De'Angelo Cross v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 17-2282 & 17-2724

DE’ANGELO A. CROSS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee,

and

CARL LEO DAVIS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeals from the United States District Court for the

Eastern District of Wisconsin.

No. 15-C-1338 — J. P. Stadtmueller, Judge, and

No. 16-C-747 — William C. Griesbach, Chief Judge.

____________________

ARGUED JANUARY 10, 2018 — DECIDED JUNE 7, 2018

____________________

2 Nos. 17-2282 & 17-2724

Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and

BUCKLO, District Judge. *

WOOD, Chief Judge. When compliance with the U.S. Sen-

tencing Guidelines was still understood to be mandatory, dis-

trict courts were required to impose an extended term of in-

carceration on so-called career criminals. This class of repeat

felons was limited to those previously convicted twice for

drug crimes or crimes of violence. The latter offenses included

any felony “involv[ing] conduct that present[ed] a serious po-

tential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a)(2) (1992); U.S.S.G. § 4B1.2(a)(2) (2000). We will call

that definition of a crime of violence the “residual clause” in

this opinion.

The Supreme Court jettisoned the mandatory nature of the

guidelines in 2005, in its decision in United States v. Booker,

543 U.S. 220. The Booker decision did not, however, immedi-

ately affect sentences imposed on defendants previously.

Thus, De’Angelo Cross and Carl Davis continued to serve ob-

ligatory sentences as career offenders as required by the man-

datory guidelines. Both Cross and Davis qualified for that

designation because of the residual clause. Their present ap-

peal challenged the constitutionality of that clause.

Two recent developments form the backdrop for our deci-

sion: first, the Supreme Court’s holding in Johnson v. United

States, 135 S. Ct. 2551 (2015), that the identical language in the

Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012), is un-

constitutionally vague; and second, the Court’s ruling in Beck-

les v. United States, 137 S. Ct. 886 (2017), that Johnson does not

extend to the post-Booker advisory guidelines, including the

* Of the Northern District of Illinois, sitting by designation.

Nos. 17-2282 & 17-2724 3

career-offender guideline. We conclude that Beckles applies

only to advisory guidelines, not to mandatory sentencing

rules. Under Johnson, the guidelines residual clause is uncon-

stitutionally vague insofar as it determined mandatory sen-

tencing ranges for pre-Booker defendants. Cross and Davis are

both entitled to be resentenced.

I

Cross and Davis brought their cases to the district court

through motions under 28 U.S.C. § 2255 for relief from their

sentences. Each was unsuccessful before the district court and

appealed to this court. In light of the substantial overlap in the

issues presented, we consolidated their cases.

When the district court sentenced Cross (2000) and Davis

(1992), the then-mandatory sentencing guidelines prescribed

an elevated sentence for those denominated career offenders.

U.S.S.G. § 4B1.1. A defendant qualified as a career offender

upon his third felony conviction for either a crime of violence

or a drug offense. Id. The guidelines defined the term “crime

of violence” in three ways: an elements approach, U.S.S.G.

§ 4B1.2(a)(1); an enumerated offense approach, id.

§ 4B1.2(a)(2), first part; and the residual clause, id.

§ 4B1.2(a)(2), final clause. As we noted, the residual clause

covered any offense that “involves conduct that presents a se-

rious potential risk of physical injury to another.” Id. Both

Cross and Davis were sentenced as career offenders on the

basis of the residual clause, and neither objected at trial. Davis

did not file a direct appeal. Although Cross filed a notice of

appeal (despite generally waiving his right to appeal or to file

for collateral relief in his plea agreement), this court dismissed

his case as frivolous after his attorney filed a no-merit brief to

which Cross did not respond. United States v. Cross,

4 Nos. 17-2282 & 17-2724

24 F. App’x 576, 577 (7th Cir. 2001); see Anders v. California,

386 U.S. 738, 744–45 (1967).

Since Davis’s and Cross’s convictions, the Supreme Court

has dramatically altered the federal sentencing landscape.

First, Booker demoted the federal sentencing guidelines from

mandatory to advisory. 543 U.S. 220. Then Johnson struck

down the residual clause of the Armed Career Criminal Act

(ACCA) as unconstitutionally vague, overruling contrary de-

cisions in James v. United States, 550 U.S. 192 (2007), and Sykes

v. United States, 564 U.S. 1 (2011), and upsetting a host of de-

cisions from every court of appeals in the country. The resid-

ual clause of the ACCA, which imposed increased minimum

and maximum sentences, used identical language to that em-

ployed in the guidelines. Compare 18 U.S.C. § 924(e)(2)(B)

(2012) with U.S.S.G. § 4B1.2(a)(2) (1992 and 2000). The Court

subsequently declared Johnson retroactive. Welch v. United

States, 136 S. Ct. 1257 (2016). Meanwhile, the Court applied

the ex post facto clause to bar a retrospective increase in an ad-

visory guidelines range. Peugh v. United States, 569 U.S. 530

(2013). Yet contrary to this circuit’s expectations, see United

States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en banc) (declar-

ing the residual clause in the advisory guidelines void for

vagueness under Johnson), the Court held in Beckles that the

void-for-vagueness doctrine has no role to play in the advisory

guidelines and upheld the use of the residual clause in that

context, 137 S. Ct. 886.

In light of these developments and within one year of John-

son, Cross and Davis each sought resentencing under

28 U.S.C. § 2255. In Cross’s case, even though the judge ex-

pressed considerable sympathy for Cross’s vagueness argu-

Nos. 17-2282 & 17-2724 5

ment, he thought himself bound by this court’s refusal to en-

tertain vagueness challenges to the mandatory guidelines in

United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999),

and advisory guidelines in United States v. Tichenor, 683 F.3d

358, 364–65 (7th Cir. 2012). Notwithstanding the fact that we

had reversed course in Hurlburt, the judge “c[ould] not con-

clude with certainty that Hurlburt’s abrogation of Tichenor

[and Brierton] remain[ed effective] notwithstanding Beckles,”

in which the Supreme Court abrogated the specific holding of

Hurlburt. In the alternative, he held that the broad waiver of

appellate rights in Cross’s plea agreement could not be over-

come, even though the appeal waiver permitted motions

“based on … the sentencing court’s reliance on any constitu-

tionally impermissible factor.”

A different district judge handled Davis’s motion, but he

too concluded that relief was not in order. He found that Da-

vis’s motion was barred by the one-year limitations period in

28 U.S.C. § 2255(f). He acknowledged that section 2255(f)(3)

reopens the limitations period for an additional year from

“the date on which the right asserted was initially recognized

by the Supreme Court, if that right has been newly recognized

by the Supreme Court and made retroactively applicable to

cases on collateral review.” Id. § 2255(f)(3). He also recognized

that Davis filed his petition within a year of Johnson’s issu-

ance. Nonetheless, the judge believed that the Supreme

Court’s invalidation of the residual clause in the ACCA did

not carry over to the residual clause in the pre-Booker, manda-

tory version of the career-criminal sentencing guideline. In

the alternative, he held that Davis qualified as a career of-

fender under the elements clause of the guidelines. See

U.S.S.G. § 4B1.2(a)(1) (“crime of violence” also includes any

felony that “has as an element the use, attempted use, or

6 Nos. 17-2282 & 17-2724

threatened use of physical force”). On that basis, he con-

cluded that Davis was still a career offender notwithstanding

Johnson.

