses—as alternative predicate offenses for a single § 924(c) count.

So we have no way of knowing which predicate offense(s) the jury found Fer-

nandez to have carried a gun in connection with. And it certainly could be

that the jury convicted Fernandez of the § 924(c) count based solely on one or

both Hobbs Act “predicates.” We are, of course, aware that a jury may issue

inconsistent verdicts that convict a defendant of a compound offense but ac-

quit the same defendant of a predicate offense. See, e.g., United States v. Green,

981 F.3d 945, 960–61 (11th Cir. 2020) (quoting United States v. Powell, 469 U.S.

57, 68–69 (1984)); United States v. Hill, 971 F.2d 1461, 1468–69 (10th Cir. 1992).

But in those cases where we’ve upheld inconsistent verdicts, we had no ques-

tion that the jury returned an inconsistent verdict. Here, though, the jury re-

turned what appeared at the time to be consistent verdicts: it acquitted Fer-

nandez of the drug-trafficking offenses but convicted Fernandez under § 924(c)

and the Hobbs Act predicates. So unlike in the inconsistent-verdict cases, con-

cluding that the jury convicted Fernandez on the § 924(c) count using the drug-

trafficking crime(s) as a predicate may risk upholding a conviction that no jury

returned. And that would be a problem. Cf. Erlinger v. United States, 144 S. Ct.

1840, 1849–52 (2024). Not only that, but to the extent the jury appeared to

return consistent verdicts, “the Double Jeopardy Clause precludes the Gov-

ernment from relitigating any issue that was necessarily decided by [the] jury’s

acquittal.” Yeager v. United States, 557 U.S. 110, 119 (2009). So we have no way

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10 Opinion of the Court 21-12915

those crimes qualifies as a “crime of violence” under the elements

clause.

First, in Brown v. United States, 942 F.3d 1069, 1075 (11th Cir.

2019) (per curiam), we held that conspiracy to commit Hobbs Act

robbery is not a “crime of violence” under the elements clause. We

articulated the three elements of a Hobbs Act conspiracy convic-

tion: “(1) two or more people, including the defendant, agreed to

commit Hobbs Act robbery; (2) the defendant knew of the conspir-

atorial goal; and (3) the defendant voluntarily participated in fur-

thering that goal.” Id. (citing United States v. Ransfer, 749 F.3d 914,

930 (11th Cir. 2014)). And we found that none of these elements

“necessitates the existence of a threat or attempt to use force,” in-

cluding “because a defendant’s voluntary participation may mani-

fest itself in any one of countless non-violent ways.” Id.

Then, in Taylor, the Supreme Court held that attempted

Hobbs Act robbery is also not a “crime of violence” under the ele-

ments clause. 596 U.S. at 852. The Court reasoned that a convic-

tion for attempted Hobbs Act robbery requires proof of two ele-

ments: “(1) [t]he defendant intended to unlawfully take or obtain

personal property by means of actual or threatened force, and (2)

he completed a ‘substantial step’ toward that end.” Id. at 851 (citing

United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007)). An inten-

tion alone does not satisfy the elements clause. Id. And a substan-

tial step “does not require the government to prove that the

of knowing which predicate offense(s) the jury found Fernandez to have car-

ried a gun in connection with.

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21-12915 Opinion of the Court 11

defendant used, attempted to use, or even threatened to use

force[.]” Id. So attempted Hobbs Act robbery cannot qualify as a

predicate “crime of violence” under § 924(c)’s elements clause. See

id. at 852.

Taken together, Davis forecloses Fernandez’s § 924(c) crime-

of-violence predicates from qualifying under the residual clause,

and Brown and Taylor foreclose those predicates, respectively, from

qualifying under the elements clause. But as we explain below, our

precedent imposes an additional hurdle that Fernandez cannot

clear: the framework we first articulated in Beeman v. United States,

871 F.3d 1215 (11th Cir. 2017).

Our discussion proceeds in two parts. First, we address Fer-

nandez’s jurisdictional arguments and conclude that the district

court did not lack jurisdiction over Fernandez’s § 924(c) prosecu-

tion. Second, we explain that Fernandez cannot meet his burden

under Beeman of proving that his § 924(c) conviction relied solely

on the residual clause, so we must affirm the district court’s denial

of his petition.

A. The district court did not lack jurisdiction over Fernan-

dez’s § 924(c) prosecution.

As a threshold matter, Fernandez argues that the district

court lacked jurisdiction over his § 924(c) prosecution because the

charged conduct did not and could not constitute a crime. We dis-

agree and hold that the district court in this case did not lack juris-

diction.

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An indictment that “charges the defendant with violating a

valid federal statute as enacted in the United States Code” is suffi-

cient to invoke the district court’s subject-matter jurisdiction under

18 U.S.C. § 3231. United States v. Brown, 752 F.3d 1344, 1354 (11th

Cir. 2014). But “when the indictment itself fails to charge a crime,

the district court lacks jurisdiction.” United States v. Moore, 954 F.3d

1322, 1334 (11th Cir. 2020). And a jurisdictional defect “strips the

court of its power to act and makes its judgment void.” McCoy v.

United States, 266 F.3d 1245, 1249 (11th Cir. 2001) (cleaned up).

To support his jurisdictional argument, Fernandez relies

principally on our decision in United States v. St. Hubert, 909 F.3d

335, 351 (11th Cir. 2018). There, we (incorrectly) held that at-

tempted Hobbs Act robbery was a valid § 924(c) predicate. Id. Dur-

ing our discussion, we said that a defendant’s “challenge to his §

924(c) convictions on [the] ground” that they “failed to charge an

offense against the laws of the United States” is jurisdictional and

cannot be waived by the defendant’s guilty plea. Id. at 344. In turn,

we cited United States v. Peter, 310 F.3d 709, 714 (11th Cir. 2002), in

which the defendant’s Racketeer Influenced and Corrupt Organi-

zations (“RICO”) Act “indictment consisted only of specific con-

duct that, as a matter of law, was outside the sweep of the charging

statute.” In other words, the indictment charged an invalid predi-

cate, and we held that error to be jurisdictional. See id. 7

7 Both St. Hubert and Peter, as well as the Supreme Court’s related decision in

Class v. United States, 583 U.S. 174 (2018), concerned whether the defendants

had waived their jurisdictional challenges by pleading guilty. So they do not

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Of course, Taylor abrogated our core holding in St. Hubert.

But Fernandez argues that Taylor did not abrogate our finding that

the viability of the predicate there was a jurisdictional matter. We

assume without deciding that Fernandez is correct and accept for

the sake of argument that an indictment that fails to charge any

valid § 924(c) predicate would not confer jurisdiction over the §

924(c) offense.

