                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0086n.06

                                           No. 18-3298

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                               Feb 21, 2019
                                                                               DEBORAH S. HUNT, Clerk
 JAMES R. CHAMBERS,                                      )
                                                         )
        Petitioner-Appellant,                            )
                                                                 ON APPEAL FROM THE
                                                         )
                                                                 UNITED STATES DISTRICT
 v.                                                      )
                                                                 COURT FOR THE
                                                         )
                                                                 NORTHERN DISTRICT OF
 UNITED STATES OF AMERICA,                               )
                                                                 OHIO
                                                         )
        Respondent-Appellee.                             )
                                                         )

BEFORE: MOORE, GIBBONS, and COOK, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. James Chambers pled guilty to federal bank

robbery in June 2001, and the district court sentenced him as a career offender under the United

States Sentencing Guidelines. Fourteen years later, the Supreme Court held in Johnson v. United

States that the residual clause of the Armed Career Criminal Act was void for vagueness. 135 S.

Ct. 2551, 2563 (2015). In 2016, Chambers filed a motion for relief from his career-offender

sentence under 28 U.S.C. § 2255, seeking relief based on Johnson because he was sentenced under

the identically-worded Guidelines residual clause. Chambers argued that his 2016 motion satisfied

the one-year statute of limitations under § 2255(f) because his motion asserts a right that the

Supreme Court recognized in 2015 in Johnson and made retroactively applicable to cases on

collateral review in Welch v. United States, 136 S. Ct. 1257, 1265 (2016). The district court denied

Chambers’s motion. Chambers now appeals that denial.

       When Chambers was sentenced in 2001, the Guidelines were mandatory. The Supreme

Court’s decision in United States v. Booker rendered them advisory. 543 U.S. 220, 245 (2005).
No. 18-3298, Chambers v. United States


The Supreme Court has declared that Johnson’s holding does not extend to those sentenced under

the Guidelines residual clause in the post-Booker era. Beckles v. United States, 137 S. Ct. 886,

892 (2017). We have held that Johnson’s holding does not extend to those sentenced under the

Guidelines residual clause in the pre-Booker era either. Raybon v. United States, 867 F.3d 625

(6th Cir. 2017). Because Chambers cannot avail himself of Johnson’s holding, we cannot use the

date of that decision as a point from which to measure his one-year limitations period. As such,

his 2016 motion is untimely § 2255(f). Therefore, we affirm.

                                                    I.

       In June 2001, James Chambers pled guilty to five counts of a six-count indictment for

unarmed bank robbery in violation of 18 U.S.C. § 2133(a). The government argued that Chambers

should be sentenced as a career offender under the Guidelines. To qualify as a career offender, a

defendant must have committed at least two prior felony convictions of either a crime of violence

or a controlled substance offense. U.S.S.G. § 4B1.1(a). Whether a prior felony conviction is a

“crime of violence” is governed by § 4B1.2, which, at the time of Chambers’s sentencing, provided

as follows:

       (a) The term “crime of violence” means any offense under federal or state law,
           punishable by imprisonment for a term exceeding one year, that—

              (1) has as an element the use, attempted use, or threatened use of physical force
                  against the person of another, or

              (2) 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 (2004).

       The government argued that three of Chambers’s prior convictions should qualify as crimes

of violence: burglary with firearm specifications, aggravated robbery, and escape with the use of

force. At sentencing, the district court found that the escape and aggravated robbery convictions
                                                  -2-
No. 18-3298, Chambers v. United States


qualified as crimes of violence under Sixth Circuit precedent, but that the burglary conviction did

not. The district court designated Chambers as a career offender under § 4B1.1 and sentenced him

to 151 months’ imprisonment.

       In June 2016, Chambers filed a motion seeking post-conviction collateral relief under

28 U.S.C. § 2255. In light of the Supreme Court’s decision in Johnson that the residual clause in

the Armed Career Criminal Act (ACCA) was unconstitutionally vague, 135 S. Ct. at 2563,

Chambers sought relief based on the identical clause in the Guidelines. The district court denied

his motion in March 2017, finding Chambers’s argument foreclosed by Sixth Circuit precedent.

See Raybon, 867 F.3d at 629–30 (holding that Johnson did not create a right applicable to petitioner

sentenced under the pre-Booker Guidelines residual clause and did not provide a point from which

to measure the one-year limitations period for his § 2255 motion).

       Chambers then filed a motion for reconsideration. The district court held this motion in

abeyance, pending the outcome of another Sixth Circuit case. See Chubb v. United States, 707 F.

App’x 388 (6th Cir. 2018) (finding petitioner’s § 2255 motion untimely because Johnson did not

create a right applicable to those sentenced under the mandatory Guidelines). In March 2018, the

district court denied Chambers’s motion for reconsideration, concluding that his § 2255 motion

was untimely. The district court granted Chambers a certificate of appealability on two questions:

       1. Whether, under 28 U.S.C. § 2255(f)(3), defendants sentenced under the
       mandatory, pre-Booker Sentencing Guidelines were permitted to file a petition for
       habeas corpus within one year of the Supreme Court’s decisions in Johnson v.
       United States and Welch v. United States.

       2. Whether, under the Supreme Court’s decision in Johnson v. United States, the
       residual clause of U.S.S.G. § 4B1.2 is void for vagueness as to all defendants
       sentenced as career offenders under that clause prior to the Supreme Court’s
       decision in United States v. Booker.

DE 66, Op. & Order, Page ID 248.



                                               -3-
No. 18-3298, Chambers v. United States


                                                II.

