Petition for Writ of Certiorari — Horace Vonche Jordan, Petitioner v. United States

Supreme Court briefNov 5, 2018

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No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

___________________________________________________________

HORACE V. JORDAN,

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 WRIT OF CERTIORARI

______________________________________________________________

RANDOLPH P. MURRELL

FEDERAL PUBLIC DEFENDER

*MEGAN SAILLANT

ASSISTANT FEDERAL PUBLIC DEFENDER

Florida Bar No. 0042092

101 SE 2nd Place, Suite 112

Gainesville, Florida 32601

Telephone: (352) 373-5823

FAX: (352) 373-7644

Attorney for Petitioner

* Counsel of Record

November 5, 2018

QUESTIONS PRESENTED

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

residual clause in the Career Offender provision of the Sentencing Guidelines was

not unconstitutionally vague. See USSG § 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.

The Beckles Court, however, “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. Jordan moved to vacate his sentence under 28 U.S.C. § 2255, arguing that

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

the mandatory Guidelines, is unconstitutional. The district court denied the motion,

holding that Johnson does not apply to the mandatory Guidelines, and both the

district court and the Eleventh Circuit denied Mr. Jordan a certificate of appealability

(COA).

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

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

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

of whether reasonable jurists can debate the following issues:

Whether USSG § 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.

Mr. Jordan is aware of at least four other cases pending before this Court that

present similar issues. See Cottman v. United States, No. 17-7563 (filed Jan. 22,

2018); Greer v. United States, No. 17-8775 (filed May 1, 2018); Garrett v. United

States, No. 18-5422 (filed Jul. 30, 2018); and Allen v. United States, No. 18-5939 (filed

Aug. 20, 2018).

PARTIES INVOLVED

The parties identified in the caption of this case are the only parties before the

Court.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES INVOLVED ................................................................................................... ii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION ...................................................................................................................... 1

OPINION BELOW......................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

STATUTORY PROVISIONS INVOLVED .................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 3

REASONS FOR GRANTING THE WRIT .................................................................... 9

THE CIRCUITS ARE OPENLY 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 the Guidelines’ Mandatory

Residual Clause is Not Void for Vagueness and 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............................................................................................................. 28

iii

TABLE OF CONTENTS – cont’d

APPENDIX

Horace Vonche Jordan v. United States of America, No. 17-14550-D

Order Denying Motion for Reconsideration

(11th Cir. Aug. 6, 2018) ............................................................................. A-1

Horace Vonche Jordan v. United States of America, No. 17-14550-D

Order Denying Motion for Certificate of Appealability

(11th Cir. June 13, 2018) ........................................................................... A-2

United States of America v. Jordan,

No. 3:01-CR-78-LAC-CJK

Order Denying Motion

(N.D. Fla. Oct. 9, 2017) .............................................................................. A-3

United States of America v. Jordan,

No. 3:01-CR-78-LAC-CJK

Report and Recommendation

(N.D. Fla. Sept. 28, 2017) .......................................................................... A-4

TABLE OF AUTHORITIES

Cases

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) ................................................................. 4

Burns v. United States, 501 U.S. 129 (1991) ........................................................ 15, 17

Cross v. United States, 892 F.3d 288 (7th Cir. 2018) ....................................... 9, 10, 11

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, 135 S. Ct. 2551 (2015)............................................ i, 3, 4, 18

Koon v. United States, 518 U.S. 81 (1996) .................................................................. 16

Lewis v. United States, 2018 WL 2128612 (11th Cir. May 9, 2018) .......................... 27

Miller v. Florida, 482 U.S. 423 (1987) ........................................................................ 24

Mistretta v. United States, 488 U.S. 361 (1989) ......................................................... 15

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) .............................................................. 15

TABLE OF AUTHORITIES - cont'd

Cases

United States v. Batchelder, 442 U.S. 114 (1979) ....................................................... 20

United States v. Booker, 543 U.S. 220 (2005) .............................................. i, 15, 16, 23

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

Upshaw v. United States, 2018 WL 3090420 (11th Cir. June 22, 2018) ................... 27

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

Wilson v. United States, 710 F. App’x 436 (11th Cir. 2018) ....................................... 27

Statutes

18 U.S.C. § 3553(b) ...................................................................................................... 15

18 U.S.C. § 3553(e)................................................................................................. 16, 23

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

18 U.S.C. § 924(a)(2) ...................................................................................................... 3

18 U.S.C. § 924(e)........................................................................................................... 3

28 U.S.C. § 2244(b)(3)(E) ......................................................................................... 6, 28

28 U.S.C. § 2255(h) ...................................................................................................... 27

28 U.S.C. § 994(h) .................................................................................................... 4, 16

Other Authorities

USSG § 4B1.1............................................................................................................. 4, 5

USSG § 4B1.2(a)(2) ......................................................................................................... i

USSG § 4B1.2(a)(2) (2001)....................................................................................... 5, 18

PETITION FOR WRIT OF CERTIORARI

In this post-conviction proceeding under 28 U.S.C. § 2255, Petitioner Horace

Vonche Jordan respectfully prays that a writ of certiorari issue to review the ruling

of the United States Court of Appeals for the Eleventh Circuit, denying a COA on the

claims set forth here, and subsequently entering judgment against Mr. Jordan.

