Petition for Writ of Certiorari — Dedrick T. Garrett, Petitioner v. United States

Supreme Court briefJul 30, 2018

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No. ____

IN THE

Supreme Court of the United States

______________

DEDRICK T. GARRETT,

Petitioner,

UNITED STATES OF AMERICA,

______________

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

______________

PETITION FOR A WRIT OF CERTIORARI

______________

DONNA LEE ELM

FEDERAL PUBLIC DEFENDER

CONRAD KAHN

Counsel of Record

RESEARCH AND WRITING ATTORNEY

APPELLATE DIVISION

201 S. Orange Ave., Ste. 300

Orlando, Florida 32801

(407) 648-6338

Conrad_Kahn@fd.org

Counsel for Petitioner

JULY 30TH, 2018

QUESTIONS PRESENTED

In Johnson v. United States, 135 S. Ct. 2551 (2015) (Samuel Johnson), this

Court declared the Armed Career Criminal Act’s (ACCA) residual clause

unconstitutionally vague. In Welch v. United States, 136 S. Ct. 1257 (2016), this

Court held that Samuel Johnson announced a new, substantive rule of constitutional

law that applied retroactively on collateral review.

In Beckles v. United States, 137 S. Ct. 886 (2017), this Court held that an

identical residual clause in the Career Offender provision of the Sentencing

Guidelines was not unconstitutionally vague. See U.S.S.G. § 4B1.2(a)(2). The Court

reasoned that the advisory Guidelines were not subject to the constitutional

vagueness prohibition because, unlike the ACCA, they do not “fix the permissible

range of sentences.” Beckles, 137 S. Ct. at 892.

However, the Beckles Court “le[ft] open the question whether defendants

sentenced to terms of imprisonment before our decision in United States v. Booker,

543 U.S. 220 (2005)—that is, during the period in which the Guidelines did fix the

permissible range of sentences—may mount vagueness attacks on their sentences.”

Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (citations omitted).

Mr. Garrett moved to vacate his sentence under 28 U.S.C. § 2255, arguing that

after Samuel Johnson and Beckles, his career-offender sentence, which was imposed

under the mandatory Guidelines, is unconstitutional. That district court denied the

motion, holding that Samuel Johnson does not apply to the mandatory Guidelines,

and both the district court and the Eleventh Circuit denied Mr. Garrett a

certificate of appealability (COA).

The broad question presented by this petition is whether the Eleventh Circuit

erroneously denied Mr. Garrett a COA on whether his sentence is unconstitutional

after Samuel Johnson. More specifically, however, this petition presents the narrow

questions of whether reasonable jurists can debate the following issues:

Whether U.S.S.G. § 4B1.2(a)(2)’s residual clause is void for vagueness

with respect to defendants sentenced under the pre-Booker mandatory Guidelines.

Whether the invalidation of § 4B1.2(a)(2)’s mandatory residual clause

applies retroactively on collateral review.

PARTIES TO THE PROCEEDINGS

The caption contains the names of all the parties to the proceedings.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDINGS ........................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

LEGAL PROVISIONS INVOLVED .............................................................................. 1

STATEMENT OF THE CASE....................................................................................... 2

LEGAL BACKGROUND ........................................................................................ 2

PROCEDURAL BACKGROUND ............................................................................. 6

REASONS FOR GRANTING THE PETITION ............................................................ 8

THE CIRCUITS ARE DIVIDED ON THE QUESTIONS PRESENTED .......................... 8

The Seventh Circuit Has Declared the Guidelines’ Mandatory

Residual Clause Retroactively Void for Vagueness ............................ 8

The Eleventh Circuit Has Held That the Guidelines’

Mandatory Residual Clause Is Not Void for Vagueness and

That Any Such Ruling Would Not Have Retroactive Effect ............ 11

II.

THE ELEVENTH CIRCUIT’S DECISION IN IN RE GRIFFIN CONTRAVENES THIS

COURT’S PRECEDENTS .................................................................................... 13

In re Griffin’s Vagueness Holding Contravenes Beckles .................. 13

In re Griffin’s Retroactivity Holding Contravenes Welch ................ 21

III. THE QUESTIONS PRESENTED ARE OF GREAT PUBLIC IMPORTANCE

REQUIRING URGENT RESOLUTION BY THIS COURT ......................................... 24

IV. THIS CASE SQUARELY PRESENTS BOTH QUESTIONS FOR REVIEW .................. 26

CONCLUSION............................................................................................................. 29

TABLE OF APPENDICES

Dedrick Garrett v. United States,

Eleventh Circuit Case No. 18-10806, Order........................... Appendix A

Dedrick Garrett v. United States,

MDFL Case No. 6:16-cv-1083-Orl-18TBS, Order .................. Appendix B

TABLE OF AUTHORITIES

CASES

PAGE(S)

Beckles v. United States, 137 S. Ct. 886 (2017) .................................................. passim

Brown v. United States, 868 F.3d 297 (4th Cir. 2017) ............................................... 25

Buford v. United States, 532 U.S. 59 (2001) ................................................................. 3

Burns v. United States, 501 U.S. 129 (1991) ........................................................ 15, 16

Cross v. United States, __ F.3d __,

2018 WL 2730774 (7th Cir. June 7, 2018) ............................................... passim

Glover v. United States, 531 U.S. 198 (2001) .............................................................. 26

Hamilton v. Secretary, Florida Dep’t of Corr.,

793 F.3d 1261, 1266 (11th Cir. 2015) ............................................................... 26

Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013) ............................................ 15

In re Baptiste, 828 F.3d 1337 (11th Cir. 2016) ............................................................. 5

In re Griffin, 823 F.3d 1350 (11th Cir. 2016)...................................................... passim

In re Hubbard, 825 F.3d 225 (4th Cir. 2016) .............................................................. 22

Irizarry v. United States, 553 U.S. 708 (2008)............................................................ 16

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

Koon v. United States, 518 U.S. 81 (1996) .................................................................. 15

Lewis v. United States, No. 17-13657,

2018 WL 2128612 (11th Cir. May 9, 2018) ...................................................... 27

Miller v. Florida, 482 U.S. 423 (1987) ........................................................................ 23

Mistretta v. United States, 488 U.S. 361 (1989) ......................................................... 14

Raybon v. United States, 867 F.3d 625 (6th Cir. 2017) ........................................ 24, 25

