         Case: 14-10211   Date Filed: 09/30/2015   Page: 1 of 10


                                                                   [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 14-10211
                       Non-Argument Calendar
                     ________________________

              D.C. Docket Nos. 4:11-cv-00055-RH-GRJ
                               4:09-cr-00025-RH-GRJ-1



TONY EDWARD DENSON,

                                                         Petitioner-Appellant,

                                 versus


UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                     ________________________

              Appeal from the United States District Court
                  for the Northern District of Florida
                    ________________________

                          (September 30, 2015)

                   ON REMAND FROM THE
               UNITED STATES SUPREME COURT
              Case: 14-10211    Date Filed: 09/30/2015    Page: 2 of 10


Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:

      On 3 August 2015, the United States Supreme Court entered an order

granting Appellant Tony Edward Denson’s petition for a writ of certiorari and

vacated this Court’s prior decision, issued 17 June 2014, and remanded this case

for further decision in light of Johnson v. United States, 576 U.S. ___, 135 S. Ct.

2551 (2015). On 11 August 2015, this Court requested supplemental briefs by the

parties addressing the impact, if any, of Johnson on this appeal. Having now

concluded that Johnson has no impact on the issues in this appeal, we hereby

reinstate our prior decision as provided below, and add at the end why Johnson has

no impact on this case raising ineffective assistance of counsel regarding the

application of the career-offender guideline in U.S.S.G. §§ 4B1.1 and 4B1.2 to the

guidelines range for Denson’s sentence.

                            REINSTATED DECISION

      Tony Denson, a pro se federal prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The

district court granted a certificate of appealability (“COA”) on the issue of whether

Denson’s attorney rendered ineffective assistance at sentencing by failing to object

to treating Denson’s Florida conviction for possession of a short-barreled shotgun,

in violation of Florida Statute § 790.221(1), as a “crime of violence” for career


                                             2
               Case: 14-10211       Date Filed: 09/30/2015      Page: 3 of 10


offender guidelines calculations under U.S.S.G. §§ 4B1.1 and 4B1.2.1 After

review, we affirm the district court’s denial of Denson’s § 2255 motion.

                    I. INEFFECTIVE ASSISTANCE CLAIMS

       To prevail on an ineffective assistance of counsel claim, Denson has the

burden to show that: (1) his counsel’s performance was deficient; and (2) he

suffered prejudice as a result of the deficient performance. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “In a 28 U.S.C.

§ 2255 proceeding, we review a district court’s legal conclusions de novo and

factual findings for clear error.” Devine v. United States, 520 F.3d 1286, 1287

(11th Cir. 2008). Whether counsel rendered ineffective assistance is a mixed

question of law and fact that we review de novo. Id. Here, the district court

correctly denied Denson’s ineffective assistance claim because he did not establish

either deficient performance or prejudice. We explain why.

                     II. CAREER OFFENDER GUIDELINES

       Denson’s ineffective assistance claim hinges on his counsel’s failure to

object to the district court’s designating him a career offender under U.S.S.G.

§§ 4B1.1 and 4B1.2. Under § 4B1.1, a defendant qualifies as a career offender if

he “has at least two prior felony convictions of either a crime of violence or a

       1
        Denson also argues the underlying substantive issue that the sentencing court wrongly
applied U.S.S.G. § 4B1.1’s career offender enhancement. Because this issue is outside the scope
of the COA, we do not address it. See Murray v. United States, 145 F.3d 1249, 1250 (11th
1998).
                                                  3
              Case: 14-10211     Date Filed: 09/30/2015   Page: 4 of 10


controlled substance offense.” U.S.S.G. § 4B1.1(a). A “crime of violence” means

an offense punishable by one year in prison that either “has as an element the use,

attempted use, or threatened use of physical force against the person of another,” or

“is a burglary of a dwelling, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk for physical injury

to another.” Id. § 4B1.2(a).

