Petition for Writ of Certiorari — Michael Whisby, Petitioner v. United States

Supreme Court briefOct 16, 2018

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No. _____

IN THE

Supreme Court of the United States

______________

MICHAEL WHISBY,

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

______________

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

ARUN RAVINDRAN

Counsel of Record

ASS’T FED. PUBLIC DEFENDER

150 W. Flagler St., Suite 1700

Miami, FL 33130-1555

(305) 530-7000

Arun Ravindran@fd.org

Counsel for Petitioner

October 16, 2018

QUESTIONS PRESENTED

In Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), this Court

declared unconstitutionally vague the residual clause of the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). In Welch v. United States, 578 U.S. __,

136 S. Ct. 1257 (2016), this Court held that Johnson announced a new, substantive

rule of constitutional law that had retroactive effect in cases on collateral review.

In Beckles v. United States, 580 U.S. __, 137 S. Ct. 886 (2017), this Court held

that an identical residual clause contained in the Career Offender provision of the

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

The Court reasoned that the advisory Guidelines were not subject to the

constitutional vagueness prohibition at all because, unlike the ACCA, they do not

“fix the permissible range of sentences.” Beckles, 137 S. Ct. at 892.

However, the Court in Beckles “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).

Additionally, this term, this Court has taken up Petition for Writ of

Certiorari, Stokeling v. United States, No. 17-5554, whether a Florida robbery

offense that includes “as an element” the common law requirement of overcoming

“victim resistance” is categorically a “violent felony” under the Armed Career

Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically

interpreted by state appellate courts to require only slight force to overcome

resistance. This petition implicates that issue as well.

The questions presented are:

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

vis-à-vis defendants sentenced under the pre-Booker mandatory Guidelines.

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

has retroactive effect in cases on collateral review.

Whether a Florida robbery offense that includes “as an element” the

common law requirement of overcoming “victim resistance” is categorically a

“violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i),

when the offense has been specifically interpreted by state appellate courts to

require only slight force to overcome resistance.

PARTIES TO THE PROCEEDINGS

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

iii

TABLE OF CONTENTS

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

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

TABLE OF AUTHORITIES ....................................................................................... viii

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 ............................................................ 9

THE CIRCUITS ARE DIVIDED ON THE QUESTIONS PRESENTED .......................... 9

The Seventh Circuit Has Declared the Guidelines’ Mandatory

Residual Clause Retroactively Void for Vagueness ............................ 9

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

THE CASE ALSO IMPLICATES THE MATTERS BEING TAKEN UP IN Petition

for Writ of Certiorari, Stokeling v. United States, No. 17-5554............ 29

CONCLUSION............................................................................................................. 30

TABLE OF APPENDICES

Appendix A: Opinion of the U.S. Court of Appeals for the

Eleventh Circuit (July 20, 2018)............................................................ 1a

Appendix B: Order of the U.S. District Court for the

Southern District of Florida Denying 28 U.S.C. § 2255 Motion

and Granting Certificate of Appealability (March 21, 2018)................ 5a

TABLE OF AUTHORITIES

CASES

Beckles v. United States,

580 U.S. __, 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) ............................................................................................ 16, 17

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

Hawkins v. United States,

706 F.3d 820 (7th Cir. 2013) .................................................................................... 16

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) .................................................................................................. 17

Johnson v. United States,

576 U.S. __, 135 S. Ct. 2551 (2015) .................................................................. passim

Koon v. United States,

518 U.S. 81 (1996) .................................................................................................... 16

vii

Miller v. Florida,

482 U.S. 423 (1987) .................................................................................................. 24

Mistretta v. United States,

488 U.S. 361 (1989) .................................................................................................. 15

Petition for Writ of Certiorari,

Stokeling v. United States, No. 17-5554.............................................................. i,6,9,29

Raybon v. United States,

867 F.3d 625 (6th Cir. 2017) ............................................................................... 24,25

Sessions v. Dimaya,

584 U.S. __, 138 S. Ct. 1204 (2018) ............................................................................ 9

Stinson v. United States,

508 U.S. 36 (1993) .............................................................................................. 15, 16

United States v. Batchelder,

442 U.S. 114 (1979) .................................................................................................. 21