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) .................................................................. 9

Stinson v. United States, 508 U.S. 36 (1993) ........................................................ 14, 15

United States v. Booker, 543 U.S. 220 (2005) ..................................................... passim

United States v. Greer, 881 F.3d 1241 (10th Cir. 2018) ............................................. 25

Upshaw v. United States, No. 17-15742,

2018 WL 3090420 (11th Cir. June 22, 2018) ............................................. 26, 27

Welch v. United States, 136 S. Ct. 1257 (2016)................................................... passim

Wilson v. United States, 710 F. App’x 435 (11th Cir. 2018) ....................................... 27

STATUTES

18 U.S. § 16(b) ................................................................................................................ 9

18 U.S.C. § 3231 ............................................................................................................. 1

18 U.S.C. § 3553 ................................................................................................... passim

18 U.S.C. § 924(e)....................................................................................................... 1, 2

28 U.S.C. § 994(h) .................................................................................................... 3, 16

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 2244(b) .................................................................................................. 5, 28

28 U.S.C. § 2253(c) ......................................................................................................... 8

28 U.S.C. § 2255 ................................................................................................... passim

OTHER AUTHORITIES

Beckles, 137 S. Ct. 886,

Amicus Br. of Fed. Pub. & Cmty. Def. & NAFD

(U.S. No. 15-8544) (Aug. 18, 2016)........................................................................... 24

Raybon v. United States, 867 F.3d 625,

Amicus Br. of Sixth Circuit Fed. & Cmty. Def.

(6th Cir. No. 16-2522) (Oct. 18, 2017) ...................................................................... 24

vii

PETITION FOR A WRIT OF CERTIORARI

Dedrick T. Garrett respectfully petitions for a writ of certiorari to review the

Eleventh Circuit’s judgment.

OPINIONS BELOW

The Eleventh Circuit’s denial of Mr. Garrett’s application for a COA in Appeal

No. 18-10806 is provided in Appendix A.

JURISDICTION

The United States District Court for the Middle District of Florida had original

jurisdiction over Mr. Garrett’s case under 18 U.S.C. § 3231. The district court denied

Mr. Garrett’s 28 U.S.C. § 2255 motion on January 12, 2018.

Mr. Garrett

subsequently filed a notice of appeal and application for a COA in the Eleventh

Circuit, which was denied on May 1, 2018. See Appendix A. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

LEGAL PROVISIONS INVOLVED

The ACCA defines a “violent felony” to include any felony “that is burglary,

arson, or extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii). The italicized language is the “residual clause.”

At the time of Mr. Garrett’s sentencing, the Career Offender provision of the

Sentencing Guidelines contained an identical residual clause, defining a “crime of

violence” to include any felony “that is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (1998).

STATEMENT OF THE CASE

A. LEGAL BACKGROUND

The ACCA transforms a ten-year statutory maximum penalty into a

fifteen-year mandatory minimum for certain defendants convicted of federal firearms

offenses. 18 U.S.C. §§ 924(a)(2), 924(e). The ACCA enhancement applies when the

defendant has three “violent felonies” or “serious drug offenses.” 18 U.S.C. § 924(e).

For purposes of the ACCA, “violent felony” is defined as, among other things, any

felony “that is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The italicized language is known as

the “residual clause.”

In Samuel Johnson, this Court held that the ACCA’s residual clause was

unconstitutionally vague. 135 S. Ct. at 2557. The Court explained: “Two features of

the residual clause conspire to make it unconstitutionally vague.” Id. First, the

“ordinary-case” analysis—requiring courts to “picture the kind of conduct that the

crime involves in the ordinary case, and to judge whether that abstraction presents a

serious risk of physical injury”—created “grave uncertainty about how to estimate

the risk posed by a crime.” Id. (citation omitted). And, second, the residual clause

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

felony,” because it “forces courts to interpret ‘serious potential risk’ in light of the four

enumerated crimes” preceding it, and those crimes were “far from clear in respect to

the degree of risk each poses.” Id. at 2558 (citation omitted). Those uncertainties led

the Court to conclude that “the indeterminacy of the wide-ranging inquiry required

by the residual clause both denies fair notice to defendants and invites arbitrary

enforcement by judges,” “produc[ing] more unpredictability and arbitrariness than

the Due Process Clause tolerates.” Id. at 2557–58.

In Welch, this Court held that Samuel Johnson announced a new, substantive

rule of constitutional law, and it therefore applied retroactively on collateral review.

136 S. Ct. at 1264–65. The Court reaffirmed that “a rule is substantive rather than

procedural if it alters the range of conduct or the class of persons that the law

punishes,” and that determination is made “by considering the function of the rule.”

Id. (citation omitted). The Court concluded that, “[u]nder th[at] framework, the rule

announced in [Samuel] Johnson is substantive,” because it “changed the substantive

reach” of the ACCA by “altering the range of conduct or the class of persons that the

Act punishes.” Id.

The Career Offender provision of the Sentencing Guidelines implements

a congressional mandate to ensure that a certain category of offenders receive a

sentence “at or near the maximum term authorized.” 28 U.S.C. § 994(h); see U.S.S.G.

§ 4B1.1 cmt. backg’d (2015). The career offender provision creates a “category of

offender subject to particularly severe punishment.” Buford v. United States, 532

U.S. 59, 60 (2001). It does so by generally prescribing enhanced offense levels and

automatically placing career offenders in criminal history category VI, the highest

category available under the Guidelines. See U.S.S.G. § 4B1.1(b).

A defendant is a career offender if he is at least eighteen years of age, commits

an offense that is a “crime of violence” or “controlled substance offense,” and has at

least two prior felony convictions for a “crime of violence” or “controlled substance

offense.” U.S.S.G. § 4B1.1. At the time of Mr. Garrett’s sentencing in 1999, the term

“crime of violence” was defined to include any felony “that is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)

(1998) (emphasis added). 1 The italicized language in the Career Offender Guideline

was identical to the ACCA residual clause that Samuel Johnson invalidated.

Given the similarity between the two residual clauses, thousands of federal

prisoners who had been sentenced as career offenders sought to collaterally challenge

their sentences under § 2255 in light of Samuel Johnson. Some of those prisoners

had been sentenced before this Court’s decision in Booker rendered the Guidelines

advisory. Because those prisoners had been sentenced over a decade earlier, many

had previously filed § 2255 motions. Thus, they were legally required to obtain

authorization from the court of appeals before filing a second or successive § 2255

motion based on Johnson. 28 U.S.C. § 2255(h).

