United States v. Antonio Blackstone

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-55023

Plaintiff-Appellee,

D.C. Nos.

v. 2:16-cv-03872-CAS

2:99-cr-00257-CAS-4

ANTONIO DEAN BLACKSTONE,

AKA Lil Sule,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted April 11, 2018

Pasadena, California

Filed September 12, 2018

Before: Mary M. Schroeder, Richard R. Clifton,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Clifton

2 UNITED STATES V. BLACKSTONE

SUMMARY*

28 U.S.C. § 2255

The panel affirmed the district court’s denial of Antonio

Dean Blackstone’s motion pursuant to 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence, which was imposed

in 2000 under the then-mandatory Sentencing Guidelines,

based in part on the court’s conclusion that he had previously

been convicted of crimes of violence.

Blackstone argued that his sentence must be vacated

because, after Johnson v. United States, 135 S. Ct. 2551

(2015), the relevant Sentencing Guidelines provision,

U.S.S.G. § 4B1.2, is unconstitutionally vague and, as a result,

his prior California convictions are no longer treated as

crimes of violence.

The panel held that Blackstone’s § 2255 motion is

untimely under 28 U.S.C. § 2255(f)(3), which authorizes

filing within one year of “the date on which the right asserted

was initially recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” The

panel held that the Supreme Court has left open the question

of Johnson’s application to the mandatory Guidelines, and

thus has not yet recognized the right Blackstone asserts. The

panel wrote that if the Supreme Court extends Johnson to a

sentence imposed at a time when the Sentencing Guidelines

were mandatory, then Blackstone may be able to bring a

timely § 2255 motion, but as of now, his motion is untimely.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BLACKSTONE 3

The panel applied the same reasoning to Blackstone’s

uncertified argument that Hobbs Act robbery is not a “crime

of violence” for purposes of 18 U.S.C. § 924(c), writing that

the Supreme Court has not recognized that § 924(c)’s residual

clause is void for vagueness. The panel did not reach the

merits. Noting that the Seventh Circuit would conclude that

a § 2255 motion based on Johnson would be timely – a

conclusion with which the panel disagrees but does not

consider unreasonable – the panel granted Blackstone’s

request to expand the certificate of appealability to include

the § 924(c) issue, but denied the challenge as untimely.

COUNSEL

Alyssa Bell (argued), Deputy Federal Public Defender; Hilary

Potashner, Federal Public Defender; Office of the Federal

Public Defender, Los Angeles, California; for Defendant-

Appellant.

L. Ashley Aull (argued); Bryan Y. Yang, Assistant United

States Attorney; Lawrence S. Middleton, Chief, Criminal

Division; Sandra R. Brown, United States Attorney; United

States Attorney’s Office, Los Angeles, California; for

Plaintiff-Appellee.

4 UNITED STATES V. BLACKSTONE

OPINION

CLIFTON, Circuit Judge:

Antonio Dean Blackstone appeals the district court’s

denial of his motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255, the version of habeas

corpus review that applies to federal sentences. In May 2000,

Blackstone was sentenced to 290 months of incarceration

under the then-mandatory Sentencing Guidelines, based in

part on the court’s conclusion that he had previously been

convicted of crimes of violence. Blackstone argues that his

sentence must be vacated because, after Johnson v. United

States, 135 S. Ct. 2551 (2015), the relevant Sentencing

Guideline provision, U.S.S.G. § 4B1.2, is unconstitutionally

vague and, as a result, his prior California convictions are no

longer treated as crimes of violence under the federal

sentencing laws.

Normally, a § 2255 motion must be filed within a year of

the date the conviction became final, a period that expired

years ago for Blackstone. See 28 U.S.C. § 2255(f)(1). The

statute also authorizes filing within one year of “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). Blackstone argues that

the Supreme Court recognized a new right in Johnson, a right

that was made retroactively applicable in Welch v. United

States, 136 S. Ct. 1257 (2016). We conclude, however, that

the Supreme Court has not yet recognized the right asserted

by Blackstone. The Supreme Court has not held that the

mandatory Sentencing Guidelines are subject to this

vagueness challenge. As a result, Blackstone’s current

UNITED STATES V. BLACKSTONE 5

motion is not timely under the statute. In reaching that

conclusion, we agree with similar rulings by three other

circuit courts that have considered this issue. We deny a

similar challenge by Blackstone to a conviction and sentence

under 18 U.S.C. § 924(c) for use of a firearm during a crime

of violence because the Supreme Court has not recognized

that right, either. We affirm the denial of Blackstone’s

motion.