II

Because Cross’s and Davis’s appeals present legal, rather

than factual disputes, we consider the district courts’ conclu-

sions de novo. Delatorre v. United States, 847 F.3d 837, 843

(7th Cir. 2017). We begin by explaining why we reject the var-

ious procedural hurdles that the government has raised as a

bar to our reaching the merits of both these appeals.

A

Cross and Davis each filed his section 2255 motion within

one year of the Supreme Court’s decision in Johnson. The gov-

ernment nonetheless argues that their motions were un-

timely. Federal prisoners “claiming the right to be released

upon the ground that the sentence was imposed in violation

of the Constitution or laws of the United States” may ask the

sentencing court to “vacate, set aside or correct the sentence.”

28 U.S.C. § 2255(a). They must, however, file their motion

within a specified time. Id. § 2255(f). The only limitation pe-

riod potentially applicable to Cross’s and Davis’s cases runs

for one year from “the date on which the right asserted was

initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made ret-

roactively applicable to cases on collateral review.” Id.

§ 2255(f)(3). Dodd v. United States clarifies that this limitation

period begins when the Supreme Court declares a new right,

not when courts first acknowledge that right to be retroactive.

545 U.S. 353, 356–60 (2005). Thus, the timeliness of Cross’s and

Nos. 17-2282 & 17-2724 7

Davis’s motions hinges on whether the right they “assert[]

was initially recognized by” Johnson. 28 U.S.C. § 2255(f)(3).

The government argues that Johnson recognized the inva-

lidity of the residual clause only vis-à-vis the ACCA. Cross

and Davis, unlike Johnson, were sentenced under the residual

clause of the guidelines. The government concludes, there-

fore, that section 2255(f)(3) cannot help them, unless and until

the Supreme Court explicitly extends the logic of Johnson to

the pre-Booker mandatory guidelines. The Fourth and Sixth

Circuits have both accepted this view. Raybon v. United States,

867 F.3d 625, 629–31 (6th Cir. 2017); United States v. Brown, 868

F.3d 297, 301–04 (4th Cir. 2017). The First Circuit has rejected

it. Moore v. United States, 871 F.3d 72, 80–84 (1st Cir. 2017).

The government’s approach suffers from a fundamental

flaw. It improperly reads a merits analysis into the limitations

period. Section 2255(f)(3) runs from “the date on which the

right asserted was initially recognized by the Supreme Court.”

28 U.S.C. § 2255(f)(3) (emphasis added). It does not say that

the movant must ultimately prove that the right applies to his

situation; he need only claim the benefit of a right that the Su-

preme Court has recently recognized. An alternative reading

would require that we take the disfavored step of reading “as-

serted” out of the statute. See Duncan v. Walker, 533 U.S. 167,

174 (2001) (“It is our duty ‘to give effect, if possible, to every

clause and word of a statute.” (quoting United States v.

Menasche, 348 U.S. 528, 538–39 (1955)).

Here, Cross and Davis claim the right to be resentenced on

the ground that the vague (yet mandatory) residual clause un-

constitutionally fixed their terms of imprisonment. The right

not to be sentenced under a rule of law using this vague lan-

guage was recognized in Johnson. 135 S. Ct. at 2556–57 (“The

8 Nos. 17-2282 & 17-2724

prohibition of vagueness in criminal statutes … appl[ies] not

only to statutes defining elements of crimes, but also to stat-

utes fixing sentences … . [T]he indeterminacy of the … resid-

ual clause … denies due process of law.”); see also Beckles,

137 S. Ct. at 892 (“In Johnson, we applied the vagueness rule to

a statute fixing permissible sentences. The ACCA’s residual

clause … fixed—in an impermissibly vague way—a higher

range of sentences for certain defendants.”).

We are satisfied that the requirements of section 2255(f)(3)

are met. Under Johnson, a person has a right not to have his

sentence dictated by the unconstitutionally vague language of

the mandatory residual clause. Davis and Cross assert pre-

cisely that right. They complied with the limitations period of

section 2255(f)(3) by filing their motions within one year of

Johnson. See also Vitrano v. United States, 721 F.3d 802, 807–08

(7th Cir. 2013) (holding that the Supreme Court recognized

the general right not to be subject to an enhanced sentence

based on an understanding of the term “violent felony” that

conflicted with Begay v. United States, 553 U.S. 137, 148 (2008),

and thus holding motion under section 2255 untimely when

it was filed more than a year after Begay was decided).

B

The government next raised the ubiquitous specter of pro-

cedural default. Because neither Cross nor Davis challenged

the constitutionality of the residual clause at trial or on direct

appeal, the government argues they are barred from doing so

now.

As an initial matter, forfeiture and waiver can stymie an

appellee as well as an appellant. In Cross’s case, the govern-

ment waived its procedural default argument vis-à-vis Cross

Nos. 17-2282 & 17-2724 9

by failing to assert it adequately in the district court. Attempt-

ing to make the best of a bad showing, the government admits

that it raised procedural default only “succinctly” in a foot-

note. This is not enough, as we have held repeatedly. United

States v. White, 879 F.2d 1509, 1513 (7th Cir. 1989); see also Har-

mon v. Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013).

In general, habeas corpus petitioners may not raise any is-

sue that they might have presented on direct appeal. McCoy

v. United States, 815 F.3d 292, 295 (7th Cir. 2016). A petitioner

may, however, overcome procedural default by showing

cause for the default and actual prejudice, Bousley v. United

States, 523 U.S. 614, 622 (1998), or that “failure to consider the

defaulted claim will result in a fundamental miscarriage of

justice,” Johnson v. Loftus, 518 F.3d 453, 455–56 (7th Cir. 2008).

Cross and Davis have established their right to raise this claim

by way of the “cause and prejudice” avenue. We thus have no

need to discuss the question whether the “fundamental mis-

carriage of justice” approach might also support their mo-

tions.

We have no doubt that an extended prison term—which

was imposed on both men as a result of their designation as

career offenders—constitutes prejudice. See Glover v. United

States, 531 U.S. 198, 203 (2001). That narrows our inquiry to

whether they have shown cause for not objecting at trial. A

change in the law may constitute cause for a procedural de-

fault if it creates “a claim that ‘is so novel that its legal basis is

not reasonably available to counsel.’” Bousley, 523 U.S. at 622

(quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). In Reed, the Court

identified three nonexclusive situations in which an attorney

may lack a “reasonable basis” to raise a novel claim:

10 Nos. 17-2282 & 17-2724

First, a decision of this Court may explicitly overrule

one of our precedents. Second, a decision may “over-

tur[n] a longstanding and widespread practice to

which this Court has not spoken, but which a near-

unanimous body of lower court authority has ex-

pressly approved.” And, finally, a decision may “dis-

approv[e] a practice this Court arguably has sanc-

tioned in prior cases.”