Shortly after Samuel Johnson, the Sentencing Commission amended § 4B1.2 and

deleted its residual clause. U.S.S.G., app. C, amend. 798 (Aug. 1, 2016). All references

here are to the pre-amendment version of § 4B1.2(a)(2).

Marvin Griffin was one such inmate, and he filed a pro se application for leave

to file a successive § 2255 motion based on Samuel Johnson. See 11th Cir. No. 1612012. Without appointing counsel or holding oral argument, the Eleventh Circuit

published an order denying the application. In re Griffin, 823 F.3d 1350 (11th Cir.

2016).

In doing so, the Court issued two holdings.

First, it held that “the

Guidelines—whether mandatory or advisory—cannot be unconstitutionally vague.”

Id. at 1354.

Second, the court alternatively held that any ruling invalidating

§ 4B1.2(a)(2)’s then-mandatory residual clause would not be retroactive. Id. at 1355.

Because In re Griffin arose in the context of a successive application, Mr. Griffin was

statutorily barred from seeking rehearing or certiorari review.

28 U.S.C.

§ 2244(b)(3)(E). 2

After In re Griffin, this Court granted certiorari in Beckles to decide,

among other things, whether Samuel Johnson rendered § 4B1.2(a)(2)’s residual

clause void for vagueness, and, if so, whether that holding would apply retroactively

on collateral review. The Court ultimately did not reach the retroactivity question

because it held that the advisory Guidelines were not subject to the constitutional

Mr. Griffin nonetheless re-filed two subsequent Samuel Johnson applications with

the court of appeals—one with counseled briefing, urging reconsideration of In re

Griffin; and one after this Court’s decision Beckles. See 11th Cir. Nos. 16-13752 &

17-11663. In the interim period, however, the Eleventh Circuit held that inmates

were legally barred from re-filing a Samuel Johnson-based application after a

previous application had been denied on the merits. In re Baptiste, 828 F.3d 1337

(11th Cir. 2016). Accordingly, Mr. Griffin’s later applications were denied on that

basis.

prohibition on vagueness at all, and therefore § 4B1.2(a)(2)’s residual clause could not

be unconstitutionally vague.

Critically, however, the Court’s holding was expressly limited to the advisory

Guidelines.

Id. at 890, 895–96.

Moreover, throughout the opinion, the Court

contrasted the post-Booker advisory Guidelines with the pre-Booker mandatory

Guidelines. As a result, Justice Sotomayor’s separate opinion made explicit what was

implicit in the majority opinion—that it did not address defendants sentenced under

the pre-Booker mandatory Guidelines:

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 our decision in United States

v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the

Guidelines did “fix the permissible range of sentences,” ante, at 892—

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.

Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (internal citations omitted).

This case presents the question left open in Beckles.

B. PROCEDURAL BACKGROUND

On January 14, 1999, Mr. Garrett pled guilty to possession with intent to

distribute cocaine. At sentencing, he was found to be a career offender based on: (1)

a 1991 Florida conviction for kidnapping; and (2) a 1996 Florida conviction for

delivery of cocaine. 3 Because of the enhancement, his total offense level was 34, his

3 Mr. Garrett is not challenging the use of his drug conviction as a career offender

predicate offense.

criminal history category was VI, and his guideline range was 262 to 327 months. On

April 14, 1999, he was sentenced to 280 months’ imprisonment. He did not appeal

his conviction or sentence.

On June 17, 2016, Mr. Garrett moved to vacate his sentence under § 2255,

arguing that based on Samuel Johnson, his career offender sentence is

unconstitutional. On July 21, 2016, the district court stayed the proceedings pending

this Court’s decision in Beckles. Civ. Doc. 6.

On March 6, 2017, this Court decided Beckles, holding that Samuel Johnson

does not apply to the advisory guidelines, but left open whether it applies to the

mandatory Guidelines. 137 S. Ct. 886; see id. at 903 n.4 (Sotomayor, J., concurring).

On April 20, 2017, the district court lifted its stay and allowed the parties to

brief whether Samuel Johnson applies to the mandatory Guidelines and whether Mr.

Garrett is entitled to relief from his career offender sentence.

In his memorandum of law, Mr. Garrett argued that this Court’s reasoning in

Beckles confirmed that Samuel Johnson applies to the mandatory Guidelines, and

given that reasoning, the Eleventh Circuit’s decision in In re Griffin is no longer good

law. 4 Mr. Garrett then argued that without the Guidelines’ residual clause, he could

not be considered a career offender because his 1991 Florida conviction for

kidnapping no longer qualified as a “crime of violence.”

4 Mr. Garrett also argued that even if In re Griffin were good law, it would not be

binding on the district court since the Eleventh Circuit published its order in the

unique context of an application for leave to file a second or successive § 2255 motion.

On January 12, 2018, the district court denied Mr. Garrett’s § 2255 motion,

finding that Mr. Garrett’s motion is untimely since Samuel Johnson does not apply

to the mandatory guidelines. 5 The district court also denied Mr. Garrett a COA.

Mr. Garrett moved for a COA in the Eleventh Circuit, and on May 1, 2018, the

court denied the motion in a one-page order, stating:

Dedrick Garrett moves for a certificate of appealability in order to

appeal the denial of his 28 U.S.C. § 2255 motion to vacate sentence. His

motion for a certificate of appealability is DENIED because he has failed

to make a substantial showing of the denial of a constitutional right. See

28 U.S.C. § 2253(c)(2).

Appendix A.

REASONS FOR GRANTING THE PETITION

THE CIRCUITS ARE DIVIDED ON THE QUESTIONS PRESENTED

The circuits are divided on whether Samuel Johnson invalidates the

mandatory, pre-Booker residual clause of the Guidelines, and, if so, whether that

invalidation would apply retroactively on collateral review. The Seventh Circuit has

answered both questions affirmatively. The Eleventh Circuit has answered both

negatively.

