# Tracy Topaz Turner v. United States

> Court of Appeals for the Eleventh Circuit · August 28, 2023

URL: https://www.frixlaw.com/law-library/cases/9753429

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 28, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

[DO NOT PUBLISH]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

____________________

No. 22-12173
Non-Argument Calendar
____________________

TRACY TOPAZ TURNER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:16-cv-61155-MGC
____________________
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2 Opinion of the Court 22-12173

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

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

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

of violence” -- for purposes of the career-offender enhancement -- to include a
felony offense that “involves conduct that presents a serious potential risk of
physical injury to another.” See U.S.S.G. § 4B1.2(a) (1994).
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22-12173 Opinion of the Court 3

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

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

fense that “involves conduct that presents a serious potential risk of physical
injury to another.” See 18 U.S.C. § 924(e)(2)(B).
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4 Opinion of the Court 22-12173

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

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

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

as untimely because -- although Turner filed his section 2255 motion within
one year of the Johnson decision -- Turner’s argument did not qualify as a John-
son claim. Because we conclude that Turner’s section 2255 motion fails on the
merits, we need not address the district court’s alternative ruling about time-
liness.
5United States v. Booker, 543 U.S. 200 (2005).
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6 Opinion of the Court 22-12173

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

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

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

cided. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e cat-
egorically reject any exception to the prior panel precedent rule based upon a
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8 Opinion of the Court 22-12173

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

perceived defect in the prior panel’s reasoning or analysis as it relates to the
law in existence at that time.”).
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22-12173 Opinion of the Court 9

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753429. Public record. Not legal advice.