United States v. Booker,

543 U.S. 220 (2005) .......................................................................................... passim

United States v. Greer,

881 F.3d 1241 (10th Cir. 2018) ................................................................................ 25

Welch v. United States,

578 U.S. __, 136 S. Ct. 1257 (2016) .................................................................. passim

viii

STATUTES

18 U.S.C § 16(b) ........................................................................................................ 9,10

18 U.S.C. § 924(c) ........................................................................................................... 6

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

18 U.S.C. § 3553(a) ................................................................................................. 14,16

18 U.S.C. § 3553(b) ...................................................................................................... 16

18 U.S.C. § 3553(e)....................................................................................................... 16

18 U.S.C. § 3553(f) ....................................................................................................... 16

21 U.S.C. § 846 ............................................................................................................... 6

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

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

28 U.S.C. § 2244(b)(3)(E) ......................................................................................... 5, 28

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

28 U.S.C. § 2255(f)(3) ................................................................................................... 28

28 U.S.C. § 2255(h) ...................................................................................................... 28

SENTENCING GUIDELINES

U.S.S.G. § 4B1.1 cmt. backg’d (2015) ............................................................................ 3

U.S.S.G. § 4B1.1(b) ........................................................................................................ 3

U.S.S.G. § 4B1.2(a)(2) .......................................................................................... passim

U.S.S.G. app. C, amend. 782 (Nov. 1, 2014) ................................................................. 7

U.S.S.G. app. C, amend. 788 (Nov. 1, 2014) ................................................................. 7

U.S.S.G. app. C, amend. 798 (Aug. 1, 2016) ................................................................. 4

OTHER AUTHORITIES

Beckles, 137 S. Ct. 886,

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

(U.S. No. 15-8544) (Aug. 18, 2016)........................................................................... 25

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

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

(6th Cir. No. 16-2522) (Oct. 18, 2017) ...................................................................... 25

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully seeks a writ of certiorari to review a decision of the

United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The Eleventh Circuit’s opinion is unpublished and reproduced as Appendix A.

App. 1a.

The district court’s order denying the 28 U.S.C. § 2255 motion is

unreported but reproduced as Appendix B. App. 5a.

JURISDICTION

The court of appeals issued its decision on July 20, 2018. This Court has

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

LEGAL PROVISIONS INVOLVED

The Armed Career Criminal Act 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 Petitioner’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(1)(ii) (1993).

STATEMENT OF THE CASE

A. LEGAL BACKGROUND

The Armed Career Criminal Act (“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 a total of three “violent

felonies” or “serious drug offenses.” 18 U.S.C. § 924(e). For purposes of the ACCA,

“violent felony” is defined as, inter alia, 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 Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), the Court

held that the ACCA’s residual clause was unconstitutionally vague.

The Court

explained:

make

“Two

features

unconstitutionally vague.”

the

residual

Id. at 2557.

clause

conspire

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 crime” 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

judges,”

“produc[ing]

unpredictability

and

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

In Welch v. United States, 578 U.S. __, 136 S. Ct. 1257 (2016), the Court held

that Johnson announced a new, substantive rule of constitutional law, and it

therefore had retroactive effect to cases on collateral review. 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. at 1264–65 (citation omitted). The Court

concluded that, “[u]nder th[at] framework, the rule announced in 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. at 1265.

The

Career

Offender

provision

the

Sentencing

Guidelines

implements a congressional mandate to assure 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 Petitioner’s sentencing in

January 1994, 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(1)(ii) (1993). (emphasis added). 1 The italicized language in the

Career Offender Guideline was perfectly identical to the ACCA residual clause that

Johnson invalidated.

As a result, thousands of federal prisoners who had been sentenced as career

offenders sought to collaterally challenge their sentences under 28 U.S.C. § 2255 in

light of Johnson. Some of those prisoners had been sentenced before this Court’s

decision in United States v. Booker, 543 U.S. 220 (2005) rendered the Guidelines

advisory.

