# Luis Fernandez v. United States

> Court of Appeals for the Eleventh Circuit · August 13, 2024 · 114 F.4th 1170

URL: https://www.frixlaw.com/law-library/cases/10506122

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 13, 2024
- **Citations:** 114 F.4th 1170
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10506122

## How later opinions describe it (automated extraction)

- explaining that a defendant moved for relief from his conviction under 28 U.S.C. § 2255

## Opinion text

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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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21-12915 Opinion of the Court 5

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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21-12915 Opinion of the Court 9

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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12 Opinion of the Court 21-12915

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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21-12915 Opinion of the Court 13

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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21-12915 Opinion of the Court 15

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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16 Opinion of the Court 21-12915

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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21-12915 Opinion of the Court 17

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10506122. Public record. Not legal advice.