I. Background

On August 19, 1999, a jury found Antonio Dean

Blackstone guilty of multiple offenses: conspiring to commit

Hobbs Act robbery in violation of 18 U.S.C. § 1951;

committing Hobbs Act robbery; and using and carrying a

firearm during a “crime of violence,” in violation of

18 U.S.C. § 924(c). On May 8, 2000, the district court

sentenced Blackstone to a total of 290 months of

incarceration. That total consisted of two parts: 230 months

for the two Hobbs Act convictions (specifically, two

sentences each of 230 months to be served concurrently), and

sixty months for the 18 U.S.C. § 924(c) conviction, to be

served consecutively to the Hobbs Act sentences. When

Blackstone was sentenced, the Sentencing Guidelines were

mandatory, not advisory. See United States v. Booker,

543 U.S. 220, 245 (2005) (holding that prior mandatory

application of the Sentencing Guidelines had violated the

Sixth Amendment and that the Guidelines were “effectively

advisory” going forward).

In calculating the sentence, the district court concluded

that Blackstone qualified as a career offender under U.S.S.G.

§ 4B1.1, also known as the career offender Guideline,

because he had previously been convicted of two prior felony

6 UNITED STATES V. BLACKSTONE

crimes of violence: second-degree robbery, in violation of

California Penal Code § 211; and voluntary manslaughter, in

violation of California Penal Code § 192(a). As a result,

Blackstone’s Guideline range for the two Hobbs Act

convictions increased from 70 to 87 months to 210 to

240 months. The district court imposed a sentence of

230 months for those counts. The firearms conviction carried

a mandatory consecutive sentence of 60 months, 18 U.S.C.

§ 924(c)(1), bringing the total to 290 months.

Blackstone appealed his sentence, but this court affirmed.

United States v. Gaines, 8 F. App’x 635 (9th Cir. 2001).

Blackstone’s petition for a writ of certiorari was denied.

Blackstone v. United States, 534 U.S. 910 (2001). Thereafter,

Blackstone filed a 28 U.S.C. § 2255 motion and a 28 U.S.C.

§ 2241 petition, both of which were denied and neither of

which raised the issues presented in this appeal.

Within one year after the Supreme Court issued its

opinion in Johnson, Blackstone filed an application with this

court for authorization to file a second or successive motion

to vacate under § 2255. That application was granted, and

Blackstone filed his motion to vacate with the district court.

Blackstone’s motion presented two primary arguments.

For one, he argued that Johnson also applies to the mandatory

Sentencing Guidelines, in particular to the residual clause of

the definition of “crime of violence” within the career

offender enhancement provision, U.S.S.G. § 4B1.2. Because

his prior California convictions only qualified as crimes of

violence based on the residual clause, he contended, his

sentence for the Hobbs Act robbery convictions should be

vacated and a new sentence imposed. In addition, he argued

that the residual clause in 18 U.S.C. § 924(c) is void for

UNITED STATES V. BLACKSTONE 7

vagueness following Johnson, so his conviction and

consecutive sentence for use of a firearm in connection with

a crime of violence should be vacated.

The district court concluded that Blackstone’s motion was

timely because Johnson applied retroactively on collateral

review to the Sentencing Guidelines and to the firearms

statute, 18 U.S.C. § 924(c). But the district court denied

Blackstone’s motion on the merits. It held that, even after

Johnson, Blackstone’s prior California convictions for

robbery and voluntary manslaughter are still crimes of

violence under U.S.S.G. § 4B1.2. The district court granted

a certificate of appealability on that issue. The district court

held that Blackstone’s current Hobbs Act robbery convictions

are for crimes of violence under 18 U.S.C. § 924(c) and did

not grant a certificate of appealability for that issue.