But that doesn’t help Fernandez. To be sure, Fernandez was

not convicted of any valid § 924(c) predicates. But the indictment

still charged him with other valid predicates: conspiracy to possess

with intent to distribute cocaine and attempt to possess with intent

to distribute cocaine. See Parker v. United States, 993 F.3d 1257, 1262–

63 (11th Cir. 2021). And the district court’s jurisdiction did not

evaporate upon Fernandez’s acquittal of the drug-related charges.

If it did, courts would lack jurisdiction over any prosecution in

which a jury acquitted the defendant of the charges. That, of

course, is not the case.

Fernandez also invokes the Supreme Court’s pronounce-

ment that “Congress has not authorized courts to convict and sen-

tence [defendants] to a decade of further imprisonment under §

924(c)(3)(A)” based on the predicate offense of attempted Hobbs

Act robbery. Taylor, 596 U.S. at 852. But again, that Congress “has

not authorized” a § 924(c) conviction based on attempted Hobbs Act

perfectly map onto the circumstances of this case. That said, without deciding

the merits of Fernandez’s position, we adopt his broad reading of those deci-

sions for the sake of argument.

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14 Opinion of the Court 21-12915

robbery does not mean that Congress has deprived the federal

courts of jurisdiction to adjudicate § 924(c) charges based at least in

part on other valid predicates. So we reject Fernandez’s jurisdic-

tional arguments.

B. Fernandez has not met his burden of proving that his §

924(c) conviction rested solely on the residual clause.

We now consider whether Fernandez’s § 924(c) conviction

rested solely on the residual clause.

Our analysis proceeds in three parts. First, we briefly review

the legal and procedural posture of Fernandez’s claim. Second, we

explain that the Beeman framework governs Fernandez’s challenge

to his § 924(c) conviction. And third, we apply the Beeman frame-

work to Fernandez’s Davis claim and find that Fernandez has failed

to meet his burden.

1. Fernandez’s motion is before us on a Davis claim.

We begin with a review of the legal and procedural posture

of Fernandez’s petition. As relevant here, § 2255(h)(2) requires that

“[a] second or successive motion must be certified . . . by a panel of

the appropriate court of appeals to contain . . . a new rule of con-

stitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” 28 U.S.C. §

2255(h)(2). In contrast, § 2255(h) does not authorize circuit courts

to certify a claim relying on a new rule of statutory law. In re Griffin,

823 F.3d 1350, 1356 (11th Cir. 2016). So as relevant here, only claims

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that contain a new rule of constitutional law satisfy § 2255’s gate-

keeping requirements.

Under § 2255(h)(2), a three-judge panel of this Court certi-

fied that Fernandez’s § 2255 motion made a preliminary showing

that he met § 2255(h)’s jurisdictional requirements. Specifically, the

panel certified that Fernandez’s motion implicated Davis’s new con-

stitutional rule because Fernandez “made a prima facie showing

that . . . he potentially was sentenced under the now-invalid resid-

ual clause of § 924(c)(3).”

In contrast, Fernandez’s Taylor and Brown arguments are

statutory—not constitutional. So they could not serve as a basis for

Fernandez’s second or successive motion to pass through §

2255(h)(2)’s gateway and on to merits consideration.8 That’s im-

portant because, as we explain later, it means that Fernandez’s Tay-

lor and Brown claims are “irrelevant” under the Beeman framework

when we analyze Fernandez’s Davis claim. See Santos v. United

States, 982 F.3d 1303, 1310 (11th Cir. 2020).

2. Beeman’s framework governs challenges to §

924(c) convictions.

We turn next to the legal framework that governs the merits

of Fernandez’s second or successive § 2255 motion. In Beeman, we

8 As we’ve noted, the § 2255(h)(2) gateway does not authorize circuit courts

to certify a second or successive motion based on a new rule of statutory law.

We also could not certify a § 2255 claim based on Brown because we, not the

Supreme Court, announced it. See 28 U.S.C. § 2255(h)(2).

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held that a § 2255 petitioner bears the burden to “show that—more

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

tencing court’s enhancement of his sentence.” 871 F.3d at 1222. 9

There, the petitioner challenged his sentencing enhancement un-

der the ACCA, which imposes a fifteen-year mandatory minimum

when a defendant “has three previous convictions . . . for a violent

felony or a serious drug offense.” See 18 U.S.C. § 924(e). Beeman

argued that his prior Georgia aggravated-assault conviction was

not a “violent felony,” so it could not support an ACCA enhance-

ment. See Beeman, 871 F.3d at 1218. But we denied § 2255 relief

because it was “unclear from the record whether the sentencing

court had relied on the residual clause or the elements clause, or

both” in enhancing Beeman’s sentence. Id. at 1224–25.

In doing so, we held that a § 2255 petitioner is not entitled to

relief “[i]f it is just as likely that the sentencing court relied on the

elements . . . clause, solely or as an alternative basis for the enhance-

ment.” Id. at 1222. In other words, a petitioner cannot succeed if

all he can show is that the district court could have relied on the

residual clause. See id. Rather, the petitioner must show that the

district court relied on the residual clause either as a matter of “his-

torical fact,” through evidence in the sentencing record, or by ref-

erence to “clear” law “at the time of sentencing.” Id. at 1224 nn.4–

9 As a reminder, the Supreme Court held the ACCA’s residual clause, which

has similar language to § 924(c)’s residual clause, to be unconstitutionally void

for vagueness in Johnson, 576 U.S. at 606. See supra n.5.

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5. We said that this burden-of-proof framework “reflects

longstanding and fundamental interests in finality.” Id. at 1223.

We have repeatedly applied Beeman to Johnson challenges to

ACCA enhancements. See, e.g., United States v. Pickett, 916 F.3d 960,

963–64 (11th Cir. 2019); Tribue v. United States, 929 F.3d 1326, 1331

(11th Cir. 2019); Weeks v. United States, 930 F.3d 1263, 1271–72 (11th

Cir. 2019); Santos, 982 F.3d at 1310 (characterizing Beeman as a

“threshold burden” in a § 2255 challenge based on both the residual

and elements clauses); Williams v. United States, 985 F.3d 813, 816

(11th Cir. 2021); Pitts v. United States, 4 F.4th 1109, 1114–15 (11th Cir.

2021). So at least in the ACCA context, our precedent is clear: the

district court must have relied “solely on the residual clause” for a

petitioner to obtain § 2255 relief. See Beeman, 871 F.3d at 1221.