A. The Seventh Circuit Has Declared the Guidelines’ Mandatory

Residual Clause Retroactively Void for Vagueness

In Cross v. United States, 892 F.3d 288 (7th Cir. 2018), the Seventh

Circuit held that “the residual clause of the [mandatory] guidelines suffers from the

The government argued that Mr. Garrett’s claim was not cognizable and

procedurally defaulted. The government also argued that even if Samuel Johnson

applied to the mandatory guidelines, such a rule would not be retroactive. The

district court, however, did not reach those issues.

same indeterminacy” as the ACCA’s residual clause struck down in Johnson. Id. at

299. The court explained that the “ordinary case” approach and “serious potential

risk” standard that had plagued the ACCA’s residual clause applied equally to the

Guidelines’ residual clause. Id. at 299–300. “It hardly could be otherwise because

the two clauses are materially identical.”

Id.

That the Guidelines referred to

burglary “of a dwelling,” while the ACCA referred only to “burglary,” made no

difference, particularly given Sessions v. Dimaya, 138 S. Ct. 1204 (2018)—declaring

18 U.S.C. § 16(b) void for vagueness in light of Samuel Johnson—because “the textual

differences between the ACCA and guidelines pale in comparison to the differences

between the ACCA and section 16.” Id. at 302. And concerns about the categorical

approach in Dimaya were expressed by only a minority of the Court and were limited

to § 16(b). Id. at 302–303.

Because the mandatory Guidelines’ residual clause suffered from the same

indeterminacy as the ACCA’s residual clause, the Cross court went on to determine

whether “the constitutional requirement of clarity applies to the mandatory

guidelines.” Id. at 299. The court concluded that Beckles’ “logic for declining to apply

the vagueness doctrine” to the advisory Guidelines resulted in the opposite outcome

for the mandatory Guidelines. Id. at 304.

It reasoned that, unlike the advisory

Guidelines, “[t]he mandatory guidelines did . . . implicate the concerns of the

vagueness doctrine” because, as described by Booker, they fixed the permissible

sentences for criminal offenses.

Id. at 305.

“In sum, as the Supreme Court

understood in Booker, the residual clause of the mandatory guidelines did not merely

guide judges’ discretion; rather, it mandated a specific sentencing range and

permitted deviation only on narrow, statutorily fixed bases.” Id. at 306. Thus, the

Seventh Circuit “conclude[d] 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

available.’”

Id. (quoting Beckles, 137 S. Ct. at 894–95 (ellipsis omitted)).

“The

mandatory guidelines are thus subject to attack on vagueness grounds.” Id.

The Seventh Circuit then addressed “whether Johnson applies

retroactively to the residual clause of the career-offender guideline.” Id. Relying

heavily on this Court’s decision in Welch, the court of appeals answered that question

affirmatively. Id. at 306–07. It reasoned: “The same logic justifies treating Johnson

as substantive, and therefore retroactive, when applied to the mandatory guidelines.”

Id. “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 narrows the set of defendants punishable

as career offenders for the commission of any number of crimes.” Id. “Elimination of

the residual 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.” Id. (citations omitted).

Having declared the mandatory residual clause retroactively void for

vagueness, the Seventh Circuit held that movants “are entitled to relief from their

career-offender classifications, based on the Supreme Court’s decision in [Samuel[

Johnson. We thus REVERSE the district court and REMAND these cases with

instructions to grant [the] section 2255 motions and to resentence them” without the

enhancement. Id.

B. The Eleventh Circuit Has Held That the Guidelines’ Mandatory

Residual Clause Is Not Void for Vagueness and That Any Such Ruling

Would Not Have Retroactive Effect

In In re Griffin, a pre-Beckles decision issued on a pro se application to

file a successive § 2255 motion, the Eleventh Circuit held that “the 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.”

823 F.3d at 1354.

It reasoned that “[t]he

Guidelines do not define illegal conduct: they are directives to judges for their

guidance in sentencing convicted criminals, not to citizens at large.” Id. And, the

Eleventh Circuit emphasized, “[d]ue process does not mandate notice of where, within

the statutory range, the guidelines sentence will fall.” Id. “Indeed, a defendant’s due

process rights are unimpaired by the complete absence of sentencing guidelines.” Id.

at 1355. Thus, the Eleventh Circuit opined, “[t]he limitations the Guidelines place

on a judge’s discretion cannot violate a defendant’s right to due process by reason of

being vague.” Id. at 1354. It further noted the PSI afforded adequate notice of the

career-offender enhancement. Id. at 1355.

The Eleventh Circuit alternatively held that even if the mandatory

residual clause were void for vagueness, “that does not mean that the ruling in Welch

makes Johnson retroactive.”

Id.

The court reasoned that “[t]he application of

Johnson to the ACCA was a substantive change in the law because it altered the

statutory range of permissible sentences.” Id. “By contrast, a rule extending Johnson

and concluding that it invalidates the crime-of-violence residual clause in the

Guidelines would establish only that the defendant’s guidelines range had been

incorrectly calculated, but it would not alter the statutory boundaries for sentencing

set by Congress for the crime.” Id. Because that invalidation would not “produce a

sentence that exceeds the statutory maximum,” and instead would “produce changes

in how the sentencing procedural process is to be conducted,” the court characterized

it as a procedural rather than a substantive rule. Id. And, unlike in the ACCA

context, the retroactive invalidation of the mandatory residual clause of the

Guidelines would not preclude the district court from re-imposing the same sentence

under the now-advisory Guidelines.

Id.

The court concluded: “A rule that the

Guidelines must satisfy due process vagueness standards therefore differs

fundamentally and qualitatively from a holding that a particular criminal statute or

the ACCA sentencing statute—that increases the statutory maximum penalty for the

underlying new crime—is substantively vague.” Id. at 1356.

In sum, geography alone will now determine whether career offenders

sentenced before Booker will be eligible for relief. Those from Chicago may walk free;

those from Miami will not. Only this Court can resolve that disparity.

II.

THE ELEVENTH CIRCUIT’S DECISION IN IN RE GRIFFIN CONTRAVENES THIS

COURT’S PRECEDENTS

Here, the district court relied exclusively on In re Griffin. See Appendices A &

That

decision’s

holdings—that

the

mandatory

Guidelines

cannot

unconstitutionally vague, and that the invalidation of § 4B1.2(a)(2)’s mandatory

residual clause would not have retroactive effect—contravene this Court’s decisions

in Beckles and Welch. At a minimum, reasonable jurists can debate these issues.