II. The Timeliness of the Motion

We review the denial of Blackstone’s motion de novo.

See United States v. Geozos, 870 F.3d 890, 894 (9th Cir.

2017). We will take up Blackstone’s two challenges

separately.

A. The Hobbs Act Robbery Sentences

In addition to disputing Blackstone’s arguments on the

merits, the Government continues to argue that Blackstone’s

§ 2255 motion is untimely. It contends that the Supreme

Court’s decisions in Johnson and Welch have not authorized

a motion by Blackstone at this point because those decisions

pertained to the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)(2)(B), and that neither addressed whether

8 UNITED STATES V. BLACKSTONE

Johnson applies to other clauses providing for enhanced

sentences based on convictions for crimes of violence.

Under the statute of limitations applicable to a § 2255

motion challenging a federal conviction and sentence,

28 U.S.C. § 2255(f), a defendant has one year to file such a

motion, measured from the latest of four possible dates. Two

of those dates are relevant here. One is “the date on which

the judgment of conviction becomes final.” Id. § 2255(f)(1).

That was in 2001 for Blackstone, so the current motion is too

late under that measure. The other is “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). In other words, a right newly

recognized by the Supreme Court may open the door to filing

a § 2255 motion later in time. The question presented in this

case is whether Johnson and Welch have opened that door.

We conclude that they have not.

1. Johnson and Subsequent Supreme Court

Decisions

In Johnson, the Supreme Court held that part of the

definition of “violent felony” in the ACCA is void for

vagueness. 135 S. Ct. at 2557. The ACCA provided for a

sentencing enhancement if a defendant had three previous

convictions “for a violent felony or a serious drug offense, or

both.” 18 U.S.C. § 924(e)(1). The statute defined “violent

UNITED STATES V. BLACKSTONE 9

felony” in multiple ways.1 The problem identified in Johnson

concerned the last portion of the definition, commonly

referred to as the “residual clause”: “or otherwise involves

conduct that presents a serious potential risk of physical

injury to another.” Id. § 924(e)(2)(B)(ii).

The Supreme Court held that the ACCA’s residual clause

is unconstitutionally vague because it left “grave uncertainty”

about both “how to estimate the risk posed by a crime” and

“how much risk it takes for a crime to qualify as a violent

felony.” Johnson, 135 S. Ct. at 2557–58; see also id. at 2556

(“Our cases establish that the Government violates [the Fifth

Amendment] by taking away someone’s life, liberty, or

property under a criminal law so vague that it fails to give

ordinary people fair notice of the conduct it punishes, or so

standardless that it invites arbitrary enforcement.”). Johnson

did not invalidate the other portions of the definition. In

Welch, the Court held that Johnson could be applied

retroactively to cases on collateral review. 136 S. Ct. at 1265.

1

“Violent felony” is defined in 18 U.S.C. § 924(e)(2)(B) as follows:

(B) the term “violent felony” means any crime

punishable by imprisonment for a term exceeding one

year, or any act of juvenile delinquency involving the

use or carrying of a firearm, knife, or destructive device

that would be punishable by imprisonment for such

term if committed by an adult, that–

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

threatened use of physical force against the person 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 injury to another[.]

10 UNITED STATES V. BLACKSTONE

The Supreme Court has considered the application of its

Johnson holding in other contexts. Last year it held that

Johnson does not apply to sentences imposed under the

advisory Sentencing Guidelines. Beckles v. United States,

137 S. Ct. 886, 890 (2017). The Court concluded that,

because the Guidelines “merely guide the exercise of a

court’s discretion in choosing an appropriate sentence within

the statutory range,” they are not subject to vagueness

challenges. Id. at 892.