                                                A.

       “In reviewing a denial of a 28 U.S.C. § 2255 motion,” this court “review[s] the district

court’s legal conclusions de novo and its factual findings for clear error.” Jamieson v. United

States, 692 F.3d 435, 439 (6th Cir. 2012) (citing Hamblen v. United States, 591 F.3d 471, 473 (6th

Cir. 2009)). This court also “review[s] de novo a district court’s conclusion that a crime qualifies

as a predicate offense for the career-offender designation” under the Guidelines. United States v.

Baker, 559 F.3d 443, 450 (6th Cir. 2009) (quoting United States v. Skipper, 552 F.3d 489, 491 (6th

Cir. 2009)).

                                                B.

       The Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides strict gate-

keeping requirements for the filing of post-conviction petitions. The one-year limitations period

to bring a § 2255 motion for relief commences upon the latest of the following:

       (1) the date on which the judgment of conviction becomes final;

       (2) the date on which the impediment to making a motion created by governmental
           action in violation of the Constitution or laws of the United States is removed,
           if the movant was prevented from making a motion by such governmental
           action;

       (3) the date on which the right asserted was initially recognized by the Supreme
           Court, if that right has been newly recognized by the Supreme Court and made
           retroactively applicable to cases on collateral review; or

       (4) the date on which the facts supporting the claim or claims presented could have
           been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

       Chambers argues that his 2016 motion was timely under subsection (f)(3) because he filed

it within one year of the newly established right recognized by the Supreme Court in Johnson in

2015 and made retroactively applicable to cases on collateral review in Welch. In Johnson v.
                                               -4-
No. 18-3298, Chambers v. United States


United States, the Supreme Court held that the residual clause of the ACCA’s definition of a

“violent felony”1 was unconstitutionally vague and violated due process. 135 S. Ct. at 2563. The

Court later held that Johnson has retroactive effect in cases on collateral review. Welch, 136 S.

Ct. at 1265.

         In the wake of Johnson and Welch, Chambers and numerous others serving career-offender

sentences sought relief under § 2255. In his motion, Chambers argued that, because he “was

sentenced as a career offender under identical language to the now invalidated ACCA residual

clause,” he was entitled to relief under Johnson. DE 51, Mot., Page ID 58. However, the Supreme

Court in Beckles held that the advisory Guidelines were not subject to void-for-vagueness

challenges and declined to extend Johnson’s holding to the identically-worded Guidelines residual

clause.2 137 S. Ct. at 892. The Court made clear that the Beckles holding applied only to the

advisory Guidelines. Id. at 890, 892, 895–96. The Court left open the question of whether Johnson

extends to those sentenced under the residual clause pre-Booker, when the Guidelines were

mandatory. Id. at 903 n.4 (Sotomayor, J., concurring in judgment) (noting that the Court’s decision

“at least leaves open the question whether defendants sentenced to terms of imprisonment before

our decision in United States v. Booker . . . may mount vagueness attacks on their sentences”).

         Chambers argues that Beckles does not preclude him from availing himself of Johnson’s

holding because its applicability to his pre-Booker career-offender designation is an open question.

Our previous holdings, however, have answered that question in the negative. Chambers’s

argument, thus, is squarely foreclosed by precedent.



         1
          The residual clause under the ACCA defines a “violent felony” as any felony that “otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
         2
          Before August 1, 2016, the residual clause under the Guidelines defined a “crime of violence” as any felony
that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2). The Guidelines were later amended to remove the residual clause from § 4B1.2.

                                                        -5-
No. 18-3298, Chambers v. United States


         In Raybon v. United States, the petitioner sought relief under § 2255, arguing that his

career-offender sentence was predicated on a conviction for a crime that no longer constituted a

crime of violence under the residual clause of the ACCA. 867 F.3d 625, 628 (6th Cir. 2017). Like

Chambers, however, the petitioner in Raybon was sentenced as a career offender under the

Guidelines. Id. Based on the identical wording of the residual clauses under the ACCA and

§ 4B1.2(a)(2) of the Guidelines, the petitioner in Raybon argued that he was entitled to relief under

Johnson. Because Johnson was decided in 2015, he argued that his motion—filed in June 2016,

ten years after his conviction became final—was timely under § 2255(f)(3). Id. We rejected that

argument because whether Johnson extends to mandatory Guidelines “is an open question,” rather

than a new right recognized by the Supreme Court. Id. at 630. In other words, the Supreme Court’s

2015 decision in Johnson did not provide a point from which to measure the one-year limitations

period for the petitioner’s § 2255 motion. We therefore found the petitioner’s motion untimely.

Id.

         Earlier this year, in Chubb v. United States, we addressed a similar claim and denied relief.

707 F. App’x 388 (6th Cir. 2018). In Chubb, the petitioner sought relief from his career-offender

sentence—imposed under the pre-Booker, mandatory Guidelines—based on Johnson and Beckles.

Id. at 389. As in Raybon, we found that the petitioner’s § 2255 motion—filed twenty years after

his conviction became final—was untimely because Johnson’s holding did not apply to him and,

thus, his motion failed to satisfy the requirements of § 2255(f)(3). Id. at 390.

         In the instant case, Raybon is binding,3 and Chubb is instructive. Chambers’s motion fails

to assert a newly-recognized right applicable to him. See 28 U.S.C. § 2255(f)(3). We thus cannot



         3
          Both parties agree that Raybon is mandatory authority. Chambers seeks this panel’s reconsideration of
Raybon, but this panel “may not overrule the decision of another panel.” United States v. Ferguson, 868 F.3d 514,
515 (6th Cir. 2017). See also Sykes v. Anderson, 625 F.3d 294, 319 (6th Cir. 2010) (noting that a panel has no authority

                                                         -6-
No. 18-3298, Chambers v. United States


measure the one-year limitations period for Chambers’s motion from the 2015 decision in Johnson.