Michael Whisby was one such inmate. He filed a pro se § 2255 motion based

on Johnson and was later appointed counsel who supplemented his petition. See

11th Cir. No. 16-12012. Relying on In re Griffin, 823 F.3d 1350 (11th Cir. 2016), the

district court denied his petition on grounds that the Sentencing Guidelines were

not subject to vagueness challenges.

Shortly after 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).

In Beckles v. United States, 580 U.S. __, 137 S. Ct. 886 (2017) the

Court had to decide, inter alia, whether Johnson rendered § 4B1.2(a)(2)’s residual

clause void for vagueness, and, if so, whether that holding would have retroactive

effect in cases 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 prohibition on vagueness at all, and therefore the residual

clause in § 4B1.2(a)(2) 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 subject to its holding from the preBooker mandatory Guidelines. As a result, Justice Sotomayor’s separate opinion

made explicit what was implicit in the majority opinion—namely, 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 squarely presents that question left open in Beckles.

Additionally, because one of Mr. Whisby’s qualifying career offender predicate

offenses was a 1984 Florida robbery, the case implicates the exact question this

Court is taking up in Stokeling, namely whether Florida robbery is a categorically

violent offense.

B. PROCEDURAL BACKGROUND

A jury in the Southern District of Florida convicted Mr. Whisby and his

co-defendant of conspiracy to possess with intent to distribute a detectable amount

of cocaine in violation of 21 U.S.C. § 846 and possession of a firearm in furtherance

of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

The presentence investigation report (“PSR”) found Mr. Whisby was a

U.S.S.G. § 4B1.1 career offender and thus that the advisory guidelines range of

imprisonment was 360 months to life.

The PSR listed the following offenses as

qualifying predicates for the career offender enhancement: (1) a January 6 1984,

conviction for robbery and kidnapping; (2) an October 14, 1987 conviction for

battery on a police officer; and (3) a January 29, 1988 conviction for possession with

intent to sell cocaine.

Mr. Whisby was sentenced on January 28, 1994, when the

Sentencing Guidelines were mandatory. The Court imposed a life sentence as to

the drug possession charge and a consecutive 5 year sentence as to the firearm

charge.

Mr. Whisby timely filed a petition to vacate his sentence pursuant to

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

He alleged that, in light of

Johnson (and Welch), he was no longer a career offender and thus had been illegally

sentenced, in violation of due process.

He argued that Johnson retroactively

invalidated the then-mandatory residual clause of § 4B1.2(a)(2). And he argued,

inter alia, that the robbery conviction used to support his career-offender

enhancement were no longer a “crime of violence” under the remaining definitions

in § 4B1.2(a).

Mr. Whisby sought to stay the case pending this Court’s ruling in Beckles v.

United States, 137 S.Ct. 886 (2017), he arguing that Johnson’s rule invalidating the

18 U.S.C. § 924(e)’s residual clause equally applied to a similarly worded residual

clause in U.S.S.G. § 4B1.2(a)(2). Id. The district court granted the stay, but after

the Beckles decision, the Magistrate Judge issued a Report and Recommendation

recommending that the stay be lifted and the petition be denied as untimely. Mr.

Whisby timely objected on grounds that the Beckles holding was limited only to

advisory guidelines and that since he was sentenced in 1994 when the guidelines

were mandatory, the § 4B1.2(a)(2) residual clause was void for vagueness.

The district court declined to adopt the first R&R and instructed the

Magistrate to reissue a Report which reached the claim’s merits.

Thereafter, the

Magistrate Judge ordered the parties to submit additional briefing. Ultimately the

Magistrate Judge issued another Report and Recommendation (“the second Report”)

wherein he recommended the petition be dismissed because Mr. Whisby failed to

meet his burden of proof and because he had procedurally defaulted his claim. The

district court adopted the second Report’s recommendation over Whisby’s timely

objection.