But Fernandez asserts that Beeman doesn’t apply in the §

924(c) context because material differences exist between the

ACCA and § 924(c). He notes the ACCA is a sentencing enhance-

ment, while § 924(c) is a substantive criminal offense. To that end,

he points out that the ACCA contemplates a “backward-looking

question,” McNeill v. United States, 563 U.S. 816, 820 (2011), requir-

ing courts to determine whether a defendant “has three previous

convictions . . . for a violent felony or a serious drug offense,” 18

U.S.C. § 924(e)(1) (emphasis added). So it follows, Fernandez con-

tends, that Beeman is also backward-looking and concerned with

“historical fact” at the time of sentencing. See Beeman, 871 F.3d at

1224 n.5.

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18 Opinion of the Court 21-12915

Fernandez further asserts that, by contrast, § 924(c) is a sub-

stantive criminal offense that requires a contemporaneous determi-

nation of whether the defendant used or possessed a firearm “dur-

ing and in relation to any crime of violence or drug trafficking

crime” or “in furtherance of ” such a crime. 18 U.S.C. §

924(c)(1)(A). He suggests that present-tense language does not, by

its plain terms, require an inquiry into “historical fact.” See Beeman,

871 F.3d at 1224 n.5.

But whatever the merits of Fernandez’s arguments, our

precedent forecloses them. Applying Beeman, we have held that a §

2255 petitioner “bear[s] the burden of showing that he is actually

entitled to relief on his Davis claim, meaning he will have to show

that his § 924(c) conviction resulted from application of solely the

residual clause.” In re Hammoud, 931 F.3d 1032, 1041 (11th Cir.

2019) (first citing In re Moore, 830 F.3d 1268, 1271–73 (11th Cir.

2016); and then citing Beeman, 871 F.3d at 1222–25). True, Ham-

moud was only an authorization to file a second or successive § 2255

petition, so it did not further articulate or apply Beeman’s frame-

work. But it is binding, just the same. See St. Hubert, 909 F.3d at

346. 10 And in any event, Hammoud is not our only § 924(c) case to

cite Beeman.

10 As we’ve noted, Taylor abrogated St. Hubert’s holding that attempted Hobbs

Act robbery qualifies as crime of violence. But it did not affect St. Hubert’s rule

that “law established in published three-judge orders . . . in the context of ap-

plications for leave to file second or successive § 2255 motions is binding prec-

edent on all subsequent panels of this Court, including those reviewing direct

appeals and collateral attacks . . . .” 909 F.3d at 346.

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21-12915 Opinion of the Court 19

Indeed, we have since reiterated Beeman’s application in the

§ 924(c) context. See Alvarado-Linares v. United States, 44 F.4th 1334,

1341 (11th Cir. 2022) (first quoting Hammoud, 931 F.3d at 1041; and

then citing Beeman, 871 F.3d at 1222–25). In Alvarado-Linares, we

noted that a § 2255 petitioner may satisfy his Beeman burden

through “record evidence” or ‘“by reference to legal principles

alone’—that is, parsing the state of the law to determine whether

the residual clause affected the conviction or sentence.” Id. (quoting

Williams, 985 F.3d at 816) (emphasis added). To be sure, we did not

actually apply Beeman in Alvarado-Linares, because “the parties d[id]

not distinguish between the state of the law at the time of the con-

viction and the state of the law today.” Id.; cf. also Granda v. United

States, 990 F.3d 1272, 1280–83 (11th Cir. 2021) (citing but not apply-

ing Beeman because petitioner procedurally defaulted his Davis

challenge to his § 924(o) conviction). And Alvarado-Linares’s claim

failed under either “state of the law,” so we did not have to consider

Beeman’s treatment of post-sentencing case law. See Alvarado-Lina-

res, 44 F.4th at 1341. But it is clear that we have, on repeated occa-

sions, said that the Beeman framework applies when we consider §

2255 petitions involving § 924(c) convictions.

As a panel, we cannot retract that extension. Rather, we are

bound by our prior panel precedent “unless and until it is overruled

or undermined 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). So we must apply Beeman to Fernan-

dez’s claims.

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20 Opinion of the Court 21-12915

3. Fernandez cannot show that his conviction relied

on § 924(c)’s residual clause, so he is not entitled to

relief.

As we’ve mentioned, under Beeman’s framework, Fernandez

must “show that his § 924(c) conviction resulted from application

of solely the residual clause.” Hammoud, 931 F.3d at 1041 (first cit-

ing Moore, 830 F.3d at 1271–73; and then citing Beeman, 871 F.3d at

1222–25). He has two paths to carrying this burden. First, he may

make the requisite showing through “a ‘finding of historical fact’—

in other words, there may be record evidence that the [residual]

clause did or did not lead to a conviction or sentence.” Alvarado-

Linares, 44 F.4th at 1341 (quoting Williams, 985 F.3d at 816); see also

Beeman, 871 F.3d at 1224 n.4. Second, and alternatively, he may “re-

solve[]” the matter “‘by reference to legal principles alone.’” Id.

(quoting Williams, 985 F.3d at 816).

But here, Fernandez can’t follow either of these paths to the

finish line. First, the record of conviction does not indicate that

Fernandez’s § 924(c) conviction—with respect to either the Hobbs

Act conspiracy or attempt predicate—relied on the residual clause.

Rather, the jury returned only a general guilty verdict, and the jury

was instructed only that it must find “that the defendant commit-

ted a drug trafficking offense or crime of violence charged in

Counts [3, 4, 5, or 6] of the Superseding Indictment.” As for the

judgment, it reads only that Fernandez was convicted under 18

U.S.C. § 924(c)(1)(A) for “Carrying a Firearm During a Drug Traf-

ficking Crime/Crime of Violence.” So the record does not prove

that Fernandez’s § 924(c) conviction rested on the residual clause.

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21-12915 Opinion of the Court 21

Fernandez’s second path fares no better. He first asks us to

confront Brown and Taylor. Brown and Taylor held that conspiracy

and attempt to commit Hobbs Act robbery, respectively, are not

“crimes of violence” under § 924(c)’s elements clause. Brown, 942

F.3d at 1075; Taylor, 596 U.S. at 852. Fernandez argues that those

decisions did not limit their holdings to convictions after 2019 or

2022, respectively, so convictions for conspiracy and attempt to

commit Hobbs Act robbery could never be crimes of violence as a

matter of categorical statutory analysis.

We agree. “A judicial construction of a statute is an author-

itative statement of what the statute meant before as well as after

the decision of the case giving rise to that construction.” Rivers v.