A. In re Griffin’s Vagueness Holding Contravenes Beckles

In Beckles, this Court explained, to determine whether a legal provision

is subject to the constitutional prohibition on vague laws, the key “inquiry” is

“whether a law regulating private conduct by fixing permissible sentences provides

notices and avoids arbitrary enforcement by clearly specifying the range of penalties

available.” 137 S. Ct. at 895. The Court concluded that the advisory Guidelines do

not fit that description, because they do not “fix the permissible range of sentences,”

but merely guide the exercise of sentencing discretion under 18 U.S.C. § 3553(a). Id.

at 892, 894.

Because of their advisory nature, the Court found that the advisory guidelines

do “not implicate the twin concerns underlying vagueness doctrine—providing notice

and preventing arbitrary enforcement.” Id. at 894. It reasoned that “even perfectly

clear Guidelines could not provide notice to a person who seeks to regulate his conduct

so as to avoid particular penalties within the statutory range,” since the sentencing

court retained discretion to vary outside the advisory guideline range. Id. And vague

advisory Guidelines do not implicate the concern of arbitrary judicial enforcement

because, rather than “prescribe the sentences or sentencing range available,” they

merely “advise sentencing courts how to exercise their discretion within the bounds

established by Congress.” Id. at 894–95.

Beckles’ reasoning compels the opposite outcome for the pre-Booker

mandatory Guidelines. While the advisory Guidelines do not “fix the permissible

range of sentences,” id. at 892, the mandatory Guidelines did precisely that, id. at 903

n.4 (Sotomayor, J., concurring in the judgment). Indeed, Beckles itself distinguished

the mandatory Guidelines from the advisory Guidelines, recognizing that the former

were “binding on district courts” and “constrain[ed] [their] discretion.” Id. at 894.

The landmark decision in Booker made that clear.

In Booker, this Court confronted a Sixth Amendment challenge to the

mandatory Guidelines precisely because they could not “be read as merely advisory

provisions that recommended, rather than required, the selection of particular

sentences.” 543 U.S. at 233. The Court explained:

The Guidelines as written . . . are not advisory; they are mandatory and

binding on all judges. While subsection (a) of § 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

Guidelines, subject to departures in specific, limited cases. (Emphasis

added.) Because they are binding on judges, we have consistently held

that the Guidelines have the force and effect of laws.

Id. at 233–34 (footnotes and parallel citations omitted); see Mistretta v. United States,

488 U.S. 361, 391 (1989) (“the Guidelines bind judges and courts in the exercise of

their uncontested responsibility to pass sentence in criminal cases”); Stinson v.

United States, 508 U.S. 36, 42 (1993) (reiterating that Guidelines are “binding on

federal courts”).

As a result, the Booker Court repeatedly recognized that the

Guidelines effectively prescribed the range of permissible sentences. See 543 U.S. at

226 (“binding rules in the Guidelines limited the severity of the sentence that the

judge could lawfully impose on the defendant”); id. at 227 (Guidelines “mandated that

the judge select a sentence” in the range); id. at 236 (guideline range established “the

maximum sentence” and “upper limits of sentencing”). Thus, it equated the guideline

maximum with the statutory maximum. Id. at 238.

Booker further explained that the mandatory Guidelines had the “force and

effect of laws” despite “[t]he availability of a departure in specified circumstances.”

Id. at 234.

Departures were determined by considering “only the sentencing

guidelines, policy statements, and official commentary of the Sentencing

Commission,” 18 U.S.C. § 3553(b) (emphasis added); see Burns v. United States, 501

U.S. 129, 133 (1991), which were themselves “binding,” Stinson, 508 U.S. at 42–43.

Courts were not permitted “to decide for themselves, by reference to the” goals of

§ 3553(a), “whether a given factor ever [could] be an appropriate sentencing

consideration.” Koon v. United States, 518 U.S. 81, 108 (1996). Thus, “the guidelines

were no different from statutes, which often specify exceptions.” Hawkins v. United

States, 706 F.3d 820, 822 (7th Cir. 2013); see, e.g., 18 U.S.C. § 3553(e) (substantialassistance exception to statutory minimum); 18 U.S.C. § 3553(f) (safety-valve

exception to statutory minimum).

Indeed, Booker expressly rejected the notion that “the ability of a district judge

to depart from the Guidelines means that she is bound only by the statutory” range.

543 U.S. at 234. The Court emphasized that “departures are not available in every

case, and in fact are unavailable in most,” where, “as a matter of law, the Commission

will have adequately taken all relevant factors into account, and no departure will be

legally permissible. In those instances, the judge is bound to impose a sentence

within the Guideline range.” Id. Departing from that mandatory guideline range

was reversible error. Id. at 234–35. And nowhere was that true more than in the

career-offender context, where Congress uniquely directed the Commission to

promulgate that particular Guideline. 28 U.S.C. § 994(h).

Because the mandatory Guidelines prescribed the permissible range of

sentences, any lack of clarity therein would squarely implicate the twin concerns of

the vagueness doctrine. While “even perfectly clear [advisory] Guidelines could not

provide notice to a person who seeks to regulate his conduct so as to avoid particular

penalties,” Beckles, 137 S. Ct. at 894, the same was not true for the mandatory

Guidelines. Because the mandatory Guidelines constrained the court’s sentencing

discretion, they provided concrete notice to a defendant of the particular penalties

available.

Indeed, Beckles expressly reiterated that “due process concerns . . .

require[d] notice in a world of mandatory Guidelines.” Id. (quoting Irizarry v. United

States, 553 U.S. 708, 714 (2008)); see also Burns, 501 U.S. at 138.

Applying a vague Guideline in the pre-Booker era would also invite arbitrary

judicial enforcement. Because the mandatory Guidelines provided the sentencing

court with more than advice, instead mandating a specific range of permissible

sentences, a vague Guideline would permit the court, “without any legally fixed

standards,” to arbitrarily “prescribe the sentences or sentencing range available.”

Beckles, 137 S. Ct. at 894–95 (citation omitted). That is precisely the sort of arbitrary

judicial enforcement that motivated Samuel Johnson.

Here, for example, the

sentencing court had no intelligible standard by which to determine whether Mr.

Garrett’s prior offense constituted a “crime of violence” under the residual clause.

Rather than guide the sentencing court’s discretion, that standardless determination

established the fixed range of permissible sentences. Permitting judges to set that

range with no intelligible legal standard directly implicates the vagueness doctrine’s

concern with arbitrary enforcement.