In so doing, district court made the following findings: (1) because Beckles did

not reach whether mandatory guidelines were susceptible to a vagueness challenge,

pursuant to In re Griffin, 823 F.3d 1350, 1355 (11th Cir. 2016) the sentencing

guidelines – even mandatory guidelines – were not subject to vagueness challenges;

(2) that even if the court were to reach the merits, Mr. Whisby’s claim would still

fail because his cocaine sale and robbery convictions were career offender qualifying

predicates; and (3) a certificate of appealability (“COA”) should not issue.

Mr. Whisby presented the same issues on the appeal of the denial of the

COA, arguing that reasonable jurists could disagree whether mandatory guidelines

were subject to vagueness challenges and whether Florida robbery constituted a

crime of violence pursuant to U.S.S.G. § 4B1.1. Specifically, Whisby reiterated his

argument that Beckles’ holding was expressly limited to the advisory Guidelines; its

reasoning compelled the conclusion that the mandatory Guidelines fixed the

permissible range of sentences, and thus, unlike the advisory Guidelines, were

subject to the prohibition on vagueness.

The court of appeals affirmed the district court’s denial of COA. The court of

appeals’ denial merely stated that Mr. Whisby had not shown that reasonable

jurists would find the denial of his § 2255 motion debatable.

REASONS FOR GRANTING THE PETITION

THE CIRCUITS ARE DIVIDED ON THE QUESTIONS PRESENTED AND THE

SUPREME COURT IS PRESENTLY TAKING UP WHETHER FLORIDA

ROBBERY IS A VIOLENT FELONY

The circuits are divided on whether Johnson invalidates the mandatory, preBooker residual clause of the Guidelines, and, if so, whether that invalidation would

have retroactive effect on collateral review. The Seventh Circuit has answered both

questions affirmatively.

The Eleventh Circuit has answered both negatively.

Whether Florida Robbery is Violent Felony under the ACCA is presently being

reviewed in Stokeling.

A. The Seventh Circuit Has Declared the Guidelines’ Mandatory

Residual Clause Retroactively Void for Vagueness

In Cross v. United States, __ F.3d __, 2018 WL 2730774 (7th Cir. June

7, 2018), a unanimous panel of the Seventh Circuit held that “the residual clause of

the [mandatory] guidelines suffers from the same indeterminacy” as the ACCA’s

residual clause struck down in Johnson. Id. at *7. 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 *8.

“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 in light of Sessions v. Dimaya,

584 U.S. __, 138 S. Ct. 1204 (2018)—declaring 18 U.S.C. § 16(b) void for vagueness

in light of Johnson—because “the textual differences between the ACCA and

guidelines pale in comparison to the differences between the ACCA and section 16.”

Id. at *10. And concerns about the categorical approach in Dimaya were expressed

only by a minority of the Court and were limited only to § 16(b). Id. at *10–11.

Because the residual clause in the Guidelines suffered from the same

indeterminacy as the residual clause in the ACCA, the Court proceeded to

determine whether “the constitutional requirement of clarity applies to the

mandatory guidelines.”

Id. at *7.

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 *11–12.

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 *12–13. “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 *13. Thus, the

court of appeals “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 proceeded to address “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 *13–14. It reasoned: “The same logic justifies

treating Johnson as substantive, and therefore retroactive, when applied to the

mandatory guidelines.” Id. at *14. “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 court “h[e]ld that [movants] are entitled to relief from their careeroffender classifications, based on the Supreme Court’s decision in 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

Binding Eleventh Circuit precedent categorically precludes such relief.

In 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.” In re Griffin, 823 F.3d 1350, 1354 (11th Cir.

2016). 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 court 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 court 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. And, it further noted, the PSI

afforded adequate notice of the career-offender enhancement. Id. at 1355.

The court of appeals alternatively held that, even if the mandatory

residual clause was 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.

THE ELEVENTH CIRCUIT’S DECISION IN IN RE GRIFFIN CONTRAVENES

THIS COURT’S PRECEDENTS

II.

In this case, the court of appeals relied on its pre-Beckles decision in In re

Griffin. App. 2a–4a. That decision’s pair of holdings—i.e., that the mandatory

Guidelines cannot be unconstitutionally vague, and that the invalidation of

§ 4B1.2(a)(2)’s mandatory residual clause would not have retroactive effect—

contravene this Court’s precedents in Beckles and Welch, respectively.