Because it was filed nearly fifteen years after his conviction became final, Chambers’s motion is

time-barred, and we need not address the merits of the motion.

                                                       III.

         Therefore, we find Chambers’s motion untimely and affirm the judgment of the district

court.




to overrule a prior published panel decision unless a subsequent Supreme Court decision so requires); United States
v. Moody, 206 F.3d 609, 615 (6th Cir. 2000) (same).

                                                       -7-
No. 18-3298, Chambers v. United States


        KAREN NELSON MOORE, Circuit Judge, concurring. I concur in the judgment in

this case, but only because Raybon v. United States, 867 F.3d 625, 629–30 (6th Cir. 2017), cert.

denied, 138 S. Ct. 2661 (2018), is binding on this panel. See Salmi v. Sec’y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6th Cir. R. 32.1(b). Raybon held that the residual clause

of the mandatory Sentencing Guidelines—which is textually and functionally identical to the

Armed Career Criminal Act’s (“ACCA”) residual clause that the Supreme Court held was

unconstitutional in Johnson—is not subject to the prohibition against vague laws. Chambers

concedes that Raybon decides his case, but he urges en banc review to reconsider this precedent.

Appellant’s Br. at 9, 12.

        I write separately because Raybon was wrong on this issue. We should should accept the

invitation to rehear this case en banc and overturn Raybon.

                                                    I.

                                                   A.

        When the district court sentenced Chambers in 2001, the Sentencing Guidelines were

mandatory. In calculating his sentence, the district court applied the career-offender enhancement

pursuant to U.S.S.G. § 4B1.1. R. 70 (PSR at 10) (Page ID #269); U.S. SENTENCING GUIDELINES

MANUAL (“U.S.S.G.”) § 4B1.1 (U.S. SENTENCING COMM’N 2000). Then in 2005, the Supreme

Court held that the mandatory Guidelines were unconstitutional and remedied this constitutional

defect by severing the portion of the Sentencing Reform Act of 1984 (“SRA”) that made the

Guidelines mandatory. United States v. Booker, 543 U.S. 220, 245 (2005). In so modifying the

SRA, the Court made “the Guidelines effectively advisory.” Id.

        Section 4B1.1 of the mandatory Guidelines provided, in part, that “[a] defendant is a career

offender if . . . the instant offense of conviction is a felony that is . . . a crime of violence . . . .”



                                                  -8-
No. 18-3298, Chambers v. United States


Section 4B.1.2(a), in turn, defined “crime of violence” as “any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that . . . is burglary of a dwelling,

arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a

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

The latter portion of this provision is known as the “residual clause.”

       In Johnson v. United States, the Supreme Court held that the identically worded residual

clause in the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. 135 S. Ct. 2551,

2563 (2015). The following Term, the Court made Johnson retroactive. Welch v. United States,

136 S. Ct. 1257, 1265 (2016).

       Chambers filed the 28 U.S.C. § 2255 motion at issue in this case on June 17, 2016, R. 51

(Second § 2255 Mot.), within one year after the decision in Johnson. The district court denied this

motion based on the Supreme Court’s decision in Beckles v. United States, 137 S. Ct. 886 (2017)

(holding that vagueness doctrine did not apply to the advisory Guidelines). See United States v.

Chambers, No. 1:01-cr-172, 2018 WL 1388745, at *1 (N.D. Ohio Mar. 20, 2018). Chambers

moved for reconsideration. On reconsideration, the district court concluded that, “[w]hile the

[district court’s] initial opinion did not address whether Beckles applied to pre-Booker sentences,

Chambers’s motion for reconsideration must still be denied. As both parties acknowledge,

Chambers’s petition is untimely according to binding Sixth Circuit precedent.” Id. Further, the

district court granted a certificate of appealability and noted a current circuit split on whether

Johnson applied to pre-Booker sentences. Id. at *2. In fact, the district court expressed significant

sympathy for Chambers’s position and skepticism as to Raybon’s correctness. Id. at *2.2


       2
           On this point, it is worth quoting Judge Gwin’s reasoning:
               [T]here are significant reasons to be skeptical of the Sixth Circuit’s Raybon decision. For
       one thing, it essentially shields pre-Booker residual clause sentences from any review under
       Johnson. Unless someone can timely raise an issue, it is impossible for the Supreme Court to resolve

                                                        -9-
No. 18-3298, Chambers v. United States


        Notably, Beckles was contrary to the Sixth Circuit’s (and almost every other circuit’s)

expectations. See United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) (holding that the

residual clause of the advisory Guidelines was unconstitutionally vague because “[a]fter Johnson,

no one disputes that the identical language of the Guidelines’ residual clause implicates the same

constitutional concerns as the ACCA’s residual clause.”); see also Beckles, 137 S. Ct. at 892 n.2

(collecting cases that resulted in the circuit split on the issue of Johnson’s applicability to the

advisory Guidelines, with only the Eleventh Circuit holding that Johnson did not apply). But that

surprise has not stopped the First and Seventh Circuits, or the D.C. District Court, from allowing

habeas petitioners who were sentenced pre-Booker to mount Johnson vagueness challenges against

the mandatory Guidelines. Cross v. United States, 892 F.3d 288 (7th Cir. 2018); Moore v. United

States, 871 F.3d 72 (1st Cir. 2017); United States v. Hammond, --- F. Supp. 3d ---, No. 92-471,

2018 WL 6200897, at *12–16 (D.D.C. Nov. 28, 2018); cf. United States v. Helmy, 951 F.2d 988,

993–94 (9th Cir. 1991) (assuming that the mandatory Guidelines were subject to the prohibition

against vagueness and addressing a vagueness challenge to a Guidelines provision on the merits).