In short, the pre-Booker Guidelines were called “mandatory” for a reason: they

bound the sentencing judge. Carrying the force and effect of law, they prescribed the

sentences that a court could impose and that a defendant was eligible to receive. In

stark contrast to the advisory Guidelines, they “fixed the range of permissible

sentences.” Beckles, 137 S. Ct. at 892. Thus, Beckles compels the conclusion that the

mandatory Guidelines under which Mr. Garrett was sentenced are subject to the

constitutional prohibition on vagueness. And because the mandatory residual clause

in § 4B1.2(a)(2) is identical to the residual clause invalidated in Samuel Johnson, it

too must be declared void for vagueness.

The contrary reasoning and conclusion of In re Griffin cannot be

reconciled with Beckles. For starters, at no time did In re Griffin conduct the key

“inquiry” that Beckles now requires—whether the mandatory Guidelines fixed or

prescribed the range of permissible sentences. Id. at 892, 894–95. Instead, In re

Griffin adopted an incompatibly narrow understanding of the vagueness doctrine,

concluding that the mandatory Guidelines cannot be unconstitutionally vague

because “they do not establish the illegality of any conduct.” 823 F.3d at 1354; see id.

(repeating same).

But Beckles reaffirmed what Samuel Johnson had already

clarified: the vagueness doctrine applies not only to “laws that define criminal

offenses,” but to “laws that fix the permissible sentences for criminal offenses.”

Beckles, 137 S. Ct. at 892 (emphasis omitted); see Samuel Johnson, 135 S. Ct. at 2557.

The Eleventh Circuit also failed to ask, as Beckles now requires, whether the

mandatory Guidelines “implicate[d] the twin concerns” of notice and arbitrary

enforcement underlying the vagueness doctrine. Beckles, 137 S. Ct. at 894. As for

the latter, In re Griffin said nothing at all, a glaring analytical omission. As for the

former, it reasoned that “[d]ue process does not mandate notice of where, within the

statutory range, the guidelines sentence will fall.” 823 F.3d at 1354. That may be so,

but Beckles made clear that due process does mandate notice of the permissible

“range” of sentences. And while that does not include the range established by

advisory Guidelines (since they merely guide the exercise of discretion), it does

include the range established by mandatory Guidelines (since they fixed the range of

permissible sentences). By fixing the range of permissible sentences, the mandatory

Guidelines communicated the available sentences to a defendant. See Beckles, 137 S.

Ct. 894. Indeed, Beckles specifically contrasted the mandatory Guidelines from the

advisory Guidelines with regard to due process notice principles. See id. (“the due

process concerns that . . . require notice in a world of mandatory Guidelines no longer

apply’” post-Booker) (citations omitted)).

In re Griffin also reasoned that due process is satisfied whenever the PSI

notifies the defendant of the career-offender enhancement. 823 F.3d at 1355. But

Beckles clarified that the relevant notice question is not whether the defendant

receives notice of a potential sentence after having already committed the offense and

been convicted. Instead,, it is whether the Guidelines supply notice ex ante to a

“person who seeks to regulate his conduct so as to avoid particular penalties.”

Beckles, 137 S. Ct. at 894.

In that regard, In re Griffin’s reasoning is also

irreconcilable with Samuel Johnson: in the ACCA context, probation officers

routinely notified defendants, after conviction but before sentencing, that they might

receive an enhanced sentence based on the residual clause. But that notice did not

cure the constitutional infirmity of the ACCA’s residual clause.

The remainder of In re Griffin’s analysis continues to overlook the key

distinction between advisory and mandatory Guidelines. For example, in concluding

that the Guidelines, “whether mandatory or advisory,” cannot be unconstitutionally

vague, it reasoned that they were “designed to assist and limit the discretion of the

sentencing judge.” 823 F.3d at 1354 (emphasis added). That conflates the key

distinction—emphasized in Beckles—between advisory Guidelines that “assist” (i.e.,

guide) sentencing discretion and mandatory Guidelines that “limit” (i.e., constrain)

such discretion. Beckles, 137 S. Ct. at 892, 894.

Continuing to treat the advisory and mandatory Guidelines as one and the

same, In re Griffin also reasoned that the Guidelines could not be vague because the

Constitution permitted completely indeterminate sentencing.

823 F.3d at 1355.

While Beckles did embrace that point, its reasoning applies only to the advisory

Guidelines.

Specifically, Beckles reasoned that, because a purely discretionary

sentencing regime was constitutional, there could be no vagueness problem with

Guidelines that sought only to guide that discretion. 137 S. Ct. at 892–94. At the

same time, however, Beckles made clear that the vagueness doctrine does apply to

laws prescribing the range of authorized penalties. See id. at 892 (laws “must specify

the range of available sentences with sufficient clarity”) (citation omitted); id. at 893

(reaffirming that sentencing laws must “specif[y] the ‘penalties available’ and define[

] the ‘punishment authorized’”) (quoting United States v. Batchelder, 442 U.S. 114,

123 (1979)). Again, the mandatory Guidelines did just that.

In sum, at no time did In re Griffin acknowledge the binding nature of the

mandatory Guidelines, let alone ask whether they fixed the range of permissible

sentences, the key “inquiry” under Beckles. Instead, it focused on the fact that the

Guidelines did not define illegal conduct, which is not relevant under Beckles. It

repeatedly overlooked or conflated the key distinction between advisory and

mandatory Guidelines, a distinction that Beckles reaffirmed and emphasized. And

it did not properly analyze whether the mandatory Guidelines implicated the notice

and arbitrary enforcement concerns underlying the vagueness doctrine. Had it done

so, it would have reached the same conclusion as the Seventh Circuit in Cross.

B. In re Griffin’s Retroactivity Holding Contravenes Welch

In re Griffin’s retroactivity holding fares no better. In Welch, this Court

explained: “By striking down the residual clause as void for vagueness, Johnson

changed the substantive reach of the Armed Career Criminal Act, altering the range

of conduct or the class of persons that the Act punishes.” 136 S. Ct. at 1265 (citation

omitted). “Before [Samuel] Johnson, the Act applied to any person who possessed a

firearm after three violent felony convictions, even if one or more of those convictions

fell only under the residual clause.” Id. However, after [Samuel] Johnson, the “same

person engaged in the same conduct is no longer subject” to the enhancement. Id.

Thus, it announced a “substantive” rule with retroactive effect.