Earlier this year, in Sessions v. Dimaya, 138 S. Ct. 1204

(2018), the Supreme Court considered whether the reasoning

of Johnson applies to the Immigration and Nationality Act

(INA), which defines the term “crime of violence” by

reference to 18 U.S.C. § 16 and in a manner similar to the

ACCA. 138 S. Ct. at 1210–11. Affirming a decision by this

court, Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the

Court concluded that 18 U.S.C. § 16(b) is unconstitutionally

vague because it creates “more unpredictability and

arbitrariness than the Due Process Clause tolerates.” Dimaya,

138 S. Ct. at 1216 (internal quotation marks omitted).

2. Timeliness of Blackstone’s Motion

Blackstone argues that Johnson announced a new rule that

is retroactive on collateral review, and that he therefore filed

a timely motion.2 Although they may suggest what the

2

In his Reply Brief, Blackstone argues that the Government waived

its timeliness argument by not raising it with the district court. The

Government has consistently argued that Blackstone’s motion is time-

barred. The Government’s contention that Johnson did not announce a

new rule that applies to the instant case is an “alternative argument to

support what has been [its] consistent claim from the beginning.” See

United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004).

UNITED STATES V. BLACKSTONE 11

answer might be, the Supreme Court’s recent cases did not

recognize the right needed to make Blackstone’s motion

timely.

Neither Johnson nor Welch mentioned the mandatory or

advisory Sentencing Guidelines. When the Court did

consider the application of the Johnson rule to the Sentencing

Guidelines, it held that the rule did not apply to sentences

imposed while the Guidelines were advisory. That may

permit an inference that the Court might reach a different

result regarding a sentence imposed while the Guidelines

were mandatory, such as Blackstone’s, but that inference has

not been recognized by the Court. To the contrary, a

concurring opinion in Beckles explicitly described that

question as an issue that remains open. See Beckles, 137 S.

Ct. at 903 n.4 (Sotomayor, J., concurring in the judgment)

(“The Court’s adherence to the formalistic distinction

between mandatory and advisory rules at least leaves open

the question whether defendants sentenced to terms of

imprisonment before [Booker] . . . may mount vagueness

attacks on their sentences. That question is not presented by

this case and I, like the majority, take no position on its

appropriate resolution.” (citations omitted)). The Beckles

majority expressed no disagreement with that view.

“As the Supreme Court has made clear, it is claims that are deemed

waived or forfeited, not arguments.” Id. That the Government’s argument

to us might have been expressed differently, based in large part on

subsequent caselaw, does not alter the fact that the Government has

argued throughout that Blackstone’s motion is untimely. In the cases that

Blackstone cites, a party failed to raise a statute of limitations defense or

conceded timeliness. See, e.g., Wood v. Milyard, 566 U.S. 463, 473

(2012) (“[W]e decline to adopt an absolute rule barring a court of appeals

from raising, on its own motion, a forfeited timeliness defense.”). That is

not true here.

12 UNITED STATES V. BLACKSTONE

The statute of limitations at issue here was part of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Pub. L. No. 104-132, § 105, 110 Stat. 1214

(1996). The Supreme Court has repeatedly admonished our

court not to advance on its own in determining what rights

have been recognized by the Supreme Court under AEDPA.

See, e.g., Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per curiam)

(“We have before cautioned the lower courts—and the Ninth

Circuit in particular—against framing our precedents at such

a high level of generality.” (internal quotation marks

omitted)); Nevada v. Jackson, 569 U.S. 505, 512 (2013) (“By

framing our precedents at such a high level of generality, a

lower federal court could transform even the most

imaginative extension of existing case law into ‘clearly

established Federal law, as determined by the Supreme

Court.’” (quoting 28 U.S.C. § 2254(d)(1))). We are regularly

called upon to apply and extend Supreme Court holdings to

different contexts, of course, but AEDPA expressly limits our

ability to do that here.

It is not always obvious whether and how the Supreme

Court will extend its holdings to different contexts. Our court

had previously inferred that the logic of Johnson would

extend to the Sentencing Guidelines and so held in United

States v. Hernandez-Lara, 817 F.3d 651 (9th Cir. 2016) (per

curiam), but the Supreme Court disagreed in Beckles and

subsequently vacated our decision, 138 S. Ct. 1976 (2018)

(mem.). In Dimaya, the Court affirmed our court’s

application of Johnson to the residual clause in 18 U.S.C.