But other circuits that have addressed this issue, including the Sixth, sit on the other side of the

split. See United States v. Greer, 881 F.3d 1241, 1247 (10th Cir.) (holding that the Supreme Court




        it and thereby trigger the application of the “newly discovered” rights exception. And the last
        defendant sentenced under the mandatory guidelines regime would have been sentenced around the
        time Booker was decided in 2005, so it follows that no one sentenced under that regime will fall
        within AEDPA’s ordinary statute of limitations.
                  For another, it seems to the Court that the right vindicated in Johnson was the right to be
        free from unconstitutionally vague statutes that fail to clearly define “crime of violence” or “violent
        felony,” not simply the right not to be sentenced under the residual clause of the ACCA. Here,
        Chambers similarly seeks to vindicate that right not to be sentenced under unduly vague sentencing
        provisions. The excessively narrow construction of § 2255(f)[] adopted in Raybon invites Potemkin
        disputes about whether the Supreme Court has explicitly applied its precedents to a specific factual
        circumstance rather than asking whether the right the Supreme Court has newly recognized applies
        to that circumstance.
United States v. Chambers, No. 1:01-cr-172, 2018 WL 1388745, at *2 (N.D. Ohio Mar. 20, 2018).


                                                        - 10 -
No. 18-3298, Chambers v. United States


has not recognized the right of petitioners to challenge their pre-Booker sentences under Johnson

because such challenges go to the mandatory Guidelines’ residual clause and not the ACCA

specifically), cert. denied, 139 S. Ct. 374 (2018); United States v. Brown, 868 F.3d 297, 302–03

(4th Cir. 2017) (2-1 decision, with Gregory, C.J., dissenting), cert. denied, 139 S. Ct. 14 (2018);

Raybon, 867 F.3d at 629–30 (reasoning that whether Johnson applies to the mandatory Guidelines

is an “open question”); In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (holding that the

mandatory Guidelines cannot be challenged as unconstitutionally vague).

                                                B.

       Title 28 U.S.C. § 2255(a) provides that a federal prisoner “claiming the right to be released

upon the ground that the sentence was imposed in violation of the Constitution or laws of the

United States . . . may move the court which imposed the sentence to vacate, set aside or correct

the sentence.” Because this § 2255 motion comes nearly fifteen years after Chambers’s sentence

was imposed, Chambers must satisfy the gatekeeping requirements of § 2255(f)(3). This provision

requires that the motion must be filed within one year from when the Supreme Court recognizes a

right and that the Court has made that right retroactive on collateral review. Id. As mentioned,

Chambers filed the instant motion within one year after the Court decided Johnson, and the Court

made Johnson retroactive in Welch.

       The question here is purely legal: Does Chambers’s § 2255 motion assert the right

recognized, and made retroactive, by the Supreme Court in Johnson? It does. Because Raybon

concludes otherwise, we should rehear this case en banc and take that opportunity to overturn this

wrongly decided precedent.




                                              - 11 -
No. 18-3298, Chambers v. United States


                                                           II.

         The Fifth Amendment provides that “No person shall . . . be deprived of life, liberty, or

property, without due process of law.” “The Constitution’s prohibition of vague laws springs from

this well.” Shuti v. Lynch, 828 F.3d 440, 443 (6th Cir. 2016). The pathmarking 2015 decision of

Johnson applied this prohibition against vagueness to sentencing laws, stating that a vague

sentencing law “both denies fair notice to defendants and invites arbitrary enforcement by judges.”

Johnson, 135 S. Ct. at 2557; see also Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018) (Gorsuch,

J., concurring) (“Vague laws invite arbitrary power.”). We have reasoned previously that Johnson

came “with far-reaching precedential effects.” Shuti, 828 F.3d at 444. In Shuti, we held that

Johnson applied to the Immigration and Nationality Act’s (“INA”) residual clause. Id. at 446. We

reasoned that “[t]he consistent comingling of residual-clause precedents interpreting the INA,

ACCA, and Guidelines shores up our conclusion.” Id. (emphasis added); see also id. at 447 (“INA

cases can be applied to the ACCA, ACCA cases can be applied to the Guidelines, and Guidelines

cases can be applied to the INA.”). Our court in Raybon, however, concluded that the prohibition

against vagueness does not apply to the mandatory Guidelines. Raybon, 867 F.3d at 629–30;2 see

also Chubb v. United States, 707 F. App’x 388, 390 (6th Cir. 2018).

         Johnson and other Supreme Court precedent dictate a different result than that reached by

this court in Raybon. Just last Term, the Supreme Court confirmed our reasoning in Shuti that,


         2
            Raybon’s holding on this point was an alternative holding. See 867 F.3d at 631–32 (stating that “we can
also decide this issue on the merits[,]” and “[a]ssuming the residual clause is void, . . . we conclude that Raybon’s
conviction still qualifies as a crime of violence under the elements clause.”). I am not prepared to question the practice
of alternative holdings, and an alternative holding is still a holding. See Richmond Health Facilities–Kenwood, LP v.
Nichols, 811 F.3d 192, 201–02 (6th Cir. 2016); Pratt v. Ventas, Inc., 365 F.3d 514, 521 (6th Cir. 2004); see also
Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949). But I note that recently the practice has come under some
criticism on our court. See United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J.,
concurring in the judgment); see also id. (Rogers, J., concurring in part and in the judgment) (agreeing with Judge
Kethledge). For reasons explained below, this case may have “real consequences to the part[y] before us,” and
therefore, perhaps our thinking will be “more careful[] [and] more focused” on this particular issue. See id. at 410
(Kethledge, J., concurring in the judgment).