Roadway Express, Inc., 511 U.S. 298, 312–13 (1994). In other words,

Brown and Taylor stand for the propositions, respectively, that

Hobbs Act conspiracy and attempt were not “crimes of violence”

under the elements clause at any point—not when Fernandez was

convicted in 2009, and not now. That makes sense, because the

judiciary’s role is “to say what a statute means,” Rivers, 511 U.S. at

312, which is necessarily what the statute has always meant.

But Fernandez’s statutory challenge to his conviction does

not satisfy his burden under our precedent. Fernandez’s second or

successive § 2255 claim is necessarily a constitutional one, see 28 §

2255(h)(2): namely, that his § 924(c) conviction is void because it

may have relied on the residual clause in violation of Davis. Under

the strictures of § 2255(h)(2), our precedent holds that Fernandez’s

statutory claims are “irrelevant” if he cannot meet his “threshold

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22 Opinion of the Court 21-12915

burden” of showing a constitutional violation. See Santos, 982 F.3d

at 1309–10. And under Beeman, Fernandez can show a Davis viola-

tion only if, more likely than not, “his § 924(c) conviction resulted

from application of solely the residual clause.” Hammoud, 931 F.3d

at 1041; see also Beeman, 871 F.3d at 1222.

In other words, for the purposes of Fernandez’s Davis

claim—which turns on the residual clause—it is “irrelevant”

whether his prior convictions are invalid predicates under § 924(c)’s

elements clause. See Santos, 982 F.3d at 1310. Fernandez is entitled

to relief only if the sentencing court relied solely on the unconsti-

tutional residual clause, and he must make that showing as Beeman

directs. That means he must either show that the district court ex-

pressly relied solely on the residual clause, or he must cite case law

showing “at the time of sentencing that only the residual clause

would authorize a finding that the prior conviction was a” crime of

violence. Beeman, 871 at 1224 n.5. But we’ve said that “a sentencing

court’s decision today that” inchoate Hobbs Act offenses “no

longer qualif[y] under present law as a violent felony”—or, as ex-

tended to § 924(c), a “crime of violence”—“under the elements

clause . . . casts very little light, if any, on [that] key question of

historical fact.” Id.

We must return, then, to the state of our case law in 2009,

when Fernandez was convicted and sentenced. Fernandez argues

that “in 2009, the legal landscape for inchoate crimes conclusively

demonstrated that conspiracy and attempt convictions could only

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21-12915 Opinion of the Court 23

have qualified under the residual clause” of § 924(c). That over-

states our precedent.

Fernandez relies principally on United States v. Wilkerson, 286

F.3d 1324 (11th Cir. 2002) (per curiam), and United States v. Rainey,

362 F.3d 733 (11th Cir. 2004) (per curiam). Neither helps him.

First, in Wilkerson, the defendant challenged his ACCA en-

hancement based in part on his prior Florida conviction for con-

spiracy to commit robbery. 286 F.3d at 1325. We rejected the de-

fendant’s claims, concluding that “[w]hen one reaches an agree-

ment with a co-conspirator to commit a robbery, and formulates

the intent to commit the robbery, his conduct presents at least a

potential risk of physical injury within the meaning of §

924(e)(2)(B)(ii).” Id. at 1325–26. Our holding cited and clearly

rested on the ACCA’s residual clause. In other words, Wilkerson

“established that an [inchoate] crime qualified as a violent felony

when its object involved conduct that ‘presented a serious potential

risk of physical injury to another’” under the residual clause. United

States v. James, 430 F.3d 1150, 1156 (11th Cir. 2005) (cleaned up)

(quoting Wilkerson, 286 F.3d at 1326); cf. also United States v. Cruz,

805 F.2d 1464, 1474 n.11 (11th Cir. 1986) (reasoning that “any con-

spiracy to commit a crime of violence” necessarily “create[s] a sub-

stantial risk of violence” within the meaning of 18 U.S.C. § 16(b)).

Second, in Rainey, the defendant challenged his ACCA en-

hancement based in part on his prior Florida conviction for at-

tempted arson. 362 F.3d at 734. Relying on Wilkerson, we rejected

this challenge, reasoning that “[a]ttempt, like conspiracy, presents

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24 Opinion of the Court 21-12915

the potential risk of physical injury to another.” Id. at 736. Again,

this holding clearly rested on the ACCA’s residual clause.

But neither of these cases established that a § 924(c) convic-

tion based on Hobbs Act attempt or conspiracy could be valid un-

der only the residual clause. 11 In other words, case law does not

show that, as a matter of “historical fact,” the sentencing court

must have relied on the residual clause, only (at most) that it could

have. See Beeman, 871 F.3d at 1224 n.5; see also Pickett, 916 F.3d at

964 (“[A] conviction’s eligibility under one or the other clause can-

not be determinative . . . because the conviction’s arguable qualifi-

cation under the elements clause would not necessarily mean the

judge relied on that clause.” (citation omitted)).

So these cases don’t establish that “the law was clear at the

time of sentencing that only the residual clause would authorize”

a § 924(c) conviction based on Hobbs Act attempt or conspiracy.

See Beeman, 871 F.3d at 1224 n.5; cf. also Williams, 985 F.3d at 815

(denying § 2255 relief where the “then-existing legal landscape . . .

was, at best, unclear which clause or clauses the sentencing court

would have relied on”); Santos, 982 F.3d at 1312 (same, where case

law at the time of sentencing was “uninstructive”).

Our historical law on whether Hobbs Act attempt or con-

spiracy would qualify under the elements clause doesn’t help Fer-

nandez, either. We have reasoned that the “subsequent trajectory

11 These cases arose under the ACCA, not § 924(c). And each case concerned

state convictions, not Hobbs Act robbery (or inchoate Hobbs Act offenses).

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21-12915 Opinion of the Court 25

of the law” is relevant to the determination of whether a “sentenc-

ing judge readily could have believed that [the] conviction qualified

under the elements clause.” Santos, 982 F.3d at 1313. And nine

years after Fernandez was convicted and sentenced, we held that

attempted Hobbs Act robbery was a “crime of violence” under the

elements clause. St. Hubert, 909 F.3d at 346. So the district court

could have—wrongly—believed that attempted Hobbs Act robbery

was a valid predicate for Fernandez’s § 924(c) conviction under the

elements clause. Fernandez has not met his burden under Beeman

to prove otherwise.

In sum, Fernandez has failed to show that, as a matter of

“historical fact,” his § 924(c) conviction resulted from the unconsti-

tutional residual clause, either through “record evidence” or “by

reference to legal principles alone.” See Alvarado-Linares, 44 F.4th at

1341 (quoting Williams, 985 F.3d at 816). Under our precedent,

then, he is not entitled to § 2255 relief.