“By the same logic,” the Court added, “[Samuel] Johnson is not a procedural

decision,” because it “had nothing to do with the range of permissible methods a court

might use to determine whether a defendant should be sentenced under the Armed

Career Criminal Act.” Id. It did not, for example, “allocate decision-making authority

between judge and jury, or regulate the evidence that the court could consider in

making its decision.” Id. (citation omitted). Instead, “[Samuel] Johnson affected the

reach of the underlying statute rather than the judicial procedures by which the

statute is applied.” Id. Its function was therefore substantive, not procedural.

Welch’s reasoning applies with full force here. Just as with Samuel

Johnson, any decision invalidating § 4B1.2(a)(2)’s mandatory residual clause would

“change[ ] the substantive reach of the [Career Offender Guideline], altering the

range of conduct or the class of persons that the [Guideline] punishes.” Id. (internal

quotation marks omitted). Before that invalidation, the Career Offender Guideline

applied to any person who, among other things, was convicted of a “crime of violence”

after two prior convictions for a “crime of violence,” “even if one or more of those

convictions fell under only the residual clause.” Id. But after the invalidation, “some

crimes will no longer fit the Sentencing Guidelines’ definition of a crime of violence

and will therefore be incapable of resulting in a career-offender sentencing

enhancement.” In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016). Thus, the very

same person who qualified as a career offender based on § 4B1.2(a)(2)’s mandatory

residual clause before its invalidation would no longer be subject to the enhancement

after the invalidation.

It therefore affects the substantive reach of the Career

Offender Guideline and, in turn, the class of persons eligible for its enhanced penalty.

Ignoring Welch’s core reasoning, In re Griffin held that the invalidation

of § 4B1.2(a)(2)’s mandatory residual clause would be procedural rather than

substantive. Attempting to distinguish Welch, it reasoned that any such ruling would

not be substantive because it “would not alter the statutory boundaries for

sentencing,” and thus would not “produce a sentence that exceeds the statutory

maximum.” 823 F.3d at 1355. Rather, it reasoned, that ruling would be procedural

because it “would establish only that the defendant’s guidelines range had been

incorrectly calculated,” which “would produce changes in how the sentencing

procedural process is to be conducted.” Id.

That attempt to distinguish Welch is unpersuasive because it neglects that the

mandatory Guidelines had “the force and effect of laws.” Booker, 543 U.S. at 234. As

explained above, under the pre-Booker regime, the sentencing court was legally

bound to sentence defendants in accordance with the Guidelines. The Guidelines

were thus the functional equivalent of what the statutory range is today. As a result,

the career-offender enhancement, just like the ACCA enhancement, subjected

defendants to increased sentences that they could not otherwise lawfully receive.

Whether the sentence exceeded the correct statutory maximum or the correctlycalculated high-end of the mandatory guideline range, the result is the same: the

defendant’s sentence was not “authorized by law.”

Welch, 136 S. Ct. at 1266.

Therefore, invalidating § 4B1.2(a)(2)’s mandatory residual clause would not “produce

changes in the sentencing procedural process” any more than Johnson did. In re

Griffin, 823 F.3d at 1355.

That conclusion is not affected by the limited availability of departures from

mandatory guideline range. Again, there are exceptions to the ACCA’s statutory

range, yet they did not render Samuel Johnson any less substantive. See, e.g., 18

U.S.C. § 3553(e). Moreover, this Court has already determined, in a related context,

that changing a “presumptive” guideline range—one more liberally permitting

departures based on any clear and convincing reason—was substantive, not

procedural, in nature. Miller v. Florida, 482 U.S. 423 (1987). Surely then, narrowing

the reach of a mandatory guideline range, subject to only limited departures in

exceptional cases, must be substantive as well. Again, had the Eleventh Circuit in

In re Griffin properly applied Welch, it would have reached the same conclusion as

the Seventh Circuit in Cross. In short, there is no sound basis to distinguish Welch’s

retroactivity holding.

III.

THE QUESTIONS PRESENTED ARE OF GREAT PUBLIC IMPORTANCE

REQUIRING URGENT RESOLUTION BY THIS COURT

In light of the above arguments, many federal prisoners are currently serving

unlawful sentences. According to one recent estimate, there are about five thousand

federal prisoners who were sentenced as career offenders pre-Booker and who remain

in prison. See Raybon v. United States, 867 F.3d 625, Amicus Br. of Sixth Circuit

Fed. & Cmty. Def., App. 2a (6th Cir. No. 16-2522) (Oct. 18, 2017). That high number

reflects the severe operation of the enhancement. See, e.g., Beckles, 137 S. Ct. 886,

Am. Br. of Fed. Pub. & Cmty. Def. & NAFD 6, App. 2a (U.S. No. 15-8544) (Aug. 18,

2016) (observing that, in on year, “[t]he average sentence imposed on career offenders

was 2.3 times that imposed on non-career offenders convicted of the same offense

types”) (emphasis omitted).

Moreover, it is estimated that over 1,100 of those 5,000 prisoners were

sentenced in the Eleventh Circuit. That is more than any other circuit. Indeed, only

the Fourth Circuit comes close to the thousand mark; no other circuit surpasses 500

prisoners. See Raybon, FPD Amicus Br. App. 3a–6a. Yet, as explained above, binding

Eleventh Circuit precedent precludes any of those prisoners from obtaining relief

under Johnson, Welch, and Beckles. To be sure, some will ultimately not be entitled

to relief; some will have drug offenses as predicates, and others will have crimes of

violence that remain so even without the residual clause. Nonetheless, some, like

Mr. Garrett, will have meritorious claims. Yet In re Griffin categorically bars such

claims from even being evaluated by a court.

The same dynamic is now also true in the Fourth, Sixth, and Tenth Circuits,

which have dismissed similar mandatory Guidelines claims based on Samuel

Johnson as untimely. See United States v. Greer, 881 F.3d 1241 (10th Cir. 2018);

Brown v. United States, 868 F.3d 297 (4th Cir. 2017); Raybon v. United States, 867

F.3d 625 (6th Cir. 2017), cert. denied 2018 WL 2184984 (2018). 6 In those circuits,

there are another estimated 1,600 pre-Booker career offenders who remain in prison,

and they too cannot obtain relief. Adding that figure to the 1,100 career offenders in

the Eleventh Circuit means that, just in those four circuits alone, there are about

2,700 federal prisoners who, under this Court’s precedents, may be serving unlawful

sentences.