Reed, 468 U.S. at 17 (quoting United States v. Johnson, 457 U.S.

537, 551 (1982)).

The government, relying on a footnote in Richardson v.

Lemke, 745 F.3d 258, 274 n.7 (7th Cir. 2014), suggests that Reed

is no longer good law. In Richardson, we assumed the validity

of Reed, even as we noted that in Prihoda v.

McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990), we had ques-

tioned Reed’s continuing force after Teague v. Lane, 489 U.S.

288 (1989). Later cases, however, put our concerns to rest. The

Supreme Court has since relied on Reed, see Bousley, 523 U.S.

at 622, as have we, e.g., McCoy v. United States, 815 F.3d at 295–

96 (7th Cir. 2016); McKinley v. Butler, 809 F.3d 908, 912 (7th Cir.

2016). Moreover, Prihoda did not hold that legal change as un-

derstood by Reed could never constitute cause; rather, it said

that legal change had to qualify as retroactive under Teague

for the petitioner to prevail. Prihoda, 910 F.2d at 1385–86. In

other words, we thought that legal change under Teague was

concentrically nested within legal change under Reed, render-

ing the latter superfluous once a claim qualified under Teague.

Id.

Cross and Davis could not reasonably have challenged the

guidelines residual clause when the district court sentenced

them in 1992 and 2000 respectively. On this point, we agree

Nos. 17-2282 & 17-2724 11

with our sister circuits that “no one—the government, the

judge, or the [defendant]—could reasonably have anticipated

Johnson.” United States v. Snyder, 871 F.3d 1122, 1127 (10th Cir.

2017) (quoting United States v. Redrick, 841 F.3d 478, 480

(D.C. Cir. 2016)). In fact, the Johnson Court expressly over-

ruled its own precedent, 135 S. Ct. 2563 (“Our contrary hold-

ings in James[, 550 U.S. 192,] and Sykes[, 131 S. Ct. 2267,] are

overruled.”), and so satisfied the first criterion of Reed. Alt-

hough Johnson involved the ACCA rather than the career-of-

fender guidelines, the language it evaluated was nearly iden-

tical to that in the career-offender guidelines. We

acknowledge that the cases overruled by Johnson were not de-

cided until 2007 and 2011—after the petitioners’ sentencing—

and thus could not themselves have influenced petitioners’

failure to object at trial. Nonetheless, when the Supreme

Court reverses course, the change generally indicates an ab-

rupt shift in law. The alternative would be a case of waffling,

where the overruled cases themselves rejected prior prece-

dent and the later case merely restored a status quo ante. That

is not our situation.

Johnson represented the type of abrupt shift with which

Reed was concerned. Until Johnson, the Supreme Court had

been engaged in a painful effort to make sense of the residual

clause. In James, it took the position that the validity of the re-

sidual clause was so clear that it could summarily reject Jus-

tice Scalia’s contrary view in a footnote. That footnote pro-

vided no argument, noted that the constitutional issue was

not even “pressed by James or his amici,” and took comfort

from the broad use of “[s]imilar formulations” throughout the

statute books. James, 550 U.S. at 210 n.6. Eight years later, the

Court made a U-turn and tossed out the ACCA residual

clause as unconstitutionally vague. We join the Tenth Circuit

12 Nos. 17-2282 & 17-2724

in excusing, under Reed’s first category, the petitioners’ failure

to challenge the residual clause prior to Johnson. Snyder,

871 F.3d at 1125, 1127.

The second and third scenarios identified by Reed present

even more compelling grounds to excuse Cross’s and Davis’s

procedural defaults. Johnson abrogated a substantial body of

circuit court precedent upholding the residual clause against

vagueness challenges. E.g., Brierton, 165 F.3d at 1138–39;

United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United

States v. Argo, 925 F.2d 1133, 1134–35 (9th Cir. 1991). Although

most of these decisions postdate Davis’s sentencing (though

not Cross’s), no court ever came close to striking down the

residual clause before 1992 or even suggested that it would

entertain such a challenge. Finally, the Supreme Court had

implicitly “sanctioned” the residual clause by interpreting it

as if it were determinate. Stinson v. United States, 508 U.S. 36

(1993); Taylor v. United States, 495 U.S. 575 (1990). Thus, the

parties’ inability to anticipate Johnson excuses their proce-

dural default.

III

A

The government has also raised particular objections in

each case. We begin with Davis’s appeal. The government

suggests that Davis’s predicate conviction for robbery, to

which the residual clause applied, also fell afoul of the ele-

ments clause of the guidelines. Thus, it says, regardless of the

validity of the residual clause, the district court properly clas-

sified and sentenced him as a career offender. That argument

may work in some cases, but it does not suffice here. Although

Nos. 17-2282 & 17-2724 13

both parties acknowledge that Davis’s robbery conviction sat-

isfied the elements clause as understood at the time of his sen-

tencing, Curtis Johnson v. United States, 559 U.S. 133 (2010), has

since held that an offense must entail a greater degree of force

to trigger that clause. (For the sake of clarity, we adopt the

parties’ practice of referring to Curtis Darnell Johnson v. United

States, 559 U.S. 133, as Curtis Johnson; we will continue to refer

to United States v. Samuel James Johnson, 135 S. Ct. 2551 (2015),

as Johnson.). Davis’s conviction cannot satisfy the heightened

requirement of Curtis Johnson.

Davis’s earlier conviction was for simple robbery. The

guidelines designate a felony as a crime of violence if it “has

as an element the use, attempted use, or threatened use of

physical force against the person of another.” U.S.S.G.

§ 4B1.2(1)(i). Interpreting the identical clause of the ACCA,

Curtis Johnson held that “the phrase ‘physical force’ means vi-

olent force—that is, force capable of causing physical pain or

injury to another person.” 559 U.S. 133, 140 (2010). It further

determined that Florida’s crime of simple battery did not

meet this threshold. Id. at 145. A Florida statute defined sim-

ple battery to include “[a]ctually and intentionally touch[ing]

or strik[ing] another person against the will of the other.” Id.

at 136 (quoting FLA. STAT. § 784.03(1)(a)(1)). In determining

whether a violation of the act triggered the elements clause,

the Court was “bound by the Florida Supreme Court’s inter-

pretation” that “the element of ‘actually and intentionally

touching’ … [was] satisfied by any intentional physical con-

tact, ‘no matter how slight,’” id. at 138 (quoting State v. Hearns,

961 So. 2d 211, 218 (Fla. 2007)), including “[t]he most ‘nominal

contact,’ such as a ‘ta[p] … on the shoulder without consent,’”

id. (quoting Hearns, 961 So. 2d at 219). Florida’s simple battery

14 Nos. 17-2282 & 17-2724

law thus criminalized a greater variety of conduct than the

force clause punished.