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 instead merely guide the exercise of sentencing

discretion under 18 U.S.C. § 3553(a). Id. at 892, 894.

Due to their advisory nature, the Court concluded that they 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 exact 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, the Court was forced to confront (rather than avoid) the Sixth

Amendment challenge to the 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. It 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 Court in Booker 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) (substantial-assistance 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 did not merely provide the

sentencing court with advice, but rather mandated 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 Johnson. In this case, for example,

the sentencing court had no intelligible standard by which to determine whether

Petitioner’s prior offenses constituted “crimes of violence” under the residual clause.

Rather

than

guide

the

sentencing

court’s

discretion,

that

determination established the fixed range of permissible sentences.

standardless

Permitting

judges to set that range without any 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 was permitted to 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 Petitioner 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 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 it conduct the key “inquiry”

that Beckles now requires—i.e., 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 Johnson had already made clear:

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 Johnson, 135 S. Ct. at 2557.

The court of appeals 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 absolutely 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 made clear 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. Rather, 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 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 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 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, “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). Rather, “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 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, inter alia, 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.” In re Griffin, 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 wholly unpersuasive, because it neglects

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

at 234. As explained at length 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 correctly-calculated 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 statutory range, yet

they did not render Johnson any less substantive. 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 arguments above, many federal prisoners are currently serving

unlawful sentences. Accordingly to one recent estimate, there are approximately

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 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 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 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). In those circuits, there are

another estimated 1,600 pre-Booker career offenders who remain in prison, and they

too are unable to 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

approximately 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 Johnson in order to remedy illegal ACCA sentences. The

same haste is required here, lest this significant swath of illegal sentences go unremedied. 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).

Absent prompt intervention by this Court, however, numerous prisoners will be

forced to 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 extensively litigated

below. In the district court, Petitioner 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 repeatedly 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 Petitioner’s § 2255 motion. App. 7a–8a.

Having received a COA on whether Johnson applies to the mandatory

Guidelines, App. 8a–9a, Petitioner reiterated his contentions on appeal, setting

forth his arguments in even greater detail.

See Pet. C.A. Br. 10–33.

The

government did the same. See U.S. C.A. Br. 12–29. The court of appeals squarely

held that In re Griffin remained binding circuit precedent even after Beckles, and

therefore

its

holding—that

the

mandatory

Guidelines

could

unconstitutionally vague—“foreclose[d]” Petitioner’s § 2255 motion.

not

App. 2a–4a.

The court of appeals rested its decision solely on that basis. Id. 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 have retroactive effect in 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 court of appeals did not need to expressly reiterate

that retroactivity holding here, it made clear that In re Griffin constitutes binding

circuit precedent. App. 3a–4a. Given In re Griffin’s precedential status, remanding

for resolution of the retroactivity question here would be futile. And resolving that

question is necessary 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 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 limited number of 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, the vast majority of them 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, 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.

THE CASE ALSO IMPLICATES THE MATTERS BEING TAKEN UP IN

STOKELING V. UNITED STATES, 17-5554.

This term, this Court will decide whether a state robbery offense that

includes “as an element” the common law requirement of overcoming “victim

resistance” is categorically a “violent felony” under the Armed Career Criminal Act,

18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by

state appellate courts to require only slight force to overcome resistance.

Mr.

Whisby was given an enhanced Career Offender sentence, in part, on the basis of a

1984 Florida robbery conviction. Mr. Whisby maintains his conviction is not a §

4B1.2 “crime of violence” and thus that his not a Career Offender.

CONCLUSION

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

certiorari.

Respectfully submitted,

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

/s/ Arun Ravindran

Arun Ravindran

Counsel of Record

ASS’T FED. PUBLIC DEFENDER

150 W. Flagler St., Suite 1700

Miami, FL 33130-1555

(305) 530-7000

Arun_Ravindran@fd.org

Counsel for Petitioner

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