                                                         - 12 -
No. 18-3298, Chambers v. United States


“Johnson is a straightforward decision,” and that decision had an “equally straightforward

application” to the INA’s residual clause. Dimaya, 138 S. Ct. at 1213; 18 U.S.C. § 16(b). If

Dimaya was straightforward, then this case is even more so. After all, unlike the INA, the

mandatory Guidelines’ residual clause is completely identical to the ACCA’s residual clause that

the Court found to be unconstitutionally vague in Johnson. “Because the residual clause in the”

mandatory Guideline provision “now before us uses [the] exact[] same language as the residual

clause in Johnson, respect for precedent alone would seem to suggest that both clauses should

suffer the same judgment.” See Dimaya, 138 S. Ct. at 1224 (Gorsuch, J., concurring).

       The Court in Johnson held that the prohibition of vagueness “appl[ies] not only to statutes

defining elements of crimes, but also to statutes fixing sentences.” 135 S. Ct. at 2557. “Two

features of [the ACCA’s] residual clause conspire[d] to make it unconstitutionally vague.” Id.

Those dual flaws were: (1) “ACCA’s residual clause created ‘grave uncertainty about how to

estimate the risk posed by a crime’ because it ‘tie[d] the judicial assessment of risk’ to a hypothesis

about the crime’s ‘ordinary case.’”; and (2) “ACCA’s residual clause left unclear what threshold

level of risk made any given crime a ‘violent felony.’” Dimaya, 138 S. Ct. at 1213–14 (quoting

Johnson, 135 S. Ct. at 2557–58). Importantly, Johnson emphasized that these flaws stemmed from

layering the “imprecise ‘serious potential risk’ standard” onto “a judge-imagined abstraction [of

what an ‘ordinary case’ might be],” as opposed to applying that standard “to real-world facts.”

Johnson, 135 S. Ct. at 2558. The Court thus concluded that, “[b]y combining indeterminacy about

how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the

crime to qualify as a violent felony, the residual clause produces more unpredictability and

arbitrariness than the Due Process Clause tolerates.” Id.




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No. 18-3298, Chambers v. United States


       The Court relied on these dual flaws when it rejected the argument that its ruling would

cast constitutional doubt on many other federal and state criminal laws. As the Court explained,

       Almost none of [those other laws] links a phrase such as “substantial risk” to a
       confusing list of examples. . . . More importantly, almost all of the cited laws
       require gauging the riskiness of conduct in which an individual defendant engages
       on a particular occasion. As a general matter, we do not doubt the constitutionality
       of laws that call for the application of a qualitative standard such as “substantial
       risk” to real-world conduct . . . . The residual clause, however, requires application
       of the “serious potential risk” standard to an idealized ordinary case of the crime.
       Because the elements necessary to determine the imaginary ideal are uncertain both
       in nature and degree of effect, this abstract inquiry offers significantly less
       predictability than one that deals with the actual . . . facts.
Id. at 2561 (internal citations and quotation marks omitted). Therefore, the Court did not cast

constitutional doubt on laws that used only indeterminate phrases like “substantial risk” and then

apply that standard to real-world conduct in which a defendant engages on a specific occasion.

       Laws that fuse the two flaws fall in the heartland of Johnson. The Court confirmed this in

Dimaya, 138 S. Ct. at 1214 (“The problem [with the ACCA’s residual clause] came from layering

such a standard on top of the requisite ‘ordinary case’ inquiry.”). In Dimaya, the Court struck

down the INA’s residual clause because it contained these same flaws. Id. at 1216.

       The mandatory Guidelines’ residual clause also contains the dual flaws and is therefore

unconstitutionally vague. First, § 4B1.2(a)(2)’s residual clause matches the ACCA’s residual

clause word for word. Second, the same interpretation and ordinary-case analysis applies to the

ACCA as it does to the Guidelines. United States v. Morris, 885 F.3d 405, 412–13 (6th Cir. 2018)

(citing James v. United States, 550 U.S. 192, 208 (2007), and noting that, although Johnson

abrogated parts of James, the Supreme Court did not disturb this portion of James “for purposes

of analyzing the residual clause of the Guidelines.”); United States v. Ford, 560 F.3d 420, 421 (6th

Cir. 2009) (“[W]e treat a ‘crime of violence’ under § 4B1.1(a) of the guidelines the same as a

‘violent felony’ under the [ACCA], 18 U.S.C. § 924(e)(1), because both laws share essentially the


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No. 18-3298, Chambers v. United States


same definitions (if not the same titles).”) (internal citations omitted); United States v. Houston,

187 F.3d 593, 594–95 (6th Cir. 1999) (same, under the mandatory Guidelines). Although Johnson

rejected the “sentiment” that “it was placing textually similar laws into ‘constitutional doubt,’”

Raybon, 867 F.3d at 630 (explaining Johnson), § 4B1.2(a)(2) contains the exact same language

and requires the exact same inquiry that, when combined, Johnson found constitutionally fatal.