The same is true of Davis’s conviction for simple robbery

in Wisconsin. The relevant Wisconsin statute provides that

robbery can be committed in two ways:

(a) By using force against the person of the owner with

intent thereby to overcome his or her physical re-

sistance or physical power of resistance to the taking or

carrying away of the property; or

(b) By threatening the imminent use of force against

the person of the owner or of another who is present

with intent thereby to compel the owner to acquiesce

in the taking or carrying away of the property.

WIS. STAT. § 943.32(1). The Wisconsin Supreme Court has

expressly stated that the requisite force is “not to be

confounded with violence” and the “degree of force used by

the defendant is immaterial.” Walton v. State, 218 N.W.2d 309,

312 (Wis. 1974); see also Whitaker v. State, 265 N.W.2d 575, 579

(Wis. 1978). Walton and Whitaker thus parallel the

Florida Supreme Court’s decision in Hearns by defining force

to include nonviolent physical contact. Given this

authoritative interpretation of Wisconsin law, section

943.32(1) does not trigger the elements clause under

Curtis Johnson.

Curtis Johnson, of course, said nothing about the residual

clause. It spoke only to the elements clause. Curtis Johnson

thus provided Davis with no basis to move for resentencing

under section 2255. Contrary to the government’s assertion,

nothing had happened that would have initiated the relevant

limitation period under section 2255(f)(3). That provision has

Nos. 17-2282 & 17-2724 15

meaning only if read in conjunction with the right it limits—

a right that section 2255(a) creates. Section 2255(a) permits a

motion to set aside a sentence by a prisoner “claiming the

right to be released upon the ground that the sentence was

imposed in violation of the Constitution or laws of the United

States.” 28 U.S.C. § 2255(a).

Prior to Johnson, Davis had no basis to assert that his sen-

tence was illegal and thus he could not claim a right to be re-

leased. Curtis Johnson did not change that fact: all it did was to

eliminate the elements clause as a basis for Davis’s status,

which became entirely dependent on the residual clause.

There matters stayed until Johnson. Only then could Davis file

a nonfrivolous motion for relief. Section 2255(f)(3) applies a

limitation period of one year from “the date on which the

right asserted was initially recognized by the Supreme

Court.” 28 U.S.C. § 2255(f)(3). It was not until Johnson that the

Supreme Court recognized Davis’s asserted right “to be re-

leased” on account of an illegal or unconstitutional sentence.

28 U.S.C. § 2255(a) (emphasis added). Only by divorcing sec-

tion 2255(f)(3) from section 2255(a) could one say that Davis’s

right to petition for his release ended before it began.

In support of its proposed rule, the government offers only

an excerpt from a single case, Stanley v. United States, which

held that Curtis Johnson rather than Johnson triggered the lim-

itation period under section 2255(f)(3). 827 F.3d 562, 565

(7th Cir. 2016). But a closer look at Stanley demonstrates that

it does not help the government. In Stanley, Johnson did not

reopen the limitations period because, regardless of the con-

stitutionality of the residual clause, only the elements clause

had ever justified Stanley’s sentence. Stanley, 827 F.3d at 565.

The residual clause, and hence Johnson, was irrelevant. Id.

16 Nos. 17-2282 & 17-2724

Moreover, we were careful to note that the prisoner might

have relied on Johnson to trigger section 2255(f)(3) had he “de-

cided not to press an argument about the elements clause at

[his original] sentencing, or on appeal,” because “the only

consequence would have been to move a conviction from the

elements clause to the residual clause.” Id. That is precisely

the situation presented here.

B

Turning to Cross’s case, the government argues that a

waiver clause in his plea agreement bars him from bringing

his motion under section 2255. Plea agreements are contracts

through which defendants bargain away fundamental rights.

E.g., United States v. Ingram, 979 F.2d 1179, 1184 (7th Cir. 1992).

We therefore construe plea agreements according to the ordi-

nary principles of contract law, but with a heightened obliga-

tion both to secure for defendants the benefits of their negoti-

ation and to restrict only those rights they properly relin-

quished. E.g., id. (“Plea agreements, however, are ‘unique con-

tracts’ and the ordinary contract principles are supplemented

with a concern that the bargaining process not violate the de-

fendant’s right to fundamental fairness under the Due Process

Clause.”); United States v. Quintero, 618 F.3d 746, 751 (2010)

(“‘[W]e interpret the terms of the agreement according to the

parties’ reasonable expectations’ and construe any ambigui-

ties in the light most favorable to” the defendant), quoting

United States v. Woods, 581 F.3d 531, 534 (7th Cir. 2009)); see

also, e.g., United States v. Alcala, 678 F.3d 574, 577 (7th Cir.

2012). A valid appeal waiver must speak in “express and un-

ambiguous” terms. Quintero, 618 F.3d at 751; United States v.

Woolley, 123 F.3d 627, 632 (7th Cir. 1997) (quoting United States

v. Hendrickson, 22 F.3d 170, 174 (7th Cir. 1994). Contrary to the

Nos. 17-2282 & 17-2724 17

government’s assertions, we determine de novo whether a plea

agreement satisfies this requirement. Alcala, 678 F.3d at 577;

Ingram, 979 F.2d at 1184.

Cross’s waiver of his right to bring a section 2255 motion

was not unlimited. It did not include, for instance, a challenge

to “the court’s reliance on any constitutionally impermissible

factor.” Both the district court and government interpret that

carve-out to encompass only a narrow set of factors read into

all appeal waivers as a matter of constitutional law. Under this

exception, even a blanket appeal waiver cannot foreclose a de-

fendant’s right to challenge the sentencing court’s use of a

constitutionally impermissible, identity-based factor such as

race or gender. E.g., Jones v. United States, 167 F.3d 1142, 1144

(7th Cir. 1999). According to the government, the written

carve-out in Cross’s agreement merely replicates this consti-

tutional baseline and thus does not cover Cross’s motion.

Cross reads the carve-out to include any unconstitutional

input in sentencing. This is a reasonable interpretation. Even

if we thought the government’s reading were also reasonable,

we would be left with an ambiguous waiver that should not

apply to Cross’s section 2255 motion. The language of the plea

agreement does not limit the term “constitutionally imper-

missible factor” to the exceptions that we must read into all

appeal waivers. A “factor,” in its relevant sense, is simply

“[a]n element or constituent, esp[ecially] one which contrib-

utes to or influences a process or result.” Factor, OXFORD

ENGLISH DICTIONARY (3d ed. Sept. 2014),

http://www.oed.com/view/Entry/67512?rskey=tf2pMV&re-

sult=1&isAdvanced=false#eid. Courts routinely use the word

factor to refer to mandatory-guidelines inputs. E.g., United

States v. Booker, 543 U.S. at 241–42 (noting that the guidelines

18 Nos. 17-2282 & 17-2724

set sentencing ranges “based on various factors related to the

offense and the offender”); Koon v. United States, 518 U.S. 81,

92 (1996). The guidelines do the same, including with respect

to the career-criminal enhancement. E.g., U.S.S.G. § 1B1.3.