And we cannot sidestep prior panel precedent even if, “were

we to decide this issue on a clean slate, we would not so hold.” In

re Dickerson, 222 F.3d 924, 926 (11th Cir. 2000); see also United States

v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (we are bound

by prior panel precedent even if we are “convinced it is wrong”);

Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (prior prec-

edent binds us, even if there are “defect[s] in the prior panel’s rea-

soning or analysis”). Our precedent requires us to apply Beeman,

and Fernandez’s inability to meet his burden under that framework

requires us to deny his § 2255 petition.

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26 Opinion of the Court 21-12915

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s de-

nial of Fernandez’s § 2255 motion.

AFFIRMED.

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21-12915 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, concurring:

Luis Fernandez stands convicted of and will spend twenty-

five years in prison for something that Congress did not make a

crime. That is so even though Congress enacted a mechanism by

which we can correct this error—28 U.S.C. § 2255. We must affirm

this result because under our prior-precedent rule, see United States

v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), we must follow In re

Hammoud, 931 F.3d 1032, 1041 (11th Cir. 2019), and its progeny,

which in turn direct us to apply the framework that Beeman v.

United States, 871 F.3d 1215, 1222–25 (11th Cir. 2017), estab-

lishes. And that framework requires us to deny Fernandez’s habeas

petition.

As applied in § 924(c) cases, Beeman demands that we set our

legal flux capacitors 1 to the moment of the petitioner’s conviction

and place ourselves in the legal landscape as it existed then. And if

we misunderstood the law at the time of the petitioner’s conviction

to authorize that conviction, we must leave that conviction in

place. We must do that even if the Supreme Court has since found

our understanding of the law to be wrong and has held that the

statute of conviction does not now and has not ever covered the

petitioner’s conduct.

That’s wrong because Beeman itself is wrong. Its rule is un-

moored from the text of 28 U.S.C. § 2255, the statute that

1 See Back to the Future (Universal Pictures 1985).

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2 ROSENBAUM, J., Concurring 21-12915

authorizes us to consider challenges to a prisoner’s convic-

tion. That alone is reason to revisit Beeman, Hammoud, and their

progeny.

***

Beeman applies § 2255, the statute that authorizes collateral

review of federal criminal convictions and sentences. But conspic-

uously absent from Beeman is any analysis of § 2255’s text. In fact,

Beeman never looked at § 2255’s text. And that’s so even though we

must “begin [statutory interpretation], as always, with the text” of

the relevant statute. See United States v. Pielago, 135 F.3d 703, 712

(11th Cir. 1998). For this reason alone, it’s time to revisit Beeman.

When we consult § 2255’s text, we must conclude that the

Beeman framework is wrong. Because Fernandez brings a second

or successive petition, I begin my analysis with § 2255(h), which

establishes the gates through which a second or successive would-

be petitioner may enter federal court. As relevant here, § 2255(h)(2)

requires that “[a] second or successive motion must be certified . . .

by a panel of the appropriate court of appeals to contain—(2) a

new rule of constitutional law, made retroactive to cases on collat-

eral review by the Supreme Court, that was previously unavaila-

ble.” 28 U.S.C. § 2255(h)(2).

Most of this requirement refers to terms of art and is

straight-forward: “[a] second or successive motion”; “a panel of the

appropriate court of appeals”; and “made retroactive to cases on

collateral review by the Supreme Court, that was previously una-

vailable.” A “second or successive motion” is a term of art that

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21-12915 ROSENBAUM, J., Concurring 3

means a prisoner’s second or later-in sequence challenge to the

same judgment. See Telcy v. United States, 20 F.4th 735, 740 (11th

Cir. 2021). A “panel of the appropriate court of appeals” is the

court of appeals that would review “the order entered on the [orig-

inal § 2255] motion.” 28 U.S.C. § 2255(d). And we’ve explained that

“a new rule of constitutional law, made retroactive to cases on col-

lateral review by the Supreme Court, that was previously unavaila-

ble,” id. § 2255(h)(2), is one that “was not dictated by precedent ex-

isting at the time the defendant’s conviction became final,” Teague

v. Lane, 489 U.S. 288, 301 (1989). To apply retroactively, a “new”

rule must fit in one of two categories: (1) “new substantive rules”;

or (2) “a small set of watershed rules of criminal procedure impli-

cating the fundamental fairness and accuracy of the criminal pro-

ceeding.” Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004) (cleaned

up). A new “substantive” rule, in turn, is one that “narrow[s] the

scope of a criminal statute by interpreting its terms” or “place[s]

particular conduct or persons covered by the statute beyond the

State’s power to punish.” Id. (citations omitted).

That leaves “contain.” At the time of § 2255(h)’s enactment

in 1996, “contain” meant “comprise” or “include.” See Contain,

Merriam-Webster’s Collegiate Dictionary (10th ed. 1996); see also

Contain, Webster’s New World College Dictionary (3d ed. 1997)

(“to have in it; hold, enclose, or include”). So to satisfy § 2255(h)(2),

a movant must show that his motion includes “a new rule of con-

stitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.”

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4 ROSENBAUM, J., Concurring 21-12915

By its terms, then, a § 2255(h)(2) certification is not a merits

determination; rather, it is merely a finding that a petitioner has

met the gatekeeping requirements. That is, it’s a circuit court’s de-

termination that the movant’s motion includes a qualifying new

rule.

Because a § 2255(h)(2) certification is not a merits determi-

nation, we’ve explained that a movant meets his responsibilities un-

der that section with a prima facie showing that his challenged con-

viction (or sentence) “may—not that it does, but it may—impli-

cate” a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously una-

vailable. Hammoud, 931 F.3d at 1040. Once we’ve certified a mo-

vant’s motion to contain a qualifying new rule, § 2255(h)(2) has

served its function, and our gatekeeping role is complete. See

United States v. Peppers, 899 F.3d 211, 229–30 (3d Cir. 2018).

The movant’s second or successive § 2255 motion then goes

before the district court for merits consideration under § 2255(b).

Subsection (b) provides, in relevant part, that if the district court

“finds . . . that the sentence imposed was not authorized by law or other-

wise open to collateral attack, . . . the court shall vacate and set the

judgment aside . . . .” 28 U.S.C. § 2255(b) (emphasis added).

“[T]he sentence imposed,” of course, refers to the sentence

that the court imposed that may implicate the new rule. And a

court must vacate and set aside the judgment if that sentence is

“not authorized by law or otherwise open to collateral attack.” Id.

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21-12915 ROSENBAUM, J., Concurring 5

So in Fernandez’s case, at subsection (h)(2), we determined

Fernandez made a prima facie showing that his § 924(c) conviction

implicated Davis’s new rule—that § 924(c)’s residual clause is void

for vagueness. See United States v. Davis, 588 U.S. 445, 470 (2019).