       The Guidelines’ history confirms the identical nature of the residual clauses of

§ 4B1.2(a)(2) and the ACCA. When § 4B1.2 was first amended to include the wording at issue

here, the Sentencing Commission stated that, “[t]he purpose of this amendment is to clarify the

definition[] of crime of violence . . . . The definition of crime of violence used in this amendment

is derived from 18 U.S.C. § 924(e) [i.e., the ACCA].” U.S.S.G., Amendments to the Sentencing

Guidelines Manual of October 1987, at App. C.139 (U.S. SENTENCING COMM’N 1989). The

upshot: these two laws are and were always meant to be the same. Logic dictates that both should

suffer the same judgment.

       Johnson and Booker further provide support for the conclusion that these two residual

clauses are functionally identical, not just textually identical. Notably, the Supreme Court has

cited to Guidelines cases to demonstrate that the ACCA’s residual clause “has proved nearly

impossible to apply consistently.” See Johnson, 135 S. Ct. at 2560; United States v. Carthorne,

726 F.3d 503, 510–15 (4th Cir. 2013) (addressing § 4B1.2); United States v. McDonald, 592 F.3d

808, 810–16 (7th Cir. 2010) (same); United States v. Whitson, 597 F.3d 1218, 1220–22 (11th Cir.

2010) (same); United States v. Williams, 559 F.3d 1143, 1146–49 (10th Cir. 2009) (same). Again,

the two residual clauses share the same constitutional defect and should share the same fate.

       Moreover, the Supreme Court has repeatedly recognized that, “[a]s enacted, the SRA made

the Sentencing Guidelines binding.” Dillon v. United States, 560 U.S. 817, 820 (2010) (citing



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No. 18-3298, Chambers v. United States


Booker, 543 U.S. at 233–34); Booker, 543 U.S. at 234 (“[Section 3553(b)] directs that the court

‘shall impose a sentence of the kind, and within the range’ established by the Guidelines”). As

such, the mandatory Guidelines had “the force and effect of laws.” Booker, 543 U.S. at 233–34

(citing Mistretta v. United States, 488 U.S. 361, 391 (1989); Stinson v. United States, 508 U.S. 36,

42 (1993)); see also Hill v. Masters, 836 F.3d 591, 599 (6th Cir. 2016). Accordingly, the

mandatory Guidelines, because they were binding via the SRA, were laws that “fix[ed] sentences.”

Johnson, 135 S. Ct. at 2557. Notably, the possibility of a departure did not cure the constitutional

flaw in the mandatory sentencing scheme in Booker. 543 U.S. at 234–35. It is hard to fathom why

this case is any different.

        The Court in Johnson, therefore, newly recognized a defendant’s right to be sentenced

pursuant to a law that is not unconstitutionally vague. The Johnson vagueness inquiry specifically

turns on whether a law that fixes sentences contains the same dual flaws that the ACCA contained.

One year later, the Court held that the right recognized in Johnson applied retroactively on

collateral review. Welch, 136 S. Ct. at 1265. Chambers asserts that right, applied to an identical

law that fixes sentences, in this collateral proceeding.

        Our court would not be creating a “new rule” by applying Johnson to the mandatory

Guidelines at issue here. “[A] case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288, 301

(1989). On the other hand, “a case does not announce a new rule” if it is “merely an application

of the principle that governed a prior decision to a different set of facts.” Chaidez v. United States,

586 U.S. 342, 347–48 (2013) (internal quotations omitted). As the foregoing analysis of Supreme

Court precedent shows, applying Johnson’s rule to the identical residual clause in the mandatory

Guidelines is dictated by precedent. Specifically, Johnson itself and the Supreme Court’s repeated



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No. 18-3298, Chambers v. United States


recognition that the mandatory Guidelines had the force and effect of law dictate the result here.

Cf. In re Watkins, 810 F.3d 375, 381 (6th Cir. 2015) (explaining that, “even where the Supreme

Court does not expressly hold that a new rule applies retroactively, the Court may ‘ma[k]e’ a new

rule retroactive through multiple holdings that logically dictate the retroactivity of the new rule.”)

(internal quotation marks omitted). And Johnson is retroactive. This case, as in Dimaya, is merely

a straightforward application of the principle that governed Johnson. Like the INA’s residual

clause, the mandatory Guidelines’ residual clause “falls squarely within Johnson’s core holding.”

See Shuti, 828 F.3d at 447.

       That should end this case and that is how Raybon should have ended. But then Raybon,

like other circuits, misread and misunderstood the consequences of the Supreme Court’s recent

decision in Beckles. The other side of the circuit split, and in particular the Seventh Circuit’s

decision in Cross, 892 F.3d 288, puts forth a more persuasive case for how to read Beckles

alongside Johnson. See also United States v. Brown, 868 F.3d 297, 304–11 (4th Cir. 2017)

(Gregory, C.J., dissenting). Beckles limited vagueness challenges to “laws that fix the permissible

sentences for criminal offenses,” Beckles, 137 S. Ct. at 892, and the mandatory Guidelines did just

that (whereas the advisory Guidelines do not).