Cross’s designation as a career offender on the basis of the re-

sidual clause was a crucial element of the sentencing court’s

guidelines calculation. It contributed directly to his resulting

sentence and was thus a factor in his sentence.

We are satisfied that the exception in Cross’s waiver for

any “constitutionally impermissible factor” in sentencing co-

vers the alleged illicit use of the residual clause to calculate

his guidelines range. Cross thus retained the right to file the

present section 2255 motion.

IV

Having dispensed with these procedural hurdles, we are

at last ready to resolve the central issue on appeal: whether,

under Johnson, relief is available to Davis and Cross. Johnson

establishes that the residual clause of the ACCA is unconsti-

tutionally vague. 135 S. Ct. at 2557. Therefore, if a) the residual

clause of the guidelines suffers from the same indeterminacy

and b) the constitutional requirement of clarity applies to the

mandatory guidelines, then we must declare that clause void

as well.

A

Johnson homed in on a confluence of two factors that de-

prived the residual clause of the ACCA of sufficiently definite

meaning. 135 S. Ct. at 2557–58; see also Sessions v. Dimaya,

138 S. Ct. 1204, 1213 (2018). First, the ACCA clause required

judges to assess the risk of injury associated with a defend-

ant’s prior convictions using a categorical approach. Johnson,

Nos. 17-2282 & 17-2724 19

135 S. Ct. at 2557. In other words, “[i]t tie[d] the judicial as-

sessment of risk to a judicially imagined ‘ordinary case’ of a

crime, not to real-world facts or statutory elements.” Id. Sec-

ond, it required judges to weigh the apparent danger posed

by those idealized offenses against the nebulous metric of “se-

rious potential risk.” Id. at 2557. The “combin[ed] indetermi-

nacy” concerning how much risk the crimes of conviction

posed and the degree of risk required of violent felonies pro-

duced unacceptable “unpredictability and arbitrariness.” Id.

at 2558.

These same two faults inhere in the residual clause of the

guidelines. It hardly could be otherwise because the two

clauses are materially identical. The mandatory minimum

provisions of the ACCA apply to defendants who “ha[ve]

three previous convictions … for a violent felony or a serious

drug offense.” 18 U.S.C. § 924(e)(1). The statute defines “vio-

lent felony” as one that:

(i) has as an element the use, attempted use, or

threatened use of physical force against the per-

son of another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that

presents a serious potential risk of physical in-

jury to another.

18 U.S.C. § 924(e)(2)(B). Instead of referring to a “violent fel-

ony,” the guidelines speak of a defendant’s “ha[ving] at least

two prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1. Its definition

of a “crime of violence,” however, is identical to that of “vio-

20 Nos. 17-2282 & 17-2724

lent felony” in the ACCA. A “crime of violence” is “any of-

fense under federal or state law, punishable by imprisonment

for a term exceeding one year that—

(i) has as an element the use, attempted use, or

threatened use of physical force against the per-

son of another, or

(ii) is burglary of a dwelling, arson, or extortion, in-

volves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2 (1992) (emphasis added); see also U.S.S.G.

§ 4B1.2 (2000) (replacing roman with arabic numerals and

adding a comma before “that” in the introductory clause). The

only linguistic difference between the two is italicized. In the

enumerated crimes section, burglary under the guidelines is

limited to burglary of a dwelling. Otherwise, the two defini-

tions are identical, as the Supreme Court has acknowledged.

See Beckles, 137 S. Ct. at 890 (describing the residual clauses as

“identically worded”). (Nitpickers may also notice that

ACCA and 1992 edition of the guidelines use roman numer-

als, while the 2000 edition adopted arabic numerals. We can-

not fathom why that should matter.)

Johnson confirmed that the categorical approach applies to

the residual clause of the ACCA. 135 S. Ct. at 2561–62; see also

id. at 2579–80 (Alito, J., dissenting). The majority gave three

reasons for doing so. All three of those reasons apply with

equal force to the guidelines. First, in the face of the Court’s

consistent application of the categorical approach to the resid-

ual clause, the government did not, in Johnson, ask it to aban-

don that approach. Id. at 2562 (majority opinion). We too have

Nos. 17-2282 & 17-2724 21

taken the position that the categorical approach applies to the

guidelines without eliciting any objection from the govern-

ment (either in this case or others). E.g., United States v. Woods,

576 F.3d 400, 403–04 (7th Cir. 2009). Second, the ACCA “refers

to ‘a person who … has three previous convictions’ for—not

a person who has committed—three previous violent felonies

or drug offenses.” Johnson, 135 S. Ct. at 2562 (quoting in its

entirety from Taylor v. United States, 495 U.S. 575, 600 (1990)).

Johnson held that “[t]his emphasis on convictions indicates

that ‘Congress intended the sentencing court to look only to

the fact that the defendant had been convicted of crimes fall-

ing within certain categories, and not to the facts underlying

the prior convictions.’” Id. (quoting Taylor, 495 U.S. at 600

(1990)). Likewise, the guidelines refer to a defendant who

“has at least two prior felony convictions of either a crime of

violence or a controlled substance offense,” rather than a per-

son who has committed two prior felonies. U.S.S.G. § 4B1.1.

Third, the Court noted the “utter impracticability of requiring

a sentencing court to reconstruct, long after the original con-

viction, the conduct underlying that conviction.” Johnson, 135

S. Ct. at 2551. That difficulty is just as acute under the guide-

lines as under the ACCA.

The additional words, “of a dwelling,” in the guidelines’

enumerated clause do not focus the meaning of the phrase

“serious potential risk” in the residual clause that follows. It

might once have been argued that narrowing the enumerated

burglary offense allows a more precise analogy to be drawn

to the degree of harm with which the residual clause is con-

cerned. But the Supreme Court closed the door on this noscitur

a sociis style argument in Taylor. Taylor faced the converse

problem of trying to determine the meaning of “burglary” in

the enumerated clause of the ACCA, and in particular

22 Nos. 17-2282 & 17-2724

whether to read in the common-law requirement that a bur-

glar must target a dwelling. 495 U.S. at 593–96. Although Tay-

lor entertained the converse notion that the requirement of a

“serious potential risk” of injury in the residual clause might

inform the meaning of the enumerated offenses, the Court re-

frained from taking that approach:

It could be argued, of course, that common-law bur-

glary, by and large, involves a greater “potential risk

of physical injury to another.” § 924(e)(2)(B)(ii). But,

even assuming that Congress intended to restrict the

predicate offense to some especially dangerous sub-

class of burglaries, restricting it to common-law bur-

glary would not be a rational way of doing so. The

common-law definition does not require that the of-

fender be armed or that the dwelling be occupied at the

time of the crime. An armed burglary of an occupied

commercial building, in the daytime, would seem to

pose a far greater risk of harm to persons than an un-

armed nocturnal breaking and entering of an unoccu-

pied house. It seems unlikely that Congress would

have considered the latter, but not the former, to be a

“violent felony” counting towards a sentence enhance-

ment.