      The commentary to § 4B1.2 explicitly states that “unlawfully possessing a

firearm described in 26 U.S.C. § 5845(a),” such as a “sawed-off shotgun” is a

crime of violence. Id. § 4B1.2, cmt. n.1. Because this guidelines commentary is

authoritative and binding, possession of such a firearm qualifies as a “crime of

violence” without resort to the “categorical approach” traditionally used to

determine whether an offense falls within the residual clause of U.S.S.G.

§ 4B1.2(a)(2). United States v. Hall, 714 F.3d 1270, 1274 (11th Cir. 2013)

(concluding that possession of an unregistered sawed-off shotgun, in violation of

26 U.S.C. § 5861(d), qualifies as a “crime of violence” under U.S.S.G.

§ 4B1.2(a)(2) based on the binding guidelines commentary).

      At the time of Denson’s predicate offense, Florida’s definition of “short-

barreled shotgun” was virtually identical to the federal definition of “sawed-off

shotgun” in 26 U.S.C. § 5845(a), referenced in the guidelines commentary.

Compare 26 U.S.C. § 5845(a)(1)-(2), with Fla. Stat. Ann. § 790.001(10) (1992). In


                                              4
               Case: 14-10211      Date Filed: 09/30/2015   Page: 5 of 10


other words, a “short-barreled shotgun” under the Florida law was, for the

purposes of § 4B1.2, a “firearm described in 26 U.S.C. § 5845(a),” and, according

to the binding commentary, unlawful possession of such a firearm qualifies as a

crime of violence.

                                III. PERFORMANCE

       As to deficient performance, Denson is unable to show that his “counsel’s

representation fell below an objective standard of reasonableness.” See Strickland,

466 U.S at 687-88, 104 S. Ct. at 2064. This is so because an objection to

classifying Denson’s Florida short-barreled shotgun offense as a crime of violence

would have run counter to the express and authoritative language of the guidelines

commentary and thus would have been meritless. Failing to make a meritless

objection does not constitute deficient performance. See Freeman v. Att’y Gen.,

536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient for failing to

raise a meritless claim . . . .” (citation omitted)).

                         IV. BEGAY V. UNITED STATES

       In an effort to show his counsel’s performance nevertheless was objectively

unreasonable, Denson points to Begay v. United States, 553 U.S. 137, 128 S. Ct.

1581 (2008), and to this Court’s application of Begay in United States v. McGill,

618 F.3d 1273 (11th Cir. 2010). Begay was decided about a year before Denson

was sentenced. In Begay, the Supreme Court concluded that a New Mexico


                                                 5
              Case: 14-10211     Date Filed: 09/30/2015    Page: 6 of 10


driving under the influence offense was not a “violent felony” under the residual

clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii).

553 U.S. at 141-42, 128 S. Ct. at 1584. The ACCA’s residual clause defines the

phrase “violent felony” using language virtually identical to U.S.S.G. § 4B1.2’s

residual clause defining a “crime of violence.” Compare 18 U.S.C.

§ 924(e)(2)(B)(ii), with U.S.S.G. § 4B1.2(a)(2). Begay explained that an offense

that “involves conduct that presents a serious risk of physical injury to another” is

a “violent felony” under the ACCA’s residual clause only if it is “roughly similar,

in kind as well as in degree of risk posed” to the ACCA’s enumerated crimes,

burglary of a dwelling, arson, extortion, or unlawful use of explosives. Id. at 143,

128 S. Ct. at 1585.

      McGill was decided almost a year after Denson’s sentencing and involved

whether the same Florida offense at issue here—possession of a short-barreled

shotgun—was a “violent felony” under the ACCA’s residual clause. See McGill,

618 F.3d at 1274. In McGill, this Court applied Begay and determined that, while

possession of a short-barreled shotgun presented a serious risk of physical injury to

another, the risk was “not ‘similar in kind’ to ‘use of explosives,’ its closest

enumerated analog” in the ACCA. Id. at 1277. Thus, Florida’s short-barreled

shotgun offense is not a “violent felony” under the ACCA. Id. at 1279.