       Raybon misread Beckles. The court thought that “whether [Johnson] applies to the

mandatory guidelines . . . is an open question.” Raybon, 867 F.3d at 629. To support this belief,

the court relied on Beckles’s repeated reference that its holding applied to only the advisory

Guidelines. Id. That’s true. But the “open question” line comes not from the Supreme Court’s

majority in Beckles, but rather, from Justice Sotomayor’s concurrence in the judgment. Beckles,

137 S. Ct. at 903 n.4 (Sotomayor, J., concurring in the judgment), cited in Raybon, 867 F.3d at

629–30. The Beckles majority, however, simply repeated, over and over, its reliance on the



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No. 18-3298, Chambers v. United States


distinction that, “[u]nlike the ACCA, . . . the advisory Guidelines do not fix the permissible range

of sentences.” Beckles, 137 S. Ct. at 892; see also id. at 894 (“Because they merely guide the

district courts’ discretion, the Guidelines are not amenable to a vagueness challenge.”).

       Not so for the mandatory Guidelines. The mandatory Guidelines did indeed fix a particular

sentence and denied the district court’s discretion. See Booker, 543 U.S. at 233–35; id. at 233

(noting that the mandatory Guidelines could not “be read as merely advisory provisions that

recommended, rather than required, the selection of particular sentences,” because, if they did,

“their use would not implicate” constitutional concerns). In this way, Beckles is consistent with

Booker’s distinction between advisory Guidelines that guide district courts’ discretion and

mandatory Guidelines that bind district courts. Hence, the advisory Guidelines do not pose a Fifth

Amendment vagueness problem, just as the advisory Guidelines did not pose the Sixth

Amendment problem at issue in Booker. But then the flip side of the coin must also be true:

mandatory Guidelines that “require[] the selection of particular sentences” and that “have the force

and effect of laws,” id. at 233, 234, fall squarely within the heartland of Johnson. Simply put,

Johnson applies to “laws that fix the permissible sentences for criminal offenses.” Beckles, 137 S.

Ct. at 892.

       Therefore, Booker and Johnson, together, dictate the answer to Raybon’s supposed “open

question” when mandatory Guidelines are at issue. Beckles, rather than leave a question open,

merely declined to extend Johnson’s rule to laws that do not entirely “fix sentences”—i.e., the

advisory Guidelines.    Dimaya further supports overturning Raybon.          Dimaya was not an

“extension,” per se, of Johnson; instead, Dimaya was simply a “straightforward application” of

Johnson’s vagueness rule, and the Court gave no indication that it was announcing a novel rule.

138 S. Ct. at 1213. That is, of course, because Johnson was the case that already broke new ground.



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No. 18-3298, Chambers v. United States


Both the ACCA and the INA contained the dual vagueness flaws—so too for § 4B1.2(a)(2). The

ACCA fixes sentences—so too for the mandatory Guidelines. And again, the ACCA’s residual

clause and § 4B1.2(a)(2)’s residual clause are identical. The “open question” thus seems quite

closed and straightforward.

       But the Raybon panel attempted to bolster its reasoning by citing an out-of-circuit district

court’s reading of portions of Johnson and Welch, which noted that the rule announced in Johnson

“‘cast[s] no doubt’ on laws using similar language.” Raybon, 867 F.3d at 630 (quoting Mitchell v.

United States, No. 3:00-CR-00014, 2017 WL 2275092, at *4 (W.D. Va. May 24, 2017)). That

language has absolutely nothing to do with the distinction between advisory and mandatory

Guidelines, upon which Beckles relied. Instead, as shown above, the Supreme Court was merely

clarifying the contours of the rule it announced in Johnson: for a law to be placed in “constitutional

doubt,” it must combine indeterminate language (e.g., “substantial risk”) with the ambiguous

ordinary-case standard. But then Beckles further clarified that Johnson applied only to laws that

fix sentences. Beckles concluded that the advisory Guidelines do not fit that bill. The mandatory

Guidelines do. In short, Raybon’s analysis of these cases completely missed the mark.

       At any rate, no reason exists to believe that other provisions of the Guidelines—or, for

example, sentencing provisions like 18 U.S.C. § 3553—raise comparable vagueness concerns.

Since 1991, the Ninth Circuit has held that the (mandatory) Guidelines are subject to vagueness

challenges, see Helmy, 951 F.2d at 993, and yet that circuit has never found a Guideline

unconstitutionally vague, Beckles, 137 S. Ct. at 905 n.5 (Sotomayor, J., concurring in the

judgment). As to § 3553, the Court already considered and dismissed the arguments against its

validity in Johnson. See 135 S. Ct. at 2561. That statute and other provisions like it, which require

the application of a general standard to particular conduct rather than to the ambiguous “ordinary



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No. 18-3298, Chambers v. United States


case,” do not present vagueness problems. In other words, precedent and experience show that

Raybon’s concern about other laws is inapposite.

       Finally, the fact that the Sentencing Commission has erased § 4B1.2(a)(2)’s residual clause

from the Guidelines provides additional support for reconsidering Raybon.              See generally

U.S.S.G., Supplement to Appendix C, Amend. 798, at 118–21 (2018). In amending the Guidelines,

the Commission was “informed by . . . the Supreme Court’s recent decision in Johnson,” as well

as public comments and court opinions “expressing [the] view that the definition of ‘crime of

violence’ is complex and unclear.” Id. at 119. Ultimately, “[t]he Commission determined that the

residual clause at § 4B1.2 implicates many of the same concerns cited by the Supreme Court in

Johnson.” Id. at 121. The Commission deleted the residual clause and thereby “alleviat[ed] the

considerable application difficulties associated with that clause, as expressed by judges, probation

officers, and litigants.” Id. The Commission was thus animated by constitutional and policy

concerns when it struck the advisory Guidelines’ residual clause. Those same concerns should

animate our reconsideration of Raybon and its immunization of the mandatory Guidelines from

the prohibition against vagueness.