Id. at 594. Thus, limiting the enumerated offense to burglaries

of dwellings sheds no light on the degree of risk required in

the residual clause.

The Supreme Court’s recent decision in Dimaya reconfirms

our view that the residual clause of the guidelines shares the

weaknesses that Johnson identified in the ACCA. Dimaya con-

cerned an analogous residual clause in 18 U.S.C. § 16, as in-

corporated into the Immigration and Nationality Act.

Nos. 17-2282 & 17-2724 23

138 S. Ct. at 1210–11. The INA renders removable any “alien

who is convicted of an aggravated felony at any time after ad-

mission,” 8 U.S.C. § 1227(a)(2)(A)(iii), and precludes the can-

cellation of his removal and adjustment of his status by the

Attorney General, id. § 1229b(a)(3), (b)(1)(C). The statute de-

fines aggravated felony to include a “crime of violence … for

which the term of imprisonment [is] at least one year.” Id.

§ 1101(a)(43)(F). Section 16, in turn, contains the following

definition of “crime of violence”:

(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against the per-

son or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be used

in the course of committing the offense.

18 U.S.C. § 16.

The Court turned to Johnson for guidance in how to read

section 16. It found no principled difference between the two

statutes: Johnson, it said, “is a straightforward decision, with

equally straightforward application here.” Dimaya, 138 S. Ct.

at 1213. Section 16’s residual clause suffered from indetermi-

nacy in “just the same way” as the ACCA’s. Id. at 1213. Both

required a categorical approach to the predicate offenses, and

both vaguely called for a “not-well-specified-yet-sufficiently-

large degree of risk.” Id. at 1216. In his concurrence, Justice

Gorsuch highlighted the key parallels between the ACCA and

statutory scheme at issue in Dimaya from which the Court’s

conclusion flowed:

24 Nos. 17-2282 & 17-2724

Just like the statute in Johnson, the statute here instructs

courts to impose special penalties on individuals pre-

viously “convicted of” a “crime of violence.” Just like

the statute in Johnson, the statute here fails to specify

which crimes qualify for that label. Instead, and again

like the statute in Johnson, the statute here seems to re-

quire a judge to guess about the ordinary case of the

crime and conviction and then guess whether a “sub-

stantial risk” of “physical force” attends its commis-

sion. Johnson held that a law that asks so much of courts

while offering them so little by way of guidance is un-

constitutionally vague. And I do not see how we might

reach a different judgment here.

Id. at 1231 (Gorsuch, J., concurring). As we already have high-

lighted, each of those three hallmarks is shared by the guide-

lines. The guidelines speak of a defendant “convicted of” a

crime of violence, do not specify the offenses belonging to the

category, and leave judges to guess how much risk offenses

must entail. Thus, to borrow Justice Gorsuch’s phrase, we “do

not see how we might reach a different judgment here.”

In fact, the textual differences between the ACCA and

guidelines pale in comparison to the differences between the

ACCA and section 16: section 16 lacks an enumerated clause;

its residual clause requires “physical force” rather than

“physical injury”; it requires a “substantial risk” rather than a

“serious potential risk”; and it additionally requires that the

offense involve that risk “by its nature” and that the risk arise

“in the course of committing the offense.” Compare 18 U.S.C.

§ 16(b) with 18 U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G.

§ 4B1.2(a)(i). In dissent, Chief Justice Roberts sought to distin-

Nos. 17-2282 & 17-2724 25

guish Johnson on the basis of some of these differences, see Di-

maya, 138 S. Ct. at 1235–37 (Roberts, C.J., dissenting), but the

majority of his colleagues were unpersuaded, see id. at 1218

(majority opinion). Interestingly, the Dimaya majority consid-

ered whether the complete absence of an enumerated-offense

clause in section 16 affected the indeterminacy of its residual

clause. Id. at 1221. Resolving that question in the negative, the

Court observed that the enumerated crimes of the ACCA had

failed to establish a baseline degree of risk because they “were

themselves too varied to provide such assistance.” Id. (“Try-

ing to reconcile them with each other, and then compare them

to whatever unlisted crime was at issue, drove many a judge

a little batty.”). The guidelines did not reduce that diversity

by substituting burglary of a dwelling in a list that includes ex-

tortion and use of explosives.

Although several justices in Dimaya did question the vital-

ity of the categorical approach, their opinions do not undercut

our interpretation of the guidelines for two reasons. First,

only a minority of the justices cast aspersions on the categori-

cal approach. Justice Thomas, joined in part by Justices Ken-

nedy and Alito, did so in dissent. Id. at 1250–59 (Thomas, J.,

dissenting). Justice Gorsuch’s concurrence reserved judgment

on the issue for the future. Id. at 1232–33 (Gorsuch, J., concur-

ring). Until that time, Justice Gorsuch assumed that the cate-

gorical approach did apply because, in part, the Supreme

Court’s “precedent seemingly requires this approach.” Id. at

1232. If that was enough to persuade the Justice, it is more

than enough for us. As a lower court, we are required to fol-

low the Court’s precedents until the Court itself tells us oth-

erwise. Unless and until a majority of the Court overrules the

26 Nos. 17-2282 & 17-2724

majority opinions in Johnson and Dimaya, they continue to

bind us. 1

1 The Supreme Court recently vacated our judgments in United States

v. Jenkins and United States v. Jackson, remanding those cases to us for re-

consideration in light of Dimaya. United States v. Jenkins, No. 17-97, 2018

WL 2186183 (U.S. May 14, 2018); United States v. Jackson, No. 17-651, 2018

WL 2186185 (U.S. May 14, 2018). Those remands do not dictate our dispo-

sition of the present appeals. Our now-vacated opinions in Jenkins and

Jackson had held that the residual clause of 18 U.S.C. § 924(c)(3)(B) was

unconstitutionally vague, and in so doing had assumed that the clause re-

quired use of the categorical approach. United States v. Jackson, 865 F.3d

946, 952, 956 (7th Cir. 2017); see also United States v. Jenkins, 849 F.3d 390,

394 (7th Cir. 2017). The government had asked the Supreme Court to re-

turn those cases to us because Dimaya “suggest[ed] that a court could, con-

sistent with the canon of constitutional avoidance, construe Section

924(c)(3)(B) to permit application of a non-categorical approach that con-

siders the defendant’s conduct.” Supplemental Brief for the United States

at 5, Jenkins & Jackson, 2018 WL 2186183 & 2018 WL 2186185 (U.S. Apr. 17,

2018) (Nos. 17-97 & 17-651). The government was careful to distance sec-

tion 924(c)(3)(B) from one of the prime justifications for applying the cat-

egorical approach to the residual clause of section 924(e) of the ACCA,

section 16(b), and the guidelines:

A non-categorical approach … may make particular sense in the

context of Section 924(c)(3)(B). Unlike Section 16(b) of the ACCA’s

residual clause, Section 924(c)(3)(B)’s definition of a “crime of vi-

olence” is never applied to a prior conviction, the specific facts of

which may not be before the court. Section 924(c) instead employs

the term “crime of violence” to describe the conduct involved in

the present offense with which the defendant is charged.