§ 16(b), but it took a lengthy discussion to reach that

conclusion, and four justices disagreed. In those cases, our

court was not limited by AEDPA from reaching the issue of

how far to extend Johnson, but in this case we are. We

conclude that Blackstone’s motion is not timely because the

UNITED STATES V. BLACKSTONE 13

Supreme Court has not yet recognized the right that

Blackstone seeks to assert.

Three other circuits have agreed with our conclusion. The

Sixth Circuit explained that Beckles concerned only

Johnson’s application to the advisory Sentencing Guidelines,

and that its application to the mandatory Guidelines “is an

open question.” Raybon v. United States, 867 F.3d 625, 629

(6th Cir. 2017), cert. denied, 138 S. Ct. 2661 (2018) (mem.).

“Because it is an open question, it is not a ‘right’ that ‘has

been newly recognized by the Supreme Court’ let alone one

that was ‘made retroactively applicable to cases on collateral

review.’” Id. at 630 (quoting 28 U.S.C. § 2255(f)(3)).

The Fourth Circuit took a similar approach, concluding

that, “if the existence of a right remains an open question as

a matter of Supreme Court precedent, then the Supreme Court

has not ‘recognized’ that right.” United States v. Brown,

868 F.3d 297, 301 (4th Cir. 2017), petition for cert. filed

(U.S. June 8, 2018) (No. 17-9276).

Most recently, the Tenth Circuit opined that “it is

apparent that [the movant] has not raised a true Johnson claim

because he was not sentenced under any clause of the

ACCA.” United States v. Greer, 881 F.3d 1241, 1248 (10th

Cir. 2018), petition for cert. filed (U.S. May 4, 2018) (No. 17-

8775). The Tenth Circuit reasoned that to entertain an

argument that has not been directly recognized by the

Supreme Court “would undermine Congress’s intent in

passing AEDPA and the interests of comity and finality

underlying federal habeas review.” Id. (internal quotation

marks omitted).

14 UNITED STATES V. BLACKSTONE

Only one circuit that has considered this matter has held

differently. In Cross v. United States, the Seventh Circuit

rejected the reasoning of the Fourth and Sixth Circuits (it did

not consider the Tenth Circuit’s holding in Greer) and held

instead that their approach “improperly reads a merits

analysis into the limitations period.” 892 F.3d 288, 293 (7th

Cir. 2018). According to the Seventh Circuit, 28 U.S.C.

§ 2255(f)(3) “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 Supreme Court has

recently recognized.” Id. at 294. Cross states that this is the

only way to construe the statute without reading “asserted”

out of it. Id.; see also 28 U.S.C. § 2255(f)(3).

We disagree with the interpretation of the Seventh

Circuit. The right that a movant asserts must be “initially

recognized by the Supreme Court.” See 28 U.S.C.

§ 2255(f)(3). The Seventh Circuit explained that, “[u]nder

Johnson, a person has a right not to have his sentence dictated

by the unconstitutionally vague language of the mandatory

residual clause.” 892 F.3d at 294. But Johnson did not

recognize a right expressed in such broad terms, and in

concluding otherwise the Seventh Circuit failed to consider

the intent and purpose of AEDPA. Particularly in light of the

statement in Justice Sotomayor’s concurring opinion in

Beckles that the question remains open before the Court, it is

not for us to declare anything to the contrary.3

3

Blackstone argues that, in Moore v. United States, 871 F.3d 72 (1st

Cir. 2017), the First Circuit also held that Johnson announced a new rule

that applies retroactively on collateral review to the mandatory career

offender Guideline. The Seventh Circuit in Cross also cited Moore to that

effect. See Cross, 892 F.3d at 293. But Moore considered only the

certification required before a second or successive motion can be filed in

district court pursuant to 28 U.S.C. § 2255(h)(2). 871 F.3d at 74. The

UNITED STATES V. BLACKSTONE 15

In sum, Johnson did not recognize a new right applicable

to the mandatory Sentencing Guidelines on collateral review.

If the Court extends Johnson to a sentence imposed at a time

when the Sentencing Guidelines were mandatory, then

Blackstone may be able to bring a timely motion under

§ 2255. As of now, however, Blackstone’s motion is

untimely.