OPINION BELOW

The Order of the Eleventh Circuit Court of Appeals denying Mr. Jordan’s

request for COA was entered in Jordan v. United States of America, No. 17-4550-D

(11th Cir. June 13, 2018). (App. A-2). Rehearing was denied on August 6, 2018. (App.

A-1).

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1) and 28 U.S.C.

§ 2101(c). The Eleventh Circuit entered judgment against Mr. Jordan on August 6,

2018. This Petition is timely filed.

STATUTORY PROVISIONS INVOLVED

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

arson, or extortion, involves the 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 referred to as the “residual clause.”

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

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

violence” in 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.” USSG § 4B1.2(a)(2) (2001).

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 prior convictions for “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 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 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 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 USSG

§ 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 USSG § 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.” USSG § 4B1.1. At the time of Mr. Jordan’s sentencing in 2001, 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.” USSG § 4B1.2(a)(2)

(2001) (emphasis added).1 The italicized language in the Career Offender Guideline

was identical to the ACCA residual clause that 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 Johnson. Some of those prisoners had been

sentenced before the 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).

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

to file a successive § 2255 motion. See 11th Cir. No. 16-12012. Without appointing

counsel or holding oral argument, the Eleventh Circuit published an order denying

1 Shortly after Johnson, the Sentencing Commission amended § 4B1.2 and deleted its

residual clause. USSG, app. C., amend 798 (Aug. 1, 2016). All references here are to

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

the application. In re Griffin, 823 F.3d 1350 (11th Cir. 2016). In doing so, the court

issued two holdings. First, it held “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 arostampse 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, the Court granted certiorari in Beckles to decide,

among other things, whether 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 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. Beckles, 137 S. Ct. 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

2 Mr. Griffin nonetheless re-filed two subsequent Johnson applications with the court

of appeals – one with counseled briefing, urging reconsideration of In re Griffin; and

one after the Court’s decision in 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 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.

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

In August 2001, Mr. Jordan pled guilty to one count of conspiracy to possess

with intent to distribute 500 grams or more of cocaine and five grams or more of

cocaine base, and two counts of possession with intent to distribute cocaine. At

sentencing, he was found to be a career offender based on: (1) a 1991 conviction for

carrying a concealed weapon and attempted possession of a firearm during the

commission of a felony; and (2) a 1991 conviction for attempted second degree murder

and carrying a concealed firearm. Because of the enhancement, his total offense level

was 34, his criminal history category was VI, and his guideline range was 262 to 327

months. On December 20, 2001, he was sentenced to 262 months’ imprisonment. His

convictions and sentences were affirmed on appeal.

On June 24, 2016, Mr. Jordan moved to vacate his sentence under § 2255,

arguing that based on Johnson, his career offender sentence is unconstitutional.

According to Mr. Jordan his prior conviction for carrying a concealed firearm was no

longer a qualifying prior offense. On August 30, 2016, the district court stayed the

proceedings pending this Court’s decision in Beckles. On March 6, 2017, this Court

decided Beckles, holding that 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 March 6, 2017, the government filed a response to Mr. Jordan’s original

motion, arguing the decision in Beckles foreclosed relief for Mr. Jordan. Mr. Jordan

filed a reply, arguing that Beckles did not apply to defendants sentenced according to

the mandatory Guidelines, and that the Eleventh Circuit’s decision in In re Griffin

was no longer good law. Mr. Jordan then argued that without the Guidelines’ residual

clause, he could not be considered a career offender because at least one of his prior

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

On October 10, 2017, the district court denied Mr. Jordan’s § 2255 motion,

finding the motion was untimely because Johnson does not apply to the mandatory

guidelines. The district court also denied Mr. Jordan a COA. Mr. Jordan moved for a

COA in the Eleventh Circuit, and on June 13, 2018, the court denied the motion.

(App. A-2). The Eleventh Circuit subsequently denied Mr. Jordan’s motion for

reconsideration. (App. A-1).

REASONS FOR GRANTING THE PETITION

THE CIRCUITS ARE DIVIDED ON THE QUESTIONS PRESENTED.

The circuits are divided on whether Johnson invalidates the mandatory preBooker 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

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

299. The court explained that the “ordinary case” approach and the “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 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’ and Davis’

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 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 “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 “[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 on In re Griffin. (App. A-4). That decision’s

holding — 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 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 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) (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 careeroffender 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 Johnson. Here, for example, the sentencing court

had no intelligible standard by which to determine whether Mr. Jordan’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. Jordan 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 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 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 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 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). Instead, “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, 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 ignores the fact

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, a 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 highend 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 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 one 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.

Jordan, 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).3 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

3 A petition for writ of certiorari remains pending in Greer, No. 17-8775 (filed May 1,

2018).

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

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

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. Jordan 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. Jordan’s claim. (App. A-4). The Eleventh Circuit also denied Mr. Jordan a COA,

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

its decision solely on In re Griffin. 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 v. United States, 2018 WL 3090420, at *3 (11th Cir. June 22,

2018); Lewis v. United States, 2018 WL 2128612, at *1 (11th Cir. May 9, 2018); Wilson

v. United States, 710 F. App’x 436 (11th Cir. 2018).

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 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

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