Id. at 3–4. We will reserve for our reconsideration of Jenkins and Jackson

whether that difference is enough to justify jettisoning the categorical ap-

proach for section 924(c)(3)(B). For the moment, it is enough for us to note

that the guidelines, like sections 924(e) and 16(b), require courts to con-

sider the defendant’s prior offenses.

Nos. 17-2282 & 17-2724 27

Second, with the exception of Justice Thomas, no justice

swore off the categorical approach for the residual clause of

the ACCA. Id. at 1253–54 (Thomas, J., dissenting). Rather, in

the portion of his dissent joined by Justices Kennedy and

Alito, Justice Thomas advocated abandoning that approach

only when applying section 16. Id. at 1254–59 (Thomas, J., dis-

senting). In its place, he advocated an “underlying-facts ap-

proach”—i.e., analyzing the crime as committed. In Justice

Thomas’s opinion, “both interpretations [were] linguistically

possible,” id. at 1255; however, he saw the diction and context

of section 16 and, in particular, the doctrine of constitutional

avoidance as counseling strongly in favor of the underlying-

facts approach, id. at 1255–56.

In developing this argument, Justice Thomas was careful

to distance section 16 from the factors that had justified adopt-

ing the categorical approach for the ACCA—factors that ap-

ply with equal force to the guidelines. First, adopting the un-

derlying-facts approach for the ACCA would have raised

Sixth Amendment concerns. Although those same concerns

apply to the mandatory guidelines, see Booker, 543 U.S. 220, a

jury right does not attach to immigration cases, Dimaya,

138 S. Ct. at 1256. When section 16 is applied to criminal cases,

Justice Thomas suggested that the defendant’s prior conduct

should simply be indicted and proven at trial. Regardless of

the merits of that suggestion (which Johnson rejected for the

ACCA, see 135 S. Ct at 2580 (Alito, J., dissenting)), that for-

ward-looking strategy cannot be applied to the now-con-

cluded era of mandatory guidelines. Justice Thomas also in-

voked context in support of his view. He noted that in the

unique setting of the INA the Supreme Court had required an

underlying-conduct approach to identify other aggravated

felonies. Dimaya, 138 S. Ct. at 1257. Finally, Justice Thomas

28 Nos. 17-2282 & 17-2724

thought that the practical concerns that had motivated John-

son, and which apply with equal force to the mandatory

guidelines, did not obtain in the context of immigration pro-

ceedings. Immigration judges, rather than courts, would have

to shoulder the burden of identifying past conduct. Justice

Thomas thought that “those judges [were] already accus-

tomed to finding facts about the conduct underlying an alien's

prior convictions”—a task already imposed by other aspects

of the INA—and there was no evidence that they had strug-

gled to do so. Id. at 1257–58. The same cannot be said of

judges’ efforts to apply the guidelines residual clause.

B

The penultimate question before us is whether a vague-

ness challenge directed against the guidelines is possible for

defendants such as Cross and Davis whose sentences were

handed down before Booker, when the guidelines were man-

datory. If so, then they have a right to be resentenced because

the residual clause that underlay both of their sentences suf-

fered from the same vagueness that doomed its counterpart

in the ACCA.

The answer to that question depends in the first instance

on the breadth of the Supreme Court’s holding in Beckles. In

the context of a sentence imposed after the guidelines became

discretionary, Beckles upheld the residual clause of the guide-

lines against a Johnson-inspired vagueness challenge.

137 S. Ct. at 890. The Supreme Court took care, however, to

specify that it was addressing only the post-Booker, advisory

version of the guidelines. It held “that the advisory Guidelines

are not subject to vagueness challenges under the Due Process

Clause,” id. at 890 (emphasis added), and referred repeatedly

to the “advisory Guidelines” throughout the opinion, id. at

Nos. 17-2282 & 17-2724 29

890, 892, 894, 895, 896, 897. Indeed, it expressly distinguished

Johnson on the ground that Johnson dealt with a binding resid-

ual clause:

Unlike the ACCA … the advisory Guidelines do not

fix the permissible range of sentences. To the contrary,

they merely guide the exercise of a court’s discretion

in choosing an appropriate sentence within the statu-

tory range. Accordingly, the Guidelines are not sub-

ject to a vagueness challenge under the Due Process

Clause. The residual clause in § 4B1.2(a)(2) therefore

is not void for vagueness.

Id. at 892. We take the Court at its word: the Beckles opinion

applies only to the guidelines as they have been since 2005,

not to the pre-Booker mandatory regime.

Even more importantly, Beckles’s logic for declining to ap-

ply the vagueness doctrine rests entirely on the advisory qual-

ity of the current guidelines. The vagueness doctrine ensures

that a “law regulating private conduct by fixing permissible

sentences provides notice and avoids arbitrary enforcement

by clearly specifying the range of penalties available.” Id. at

895. Those purposes distinguish vagueness from the ex post

facto clause, which Peugh tells us does apply to the advisory

guidelines. The ex post facto clause bars a retroactive law if it

“creates a significant risk of a higher sentence.” 137 S. Ct. at

895 (quoting Peugh, 569 U.S. at 550). Lengthening advisory

guidelines terms increases the likelihood of prolonged sen-

tences—thereby raising ex post facto concerns—because the

advisory guidelines exert a powerful anchoring influence on

judges. Id. at 894; Peugh, 569 U.S. at 541–42. In contrast, advi-

30 Nos. 17-2282 & 17-2724

sory guidelines do “not implicate the twin concerns underly-

ing vagueness doctrine—providing notice and preventing ar-

bitrary enforcement,” Beckles, 137 S. Ct. at 894:

[E]ven perfectly clear Guidelines could not provide no-

tice to a person who seeks to regulate his conduct so as

to avoid particular penalties within the statutory

range. That is because even if a person behaves so as to

avoid an enhanced sentence … the sentencing court re-

tains discretion to impose the enhanced sentence … .