Fernandez therefore passed through § 2255(h)(2)’s gates and into

district court for consideration of the merits of his claim.

Then, as I read § 2255, the district court had to conduct a

two-step inquiry. First, it had to start with the claim that got Fer-

nandez’s § 2255 petition through the gates: his Davis claim. That

is, it had to consider whether Fernandez’s § 924(c) conviction could

have been predicated on a crime that qualified under only § 924(c)’s

(void-for-vagueness) residual clause at the time of conviction. In

other words, the court had to look to the two predicate crimes

here—Hobbs Act conspiracy and attempt—and determine

whether it could rule out the possibility that they supported Fer-

nandez’s conviction under the residual clause. So for instance, if

Fernandez had challenged Hobbs Act conspiracy and attempt as

predicates and the sentencing court had found them to be proper

predicates under the elements clause but not the residual clause,

the district court could have ruled out the possibility that Fernan-

dez’s conviction implicated Davis’s new rule, and Fernandez would

have been left without a claim that permitted second or successive

collateral review under § 2255. In that case, denial of the motion

would be in order.

But without an indication that the predicates couldn’t have

relied on the residual clause, § 2255(b) demands further

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6 ROSENBAUM, J., Concurring 21-12915

consideration of the motion. At step two, § 2255(b)’s text requires

the district court to determine whether, although the sentencing

court could have wrongly relied on the residual clause to find the

purported predicates qualified, the § 924(c) conviction is nonethe-

less “authorized by law or otherwise [not] open to collateral at-

tack.” 28 U.S.C. § 2255(b). So here, the district court would ask

whether the Hobbs Act attempt and conspiracy predicates could

have qualified under the only other available § 924(c) clause—the

elements clause.

They couldn’t. Taylor held that attempted Hobbs Act rob-

bery doesn’t satisfy the elements clause. United States v. Taylor, 596

U.S. 845, 852 (2022). And Brown held that conspiracy to commit

Hobbs Act robbery doesn’t satisfy the elements clause. Brown v.

United States, 942 F.3d 1069, 1075 (11th Cir. 2019) (per curiam). Be-

cause no other clause exists by which a crime may qualify as a pred-

icate under § 924(c), see Maj. Op. at 9 n.6, Fernandez’s § 924(c) con-

viction was “not authorized by law or otherwise open to collateral

attack,” and the plain text of § 2255(b) requires that his motion be

granted.

Yet instead of this straightforward conclusion, Beeman com-

pels the opposite result. Beeman’s framework requires courts to

travel back in time to determine not that the district court was

wrong when it convicted the movant—as we know now, it was—

but rather whether the district court was wrong in what Beeman

says is the right way. That misunderstands fundamental principles

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21-12915 ROSENBAUM, J., Concurring 7

of statutory interpretation, as the Supreme Court has articulated

them.

The Supreme Court has explained that “[a] judicial construc-

tion of a statute is an authoritative statement of what the statute

meant before as well as after the decision of the case giving rise to

that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–

13 (1994). That is, the Supreme Court’s interpretation of a statute

tells us what the statute has “always meant.” Id. at 313 n.12. In-

deed, when the Supreme Court “construes a statute, it is explaining

its understanding of what the statute has meant continuously since

the date when it became law.” Id.; cf. also Peppers, 899 F.3d at 230

(“decisions interpreting the ACCA are not new law at all” but ra-

ther “instruct courts on what has always been the proper interpre-

tation of the ACCA’s provisions”).

In other words, the residual and elements clauses have “al-

ways meant,” Rivers, 511 U.S. at 313 n.12, what the Supreme Court

said they meant in Davis and Taylor, respectively. The same is true

of the elements clause’s meaning as set forth in Brown. So Fernan-

dez’s § 924(c) conviction, which is based solely on the predicate

crimes of Hobbs Act conspiracy and attempt (which do not qualify

as § 924(c) predicates under either the elements or residual clause

and have never so qualified), was necessarily void “before as well as

after,”2 Davis, Taylor, and Brown, collectively, were issued. And Fer-

nandez’s conviction “was not authorized by law or otherwise open

2 Rivers, 511 U.S. at 313.

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8 ROSENBAUM, J., Concurring 21-12915

to collateral attack,” 28 U.S.C. § 2255(b), from the moment of con-

viction. As a result, § 2255(b) requires relief.

But Beeman imposes an additional hurdle that is at odds with

§ 2255’s plain text. Instead of simply requiring Fernandez to show

that his conviction or sentence “was not authorized by law,” id.,

Beeman requires him to show that as a matter of “historical fact,”

the sentencing court “more likely than not” relied on the residual

clause. See Beeman, 871 F.3d at 1224 n.5, 1225. It is not enough to

show that the law could not have authorized his conviction; the pe-

titioner must show that the sentencing court did not in fact impose

that conviction solely under the residual clause.

But as I’ve noted, the Supreme Court’s interpretation of a

statute tells us what the statute has “always meant.” Rivers, 511 U.S.

at 313 n.12. So even if Beeman silently relied on the word “was” in

§ 2255(b)’s directive that a court that “finds . . . that the sentence

imposed was not authorized by law or otherwise open to collateral

attack, . . . shall vacate and set the judgment aside . . . ,” (Beeman

does not include a textual analysis), that cannot justify Beeman’s his-

torical inquiry. If it could, then no Supreme Court interpretation

of a statute could ever satisfy § 2255(b)’s language. After all, under

the type of historical inquiry Beeman describes, interpretations that

the Supreme Court has since declared are broader than the law per-

mits—including, for instance, pre-Davis residual-clause interpreta-

tions—were historically thought to be “authorized by law.” But of

course, the Supreme Court has taught us that that is not the case:

when the Supreme Court “construes a statute, it is explaining its

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21-12915 ROSENBAUM, J., Concurring 9

understanding of what the statute has meant continuously since

the date when it became law.” Rivers, 511 U.S. at 313 n.12.

In short, Beeman is contrary to what § 2255(b) requires. Gen-

erally, “[w]e will not do to the statutory language what Congress

did not do with it, because the role of the judicial branch is to apply

statutory language, not to rewrite it.” Harris v. Garner, 216 F.3d 970,

976 (11th Cir. 2000) (en banc). Yet Beeman effectively rewrites §

2255(b), raising the burden on habeas petitioners beyond that im-

posed by Congress. Indeed, it “penalize[s] a [habeas petitioner] for

a court’s discretionary choice not to specify under which clause” it

sentenced him. United States v. Winston, 850 F.3d 677, 682 (4th Cir.