B. The Firearms Conviction Under 18 U.S.C. § 924(c)

Before the district court, Blackstone argued that he is

actually innocent of his 18 U.S.C. § 924(c) conviction for

using a firearm during a crime of violence because, after

Johnson, Hobbs Act robbery is not a “crime of violence”

under that statute. 18 U.S.C. § 924(c)(1)(A). That statute

requires the imposition of an additional consecutive sentence

on a defendant convicted of a “crime of violence” while using

or carrying a firearm. “Crime of violence” is defined in two

ways, the latter of which is commonly referred to as the

“residual clause”: “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

Supreme Court has explained considering such an application does not

require “the courts of appeals . . . to engage in [a] difficult legal analysis,”

so it is not clear to us that the First Circuit has reached a definitive

conclusion on the question. See Tyler v. Cain, 533 U.S. 656, 664 (2001).

The fact that our court previously granted Blackstone permission to file a

second or successive motion does not preclude our consideration of the

issue on the merits. To the extent that Moore did state a conclusion by the

First Circuit, we disagree for the reasons already stated.

16 UNITED STATES V. BLACKSTONE

offense.”4 Id. § 924(c)(3); see also United States v. Watson,

881 F.3d 782, 784 (9th Cir. 2018) (per curiam), petition for

cert. filed (U.S. June 28, 2018) (No. 18-5022). Blackstone’s

sentence was increased by an additional sixty months as a

result of its application. As noted above, the district court

rejected Blackstone’s argument on the merits, and it did not

grant a certificate of appealability on that issue.

Blackstone has raised this issue in his opening brief to this

court, as permitted under our rules. See 9th Cir. R. 22-1(e).

We treat Blackstone’s discussion of an uncertified issue as a

request to expand the certificate of appealability issued by the

district court. Solis v. Garcia, 219 F.3d 922, 926 (9th Cir.

2000). We may only consider the issue “if the applicant

made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2).

We held above that Johnson did not announce a new rule

that is applicable to the mandatory Sentencing Guidelines.

The same reasoning applies to Blackstone’s uncertified

argument that Hobbs Act robbery is not a “crime of violence”

for purposes of 18 U.S.C. § 924(c). The Supreme Court has

not recognized that § 924(c)’s residual clause is void for

vagueness in violation of the Fifth Amendment. Blackstone’s

uncertified challenge is time-barred.

4

“Crime of violence” is defined in 18 U.S.C. § 924(c)(3) as follows:

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

threatened use of physical force against the person or

property of another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of another

may be used in the course of committing the offense.

UNITED STATES V. BLACKSTONE 17

What that means for the request to expand the certificate

of appealability to reach the § 924(c) issue presents an

interesting quandary. The district court denied the certificate

based on its evaluation of the merits of the argument,

concluding that there was not a colorable argument that

Hobbs Act robbery did not constitute a crime of violence.

We have not reached the merits, rejecting Blackstone’s

application based on our conclusion that his application is

untimely at this point. “Where a plain procedural bar is

present . . . a reasonable jurist could not conclude either that

the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). “In such a

circumstance, no appeal would be warranted.” Id. But it

appears that the Seventh Circuit would conclude that an

application would be timely based on Johnson. See Cross,

892 F.3d at 294.

Although we disagree, we would not describe that court’s

conclusion as unreasonable. Because we have not reached

the merits, we are not in a position to deny the application on

the basis relied upon by the district court, even though it

might well be correct that there is not a question debatable

among reasonable jurists as to whether Hobbs Act robbery is

a crime of violence under § 924(c). To err on the side of

caution, we grant Blackstone’s request for a certificate of

appealability on this issue, but deny that challenge as

untimely.

III. Conclusion

The district court’s denial of Blackstone’s § 2255 motion

is affirmed. The Supreme Court may hold in the future that

Johnson extends to sentences imposed when the Sentencing

18 UNITED STATES V. BLACKSTONE

Guidelines were mandatory or pursuant to 18 U.S.C.

§ 924(c), but until then Blackstone’s motion is untimely.

AFFIRMED.