The advisory Guidelines also do not implicate … arbi-

trary enforcement … . An unconstitutionally vague

law invites arbitrary enforcement … if it ‘leaves judges

and jurors free to decide, without any legally fixed

standards, what is prohibited and what is not in each

particular case’ or permits them to prescribe the sen-

tences or sentencing range available. The Guidelines,

however, do not regulate the public by prohibiting any

conduct or by ‘establishing minimum and maximum

penalties for [any] crime.’ Rather, the Guidelines ad-

vise sentencing courts how to exercise their discretion

within the bounds established by Congress.

Id. at 894–95 (quoting respectively Giaccio v. Pennsylvania,

382 U.S. 399, 402–03 (1996) and Mistretta v. United States, 488

U.S. 361, 396 (1989)) (alterations in original) (citations omit-

ted). Thus, the vagueness doctrine does not prohibit including

the residual clause in the advisory guidelines.

The mandatory guidelines did, however, implicate the con-

cerns of the vagueness doctrine. Beckles reaffirmed that the

void-for-vagueness doctrine applies to “laws that fix the per-

missible sentences for criminal offenses.” 137 S. Ct. at 892. As

Nos. 17-2282 & 17-2724 31

Booker described, the mandatory guidelines did just that. They

fixed sentencing ranges from a constitutional perspective:

The [mandatory] Guidelines … are not advisory;

they are mandatory and binding on all judges. While

subsection (a) of [18 U.S.C.] § 3553 of the sentencing

statute lists the Sentencing Guidelines as one factor to

be considered in imposing a sentence, subsection (b)

directs that the court “shall impose a sentence of the

kind, and within the range” established by the Guide-

lines, subject to departures in specific, limited cases. …

The availability of a departure in specified circum-

stances does not avoid the constitutional issue … . The

Guidelines permit departures from the prescribed sen-

tencing range in cases in which the judge “finds that

there exists an aggravating or mitigating circumstance

of a kind, or to a degree, not adequately taken into con-

sideration by the Sentencing Commission in formulat-

ing the guidelines that should result in a sentence dif-

ferent from that described.” 18 U.S.C. § 3553(b)(1)

(2000 ed., Supp. IV). At first glance, one might believe

that the ability of a district judge to depart from the

Guidelines means that she is bound only by the statu-

tory maximum. … Importantly, however, departures

are not available in every case, and in fact are unavail-

able in most. In most cases, as a matter of law, the Com-

mission will have adequately taken all relevant factors

into account, and no departure will be legally permis-

sible. In those instances, the judge is bound to impose

a sentence within the Guidelines range. …

Booker’s case illustrates the mandatory nature of

the Guidelines. … Under these facts, the Guidelines

32 Nos. 17-2282 & 17-2724

specified an offense level of 32 … . Booker’s is a run-of-

the-mill drug case, and does not present any factors

that were inadequately considered by the Commission.

The sentencing judge would therefore have been re-

versed had he not imposed a sentence within the level

32 Guidelines range.

Booker, 543 U.S. at 233–34 (emphasis in original). In sum, as

the Supreme Court understood in Booker, the residual clause

of the mandatory guidelines did not merely guide judges’ dis-

cretion; rather, it mandated a specific sentencing range and

permitted deviation only on narrow, statutorily fixed bases.

The Court thus addressed, and rejected, the argument that

the possibility of departures from the mandatory guideline

range was enough to make it advisory. We might add that

even statutory minimum sentences are not exempt from de-

partures, if, for instance, the government files a substantial-

assistance motion, 18 U.S.C. § 3553(e), or the court finds that

the defendant is entitled to the statutory safety valve, id.

§ 3553(f). Yet, as we know from Johnson’s treatment of the

ACCA, statutory minima must comply with the prohibition

of vague laws. The existence of some play in the joints is not

enough to change the character of either statutory sentencing

limitations or the pre-Booker guidelines from mandatory to

advisory.

We conclude that the mandatory guidelines’ incorporation

of the vague residual clause impeded a person’s efforts to

“regulate his conduct so as to avoid particular penalties” and

left it to the judge to “prescribe the … sentencing range avail-

able.” Beckles, 137 S. Ct. at 894–95. Therefore, unlike the advi-

sory guidelines, the mandatory guidelines implicated the

“twin concerns” of the vagueness doctrine. Id. at 894. The

Nos. 17-2282 & 17-2724 33

mandatory guidelines are thus subject to attack on vagueness

grounds.

C

The last question is whether Johnson applies retroactively

to the residual clause of the career-offender guideline. A

newly announced constitutional rule applies retroactively if it

is either a substantive rule or a “watershed rule[] of criminal

procedure.” Welch, 136 S. Ct. at 1264 (quoting Saffle v. Parks,

494 U.S. 484, 495 (1990)). A substantive rule “alters the range

of conduct or the class of persons that the law punishes,”

whereas procedural rules “regulate only the manner of deter-

mining the defendant’s culpability.” Id. at 1264–65 (quoting

Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). In Welch, the

Supreme Court held that Johnson qualifies as a substantive

rule, because it narrowed the class to whom the ACCA’s man-

datory minimum applied, id. at 1265:

Before Johnson, the [ACCA] applied to any person who

possessed a firearm after three violent felony convic-

tions, even if one or more of those convictions fell un-

der only the residual clause. An offender in that situa-

tion faced 15 years to life in prison. After Johnson, the

same person engaging in the same conduct is no longer

subject to the Act and faces at most 10 years in prison.

The residual clause is invalid under Johnson, so it can

no longer mandate or authorize any sentence. Johnson

establishes, in other words, that “even the use of im-

peccable factfinding procedures could not legitimate”

a sentence based on that clause. It follows that Johnson

is a substantive decision.

34 Nos. 17-2282 & 17-2724

Id. (quoting United States v. U.S. Coin & Currency, 401 U.S. 715,

724 (1971)).

The same logic justifies treating Johnson as substantive,

and therefore retroactive, when applied to the mandatory

guidelines. Just as excising the residual clause from the ACCA

changed the punishment associated with illegally carrying a

firearm, striking down the residual clause in the mandatory

guidelines changes the sentencing range associated with

Cross’s and Davis’s bank robberies. At the same time, it nar-

rows the set of defendants punishable as career offenders for

the commission of any number of crimes. In other words,

Johnson has effectively changed Davis’s and Cross’s substan-

tive crime for sentencing purposes from bank robbery by a

career offender to simple bank robbery. Elimination of the re-

sidual clause of section 4B1.2(a)(2) (in its mandatory guise)

thus “alters the range of conduct or the class of persons that

the law punishes” and qualifies as a retroactive, substantive

rule. Welch, 136 S. Ct. at 1264 (quoting Schriro, 542 U.S. at 353).

V

We hold that both Cross and Davis are entitled to relief

from their career-offender classifications, based on the Su-

preme Court’s decision in Johnson. We thus REVERSE the dis-

trict court and REMAND these cases with instructions to grant

Cross’s and Davis’s section 2255 motions and to resentence

them in accordance with this opinion.