This situation requires prompt resolution.

Indeed, because all of these

prisoners were sentenced before Booker, they have already been serving their

potentially-unlawful sentences for more than a dozen years. Confronted with a

similar dire situation, the federal courts—including this Court in Welch—have moved

expeditiously after Samuel Johnson to remedy illegal ACCA sentences. The same

haste is required here, lest this significant swath of illegal sentences go un-remedied.

Petitions for a writ of certiorari remain pending in Greer, No. 17-8775 (filed May 1,

2018) and Brown, No. 17-9276 (filed May 29, 2018). Another petition out of the

Fourth Circuit is pending in Smith v. United States, No. 17-9400 (filed June 13, 2018).

And two petitions out of the Eleventh Circuit—presenting the same questions as this

one—are pending in Wilson v. United States, No. 17-8746 (filed May 1, 2018), and

Lewis v. United States, No. 17-9490 (filed June 20, 2018).

Federal prisoners should not be required to serve an illegal sentence for a single day,

let alone years. Cf. Glover v. United States, 531 U.S. 198, 203 (2001) (observing that

even “a minimal amount of additional time in prison” is prejudicial). Without prompt

intervention by this Court, however, numerous prisoners will continue serving illegal

sentences without recourse.

This Court should not permit these potential

miscarriages of justice to persist.

IV.

THIS CASE SQUARELY PRESENTS BOTH QUESTIONS FOR REVIEW

This case affords the Court an opportunity to intervene.

The vagueness question presented here was fully litigated below. In the

district court, Mr. Garett repeatedly pressed his contention that the mandatory

Guidelines were subject to the vagueness prohibition, and therefore § 4B1.2(a)(2)’s

then-mandatory residual clause was unconstitutionally vague.

The government

argued the opposite, relying on In re Griffin’s holding to the contrary. And the district

court expressly agreed with the government, concluding that In re Griffin foreclosed

Mr. Garrett’s claim. See Appendix B.

Mr. Garret reiterated his contentions on appeal when requesting a COA from

the Eleventh Circuit. The Eleventh Circuit denied Mr. Garrett a COA, finding that

reasonable jurists could not debate the issue. The court of appeals presumably rested

its decision solely on In re Griffin. Compare Hamilton v. Secretary, Florida Dep’t of

Corr., 793 F.3d 1261, 1266 (11th Cir. 2015) (holding that no COA should issue where

a claim is foreclosed by binding circuit precedent), with See Upshaw v. United States,

No. 17-15742, 2018 WL 3090420, at *3 (11th Cir. June 22, 2018) (“The district court

correctly denied Upshaw’s career offender claim because his argument is foreclosed

by Griffin.”); Lewis v. United States, No. 17-13657, 2018 WL 2128612, at *1 (11th Cir.

May 9, 2018) (““[In re Griffin] forecloses Lewis’s argument that Section 4B1.2(a) is

unconstitutionally vague in light of [Samuel] Johnson.”); Wilson v. United States, 710

F. App’x 435, 436 (11th Cir. 2018). Accordingly, the question expressly left open in

Beckles is squarely presented for decision here.

The retroactivity question is also presented for decision here. In In re Griffin,

the Eleventh Circuit held not only that the mandatory Guidelines were immune from

vagueness, but also that the invalidation of § 4B1.2(a)(2)’s mandatory residual clause

would not retroactively affect cases on collateral review. 823 F.3d at 1355–56. That

decision considered, yet sought to distinguish, this Court’s decision in Welch. And

while the Eleventh Circuit did not expressly reiterate that retroactivity holding here,

it has previously clarified that In re Griffin constitutes binding circuit precedent. See

Upshaw 2018 WL 3090420, at *3; Lewis, 2018 WL 2128612, at *1; Wilson, 710 F.

App’x at 436.

Given In re Griffin’s precedential status, remanding for resolution of the

retroactivity question here would be futile. And resolving that question is needed not

only to resolve this case, but to provide critical guidance to the lower courts about

whether a ruling invalidating the mandatory residual clause would create a “new”

rule of constitutional law distinct from the substantive rule announced in Samuel

Johnson; and, if so, whether that new rule would also be entitled to retroactive effect,

thereby triggering a new statute of limitations under § 2255(f)(3), and satisfying the

gatekeeping requirements for successive motions in § 2255(h)(2).

Finally, this case is one of a few vehicles that will viably present the

mandatory Guidelines questions to the Court. All federal prisoners subject to the

mandatory Guidelines were sentenced over a decade ago. In the interim, most have

filed a § 2255 motion. That places them in the successive posture, obligating them to

obtain authorization from the court of appeals before filing another one. 28 U.S.C.

§ 2255(h). The problem is that, while there have been many decisions from the courts

of appeals denying successive applications in those cases, prisoners are statutorily

barred from seeking certiorari review of them. 28 U.S.C. § 2244(b)(3)(E). That is

precisely why certiorari was never sought in In re Griffin. And, of course, there are

no longer any mandatory Guidelines cases still on direct appeal. Thus, other than an

original habeas petition, the only way for this Court to decide the mandatory

Guidelines question left open in Beckles is to do so by granting certiorari from the

denial of an initial § 2255 motion like this one. Again, that question is perfectly

preserved and squarely presented here.

The Court should decide it and the

accompanying retroactivity question along with it.

CONCLUSION

For the above reasons, this Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

DONNA LEE ELM

FEDERAL PUBLIC DEFENDER

Isl

CON

Counsel of Record

RESEARCH AND WRITING ATTORNEY

201 S. Orange Ave., Ste. 300

Orlando, Florida 32801

(407) 648-633.8

Conrad_Kahn@fd.org

Counsel for Petitioner

Appendix A

Case: 18-10806

Date Filed: 05/01/2018

Page: 1 of 1

Appendix B

Case 6:16-cv-01083-GKS-TBS Document 16 Filed 01/12/18 Page 1 of 5 PageID 87

Case 6:16-cv-01083-GKS-TBS Document 16 Filed 01/12/18 Page 2 of 5 PageID 88

Case 6:16-cv-01083-GKS-TBS Document 16 Filed 01/12/18 Page 3 of 5 PageID 89

Case 6:16-cv-01083-GKS-TBS Document 16 Filed 01/12/18 Page 4 of 5 PageID 90

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