                                                 ***

       Notably, the Supreme Court has declined to intervene and resolve the current split among

the circuits. See Brown v. United States, 139 S. Ct. 14 n.1 (2018) (Sotomayor, J., dissenting from

denial of certiorari) (collecting denied petitions for certiorari that present this issue). As Justice

Sotomayor, joined by Justice Ginsburg, stated in a recent dissent from the denial of certiorari,

wherever one stands on the merits of this issue, cases like this one “present[] an important question

of federal law that has divided the courts of appeals and in theory could determine the liberty of

over 1,000 people.” Id. at 16. Whether or not our court will hear this case en banc to reconsider



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No. 18-3298, Chambers v. United States


Raybon, the Supreme Court should resolve this split. It is problematic that these individuals are

potentially “sentence[d] . . . in violation of the Constitution or laws of the United States,” 28 U.S.C.

§ 2255, without clarification as to whether Johnson applies to a sentencing provision that is worded

identically to, and is equally binding as, the ACCA’s unconstitutionally vague residual clause.

                                                  III.

        This case potentially presents a particularly compelling vehicle for overturning Raybon

because Chambers, unlike Mr. Raybon, could win on the merits. See Raybon, 867 F.3d at 631–32

(secondarily ruling against Raybon on the merits).

        We have held that California escape qualifies as a crime of violence under U.S.S.G.

§§ 4B1.1, 4B1.2(a)(2). United States v. Jackson, 4 F. App’x 287, 290 (6th Cir. 2001) (stating that

the decision was dictated by United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999)). These

cases turned on whether escape should be considered a crime of violence under the Guidelines’

residual clause in § 4B1.2(a)(2), see United States v. Watts, 7 F. App’x 526, 528 (6th Cir. 2001),

i.e., whether escape is a crime that “otherwise involves conduct that presents a serious potential

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

        But if the residual clause under which the escape conviction potentially falls is void for

vagueness, then the conviction can no longer be used as a basis for his career-offender status. At

sentencing, the district court stated that Chambers’s career-offender status was based on his

aggravated robbery and escape convictions. R. 33 (Sentencing Tr. at 40–41) (Page ID #236–37).

Accordingly, Chambers may not be a career offender if the escape conviction cannot be used.

        On appeal, Chambers states that he preserves the right to amend his § 2255 motion to

include a challenge to his escape conviction (if he succeeds here). Appellant’s Br. at 3 n.2, 13.




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No. 18-3298, Chambers v. United States


But neither party extensively briefs this issue on this appeal. For now, I briefly note that this claim

has some merit.

       At Chambers’s sentencing, the district court stated that, “the Court finds no evidence in

your particular circumstances that you threatened any violence or that violence itself was

reasonably to be anticipated from the circumstances associated with your walking away from this

camp.” R. 33 (Sentencing Tr. at 41) (Page ID #237) (emphasis added). Chambers’s escape,

therefore, appears to be just the sort of “walkaway” escape that we have already determined not to

be a crime of violence.

       In Ford, we recognized that the Supreme Court’s decision in Chambers v. United States,

555 U.S. 122 (2009),

       establishes that at least one type of escape offense—a failure to report—is not a
       crime of violence. And that conclusion requires us to modify our prior decisions
       suggesting that all manner of escape convictions under Kentucky law (or for that
       matter other States’ laws), including failures to report, constitute crimes of
       violence.
Ford, 560 F.3d at 423. Second, the court continued, “Chambers, it seems to us, also undermines

the notion that a ‘walkaway’ conviction is a crime of violence.” Id. And again, Ford was a

Guidelines case that addressed whether escape was a crime of violence under §§ 4B1.1, 4B1.2. In

short, as Chambers argues in his brief, he has a better case on the merits than the appellant in

Raybon.

       Indeed, a favorable ruling could have a significant effect on Chambers’s sentence. Without

the career-offender enhancement, Chambers’s offense level would have been set at 26. R. 33

(Sentencing Tr. at 40) (Page ID #236). Instead, with the enhancement, the district court set the

offense level at 32, which it adjusted to 29 for Chambers’s accepting responsibility. Id. at 41 (Page

ID #237). This is the difference between a 151-month to 188-month sentence range (Chambers

received 151 months), and a 120-month to 150-month range without the enhancement—potentially

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No. 18-3298, Chambers v. United States


over two-and-a-half years. Or, if Chambers were given the additional reduction for acceptance of

responsibility (which he almost certainly would), his sentence range would have been set at 92 to

115 months—potentially a nearly five-year difference. In other words, the “problematic part” of

Raybon may pose a “problem for the defendant before the court.” United States v. Burris, 912

F.3d 386, 410 (6th Cir. 2019) (en banc) (Rogers, J., concurring in part and in the judgment).

       For Chambers, then, Raybon’s mistakes may make a difference. “With those mistakes now

obvious, it is untenable to allow” Raybon “to continue to both require the district courts in this

circuit to enhance defendants’ prison sentences based on” an unconstitutionally vague residual

clause, “and to require panels of this court to affirm those incorrectly enhanced sentences.” Burris,

912 F.3d at 406–07 (Lead Op.); see also id. at 407 (“For who wouldn’t hold a rightly diminished

view of our courts if we allowed individuals to linger longer in prison than the law requires only

because we were unwilling to correct our own obvious mistakes.” (quoting Hicks v. United States,

137 S. Ct. 2000, 2001 (2017) (Gorsuch, J., concurring))).

                                                IV.

       For these reasons, this case presents a compelling vehicle to correct wrongly decided and

now-undermined Sixth Circuit law. I urge our court to rehear this case en banc.




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