2017), abrogated on other grounds by Stokeling v. United States, 586 U.S.

73 (2019).

It does so without textual justification—indeed, without

confronting the text of § 2255(b) at all. 3 And it does so in contra-

vention of the separation of powers.

3 None of our sister circuits who have adopted Beeman’s rule appear to have

consulted the text of § 2255(b), either. See Dimott v. United States, 881 F.3d 232,

243 (1st Cir. 2018); United States v. Clay, 921 F.3d 550, 558–59 (5th Cir. 2019);

Potter v. United States, 887 F.3d 785, 788 (6th Cir. 2018); Walker v. United States,

900 F.3d 1012, 1015 (8th Cir. 2018); United States v. Driscoll, 892 F.3d 1127, 1135

(10th Cir. 2018); United States v. West, 68 F.4th 1335, 1338 (D.C. Cir. 2023). The

Third, Fourth, and Ninth Circuits have adopted a more permissive rule, hold-

ing that a petitioner meets his burden if his sentence “may have been predi-

cated on application of the now-void residual clause.” Winston, 850 F.3d at 682

(emphasis added); see also Peppers, 899 F.3d at 216; United States v. Geozos, 870

F.3d 890, 896 (9th Cir. 2017), abrogated on other grounds by Stokeling, 586 U.S. 73.

The Second and Seventh Circuit have “not yet taken a position on the

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10 ROSENBAUM, J., Concurring 21-12915

Applying Beeman here arrogates power to ourselves to ex-

pand § 924(c) beyond what Congress authorized. See THE

FEDERALIST No. 47 ( James Madison) (“The judges can exercise no .

. . legislative function . . . .”). Rather than simply enforcing the law

as Congress has written it and as the Supreme Court and we have

interpreted it, we are (impossibly) time traveling to save an invalid

conviction. Our application of Beeman violates the separation of

powers, impermissibly expanding § 924(c)’s reach beyond its text.

See Bousley v. United States, 523 U.S. 614, 620–21 (1998) (“[U]nder our

federal system, it is only Congress, and not the courts, which can

make conduct criminal.”).

Not only that, but we’re requiring an incarcerated § 2255

movant to build us the DeLorean.4 That is not our role as a coequal

branch of government. See Peppers, 899 F.3d at 230 (“[A] rule that

requires judges to take a research trip back in time and recreate the

then-existing state of the law—particularly in an area of law as

muddy as this one—creates its own problems in terms of fairness

and justiciability.” (citation and internal quotation marks omitted)).

question.” Waagner v. United States, 971 F.3d 647, 655 (7th Cir. 2020); see also

Savoca v. United States, 21 F.4th 225, 234 n.7 (2d Cir. 2021), vacated in part on

reh’g, No. 20-1502-PR, 2022 WL 17256392 (2d Cir. Nov. 29, 2022).

4 To be clear, I do not dispute the general proposition that a § 2255 petitioner

bears the burden of proving his entitlement to relief. See Beeman, 871 F.3d at

1222. But Beeman distorts that burden into an insurmountable wall, without

textual justification and with constitutional flaws.

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21-12915 ROSENBAUM, J., Concurring 11

To be sure, the interest in finality cautions against needlessly

expanding the scope of habeas review. See, e.g., Beeman, 871 F.3d at

1223. But the interest in finality cannot overcome the plain text of

§ 2255. We must follow the law as Congress has written it.

However strong our interest in finality, “[t]here is little soci-

etal interest in permitting the criminal process to rest at a point

where it ought properly never to repose.” Welch v. United States, 578

U.S. 120, 131 (2016) (alteration in original) (citation and internal

quotation marks omitted). And a § 924(c) conviction based on nec-

essarily invalid predicates is one such point.

In sum, Beeman requires us to ignore the text of § 2255(b), as

well as decisions of the Supreme Court and this Court that inform

“what [§ 924(c)] has meant continuously since the date when it be-

came law.” See Rivers, 511 U.S. at 313 n.12. Beeman was wrong from

the start, and we should correct it.

***

For the reasons I’ve explained, the Beeman framework con-

travenes the plain text of § 2255(b), undercuts precedent, and

threatens the separation of powers. In other words, Beeman’s his-

torical-inquiry DeLorean has malfunctioned from the start. It is

wrong, then, to continue to insist that we use it. Rather, we must

correct past sentences that were not “authorized by law or other-

wise open to collateral attack,” 28 U.S.C. § 2255.

So while our prior-panel-precedent rule compels me to con-

cur in the result, I would rehear this case en banc to revisit Beeman,

Hammoud, and their progeny.

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22-12915 Newsom, J., Concurring 1

NEWSOM, Circuit Judge, concurring:

I concur in the Court’s judgment and join its opinion in full.

I agree that Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017),

both (1) imposes on a § 2255 movant bringing a Johnson claim the

burden of demonstrating that his ACCA-based sentence enhance-

ment resulted from the statute’s invalid residual clause and (2) re-

quires the § 2255 court to determine whether the movant has made

the necessary showing by engaging in what we there called a “his-

torical” inquiry. And I agree that we are bound by decisions like In

re Hammoud, 931 F.3d 1032 (11th Cir. 2019), and Alvarado-Linares v.

United States, 44 F.4th 1334 (11th Cir. 2022), which extended Bee-

man’s reasoning from ACCA to § 924(c) cases.

I write separately simply to flag a few pesky issues.

I

First, despite initial misgivings, I’m no longer particularly

troubled by Beeman’s extension from ACCA to § 924(c) cases. Orig-

inally, I was focused on what I perceived to be a relevant distinction

between the two statutes—namely, that whereas ACCA refers to

“previous convictions,” 18 U.S.C. § 924(e)(1), and thus necessarily

asks a “backward-looking question,” McNeill v. United States, 563

U.S. 816, 820 (2011), § 924(c) codifies a contemporaneous offense

and thus contains no temporal element of the sort that would re-

quire a similarly retrospective inquiry. Upon reflection, though,

I’m not sure that difference provides a basis for distinguishing

ACCA cases from § 924(c) cases vis-à-vis Beeman. It now seems to

me that what requires the look-back that Beeman prescribes—the

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2 Newsom, J., Concurring 22-12581

“historical” investigation—is the fact that a § 2255 proceeding,

whether challenging an ACCA enhancement or a § 924(c) convic-

tion, occurs years or even decades after the fact. In either instance,

there’s simply no way for a § 2255 movant to meet his Beeman bur-

den—or for the reviewing court to find that burden met—other

than by going “back in time,” so to speak.

