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August 13, 2015

Split Eleventh Circuit panel splits from Seventh Circuit approach on Johnson retroactivity

I had an inkling it might not take too long for lower courts to become divided on what the Supreme Court's big Johnson Armed Career Criminal Act ruling, which declared the residual clause of ACCA was void for vagueness, could and should mean for long-ago imposed sentences.  And, sure enough, less than seven weeks after the Johnson ruling, we already have a big circuit split.

As detailed in this post last week, the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here), decided that a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 could bring a new, successor 2255 motion based on the Johnson ruling.  But, now as flagged effective via this post at the "Southern District of Florida" blog, a divided three-judge panel of the the Eleventh Circuit had a different take on this issue in In re Rivero, No. 15-13089 (11th Cir. Aug. 12, 2015) (available here). Here is a key passage from the marjority opinion in Rivero:

We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015).  In Price, the Seventh Circuit explained that “[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review” because “[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him.”  Id. at *7.  We disagree.  We can “escap[e] th[at] logical conclusion” because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.

Our dissenting colleague assumes that the new rule announced in Johnson also applies to the residual clause of the career offender enhancement in the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), but that assumption makes clear that precedents of the Supreme Court do not “necessarily dictate,” In re Anderson, 396 F.3d at 1339 (internal quotation marks and citation omitted), that Rivero may file his second or successive motion to vacate, set aside, or correct his sentence.  See Dissenting Op. at 15 n.2.  The Supreme Court has never held that the Sentencing Guidelines are subject to a vagueness challenge. And four of our sister circuits have held that the Sentencing 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.” United States v. Tichenor, 683 F.3d 358, 363–66, 365 n.3 (7th Cir. 2012); see also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. Wivell, 893 F.2d 156, 159–160 (8th Cir. 1990).  But the absence of Supreme Court precedent provides an alternative ground for why we must deny Rivero’s application for leave to file a second or successive motion.

Especially because the Justice Department appears to be supporting Johnson retroactivity, I suspect we may end up with more circuits lining up behind Price than behind Rivero in the weeks ahead. But whatever transpires in other lower courts, it is now already clear that SCOTUS is going to need to take up Johnson's application before too long.

Some prior related posts:

August 13, 2015 at 09:01 AM | Permalink


It seems the only way the issue will come before the court by way of certiorari is if a prisoner raises the issue in a first § 2255 motion. This is because of the limitation imposed by 28 USC 2244(b)(3)(E), which provides that "The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari."

Posted by: Brandon Sample | Aug 13, 2015 12:34:51 PM

Good point, Brandon, though a defendant like Rivero might also bring an original habeas petition to SCOTUS and raise the issue that way.

Posted by: Doug B. | Aug 13, 2015 2:33:53 PM

Hello I've been looking online for some help, and your site is always so informative I wondered if I could ask a Question. Is there anyway to find a Pro Se Lawyer who would be willing to represent a Federal Inmate convicted in the Northern District in 1997 (11th District) for filing of a FIRST 2255. ACCA was used to increase sentence from 10years to 20 years. Case has been reviewed by a PD who was not able to help as they are in the wrong district to help, but they said case looked good for Johnson ruling. Inmate is reluctant to file 2255 on his own as if he does and something is wrong there wont be a second chance for the 2255. So what I'm asking is, is there anyway to locate an attorney that might be willing to help this inmate. He has been incarcerated 20 years having to complete a 5 year state sentence before starting the 21.6 year federal sentence. I'm just a laymen so please excuse anything not worded right. Thank you for your time.

Posted by: Susan Morin | Aug 14, 2015 7:39:45 PM

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