II

Second, though, and separately, I do worry that one frag-

ment of an important footnote in Beeman might be inconsistent

with Supreme Court guidance about the effect of a court’s decision

regarding the meaning and application of written law. Beeman’s

footnote 5 says not only (1) that a § 2255 petitioner bringing a John-

son (or by extension, a Davis) claim must prove a “historical fact”—

namely, that he was punished under the applicable statute’s invalid

residual clause—but also (2) that after-the-fact case law holding that

a particular offense doesn’t qualify under the applicable statute’s

still-valid elements clause “casts very little light, if any,” on the re-

quired “historical” inquiry. 871 F.3d at 1124 n.5. I share Judge Ros-

enbaum’s concern that the latter observation contradicts the Su-

preme Court’s holding in Rivers v. Roadway Express, Inc.—which it

grounded in fundamental jurisprudential principles—that “[a] judi-

cial construction of a statute is an authoritative statement of what

the statute meant before as well as after the decision of the case

giving rise to that construction,” i.e., what the statute “has ‘always

meant.’” Rosenbaum Conc. Op. at 7 (quoting 511 U.S. 298, 312–13

& n.12 (1994)); accord, e.g., Kuhn v. Fairmont Coal. Co., 215 U.S. 349,

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22-12915 Newsom, J., Concurring 3

372 (1910) (Holmes, J., dissenting) (“Judicial decisions have had ret-

rospective operation for near a thousand years.”).

To be sure, statutory changes adopted after a movant’s judg-

ment of conviction is entered or his sentence imposed should have

little bearing on the Beeman inquiry. Cf. Brown v. United States, 144

S. Ct. 1195, 1210 (2024) (holding that “a state drug conviction

counts as an ACCA predicate if it involved a drug on the federal

schedules at the time of that offense” regardless of whether the

drug remained on those schedules at the time of sentencing). But

that rule presumably results, at least in part, from the fact that leg-

islation presumptively operates prospectively only. Critically, the

rule regarding judicial decisions is precisely the opposite. See, e.g.,

Rivers, 511 U.S. at 311–12 (“The principle that statutes operate only

prospectively, while judicial decisions operate retrospectively, is fa-

miliar to every law student.” (citation and internal quotation marks

omitted)).

So, for instance, the upshot of the Supreme Court’s decision

in 2022 that attempted Hobbs Act robbery doesn’t constitute a

“crime of violence” within the meaning of § 924(c)’s elements

clause, see United States v. Taylor, 596 U.S. 845, 852 (2022), was that

the attempt offense had never qualified—including in 2009, when

Fernandez was convicted and sentenced. So too, the upshot of this

Court’s decision in 2019 that conspiracy to commit Hobbs Act rob-

bery isn’t a “crime of violence” within the meaning of § 924(c)’s

elements clause, see Brown v. United States, 942 F.3d 1069, 1075 (11th

Cir. 2019), was that the conspiracy offense had never qualified—

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4 Newsom, J., Concurring 22-12581

again, including in 2009. So even granting the correctness of Bee-

man’s observation that a Johnson- or Davis-based § 2255 motion re-

quires the reviewing court to engage in a “historical” inquiry, I

think, in a case like this, that what I’ll call the “Rivers principle”

may—and absent Beeman’s footnote 5 would—eliminate the possi-

bility that Fernandez’s attempt and conspiracy predicates could

have been grounded in § 924(c)’s elements clause, leaving only one

possibility: that his § 924(c) conviction was predicated on that stat-

ute’s invalid residual clause.

III

Which leads to a third and final observation. I think we

might want to revisit what I take to be an assumption underlying

our decision in Santos v. United States, 982 F.3d 1303 (11th Cir.

2020). There, a § 2255 movant argued that a particular state-law

conviction—battery on a law-enforcement officer—wasn’t a valid

ACCA predicate. See id. at 1306. To make the necessary Beeman

showing that his enhancement rested solely on ACCA’s residual

clause, the movant contended that the battery offense was not “cat-

egorically a crime of violence under [ACCA’s] elements clause”—

and therefore, the theory went, his enhancement for that crime

must have been predicated on the residual clause. Id. at 1307. The

Santos panel, though, rejected the movant’s argument as “irrele-

vant.” Id. at 1310. By way of explanation, the panel said that “[i]t

is not enough to establish that a district court could have relied on

either the residual clause or another clause; rather, the movant

must show that the district court relied only on the residual clause.”

Id.

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22-12915 Newsom, J., Concurring 5

As I read Santos, in concluding that the elements-clause ar-

gument was “irrelevant,” our decision effectively precluded § 2255

movants from meeting their Beeman burden by what I’d call pro-

cess of elimination. A § 2255 movant, in other words, can’t demon-

strate that a convicting or sentencing court must have relied on an

invalid residual clause by showing that no other avenue was avail-

able to it. Rather, the movant must introduce affirmative evidence

that the convicting or sentencing court in fact relied on a residual

clause. That seems to me to establish too high an evidentiary bur-

den—one not mandated by either the text of § 2255 or Beeman. To

the extent that I’ve misread Santos, I’m happy to be corrected. But

if I’ve understood it properly, I would be in favor of reconsidering

it and clarifying that a § 2255 movant like Fernandez can meet his

Beeman burden by eliminating valid elements-clause off-ramps and

thereby showing—again, by process of elimination—that he had to

have been convicted (or sentenced, as the case may be) under an

invalid residual clause.

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21-12915 LUCK, J., concurring in the judgment 1

LUCK, Circuit Judge, concurring in the judgment:

For two reasons, I agree with the majority opinion that Fer-

nandez cannot show that his conviction rested solely on section

924(c)’s residual clause. Fernandez has not met his burden to show

the law was clear at the time of sentencing that only the residual

clause would authorize a section 924(c) conviction based on Hobbs

Act attempt or conspiracy. And he has not met his burden to rule

out the possibility that his section 924(c) conviction rested on either

of the two drug trafficking predicates (attempt and conspiracy to

possess cocaine with the intent to distribute).

Briefly, here are two dicta warnings for district courts and

future panels reading the majority opinion. First, footnote six’s

double jeopardy discussion is not necessary to the result because

the majority opinion assumes—without deciding—that the drug

trafficking crimes are not valid predicates. Second, the discussion

about the categorical statutory analysis under Rivers v. Roadway Ex-

press, Inc., 511 U.S. 298 (1994), is not necessary because, as the ma-

jority opinion explains, it is irrelevant whether Fernandez’s prior

convictions are invalid predicates under section 924(c)’s elements

clause. Even if Fernandez is right about his categorical statutory

analysis under Rivers, it doesn’t matter because he has not satisfied

his burden to show that his section 924(c) conviction rested solely

on the residual clause.