                                               6
              Case: 14-10211      Date Filed: 09/30/2015     Page: 7 of 10


      Denson maintains these cases show that his Florida short-barreled shotgun

offense should not have been deemed a “crime of violence,” and, had his counsel

made a Begay-like objection, the sentencing court would not have designated

Denson a career offender under the guidelines.

      Denson’s argument is foreclosed by our recent precedent in United States v.

Hall. Like Denson, the defendant in Hall relied upon Begay and McGill to argue

that “the analysis for the term ‘crime of violence’ is exactly the same because the

two definitions are virtually identical” and, therefore, possession of a short-

barreled shotgun cannot be a crime of violence under the career-offender guideline.

Hall 714 F.3d at 1273. This Court rejected that argument based on United States v.

Stinson, in which the Supreme Court “made clear that ‘commentary in the

Sentencing Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.’” Id. at 1272

(quoting Stinson, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915 (1993)) (brackets

omitted). In Hall, this Court concluded that because “Stinson controls,” and the

guidelines commentary designating the possession of a short-barreled shotgun as a

crime of violence is authoritative and binding, the usual “categorical approach”

used in Begay and McGill to determine if an offense falls within the residual

clause does not apply. Id. at 1274. We further determined that the commentary


                                               7
              Case: 14-10211     Date Filed: 09/30/2015    Page: 8 of 10


did not fall within “Stinson’s stringent exception requirements, as the commentary

provision violates neither the Constitution nor any other federal statute, and it is

not inconsistent with, or a plainly erroneous reading of, the guideline text itself.”

Id.

      Although Denson attempts to distinguish Hall on its facts, Hall’s legal

conclusion—as to the binding effect of U.S.S.G. § 4B1.2’s commentary—controls

the outcome of Denson’s ineffective assistance claim. We also reject Denson’s

argument that Hall was undermined to the point of abrogation by Descamps v.

United States, 570 U.S. ___, 133 S. Ct. 2276 (2013). Contrary to Denson’s

contention, Hall did not employ the modified categorical approach addressed in

Descamps, and this panel remains bound by Hall. In any event, to the extent

Denson contends that Hall is wrongly decided, reasonably effective representation

does not include a requirement that trial counsel make arguments or objections

based on predictions as to how the law may develop. See Marquard v. Sec’y for

Dep’t of Corrs., 429 F.3d 1278, 1313 (11th Cir. 2005) (explaining that counsel’s

performance was not ineffective for failing to contemplate a future Supreme Court

decision).

                                  V. PREJUDICE

      Denson also failed to show prejudice under Strickland. To prove prejudice,

“[t]he defendant must show that there is a reasonable probability that, but for


                                              8
              Case: 14-10211    Date Filed: 09/30/2015   Page: 9 of 10


counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Because Florida’s

offense of possession of a short-barreled shotgun is a “crime of violence” under

U.S.S.G. § 4B1.2’s binding commentary, Denson has not shown that any objection

by defense counsel to Denson’s career offender status would have been likely to

change the outcome of his sentencing.

  VI. JOHNSON v. UNITED STATES, 576 U.S. ___, 135 S. Ct. 2551 (2015)

      In Johnson, the Supreme Court held that the residual clause of the ACCA is

unconstitutionally vague. Johnson, 576 U.S. ___, ___, 135 S. Ct. 2551, 2257,

2253. We have held that “the decision of the Supreme Court in Johnson is limited

to criminal statutes that define elements of a crime or fix punishments” and does

not apply to the advisory sentencing guidelines that “do neither.” United States v.

Matchett, ___ F.3d ___, No. 14-10396, 2015 WL 5515439, at *6 (11th Cir. Sept.

21, 2015). The vagueness doctrine in Johnson “does not apply to [the] advisory

sentencing guidelines.” Id. Further, “[b]ecause there is no constitutional right to

sentencing guidelines—or, more generally, to a less discretionary application of

sentences than that permitted prior to the Guidelines—the 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 *7 (quotations omitted). Accordingly,

Denson’s arguments based on Johnson fail on the merits.


                                             9
             Case: 14-10211     Date Filed: 09/30/2015   Page: 10 of 10


      In addition, as the government points out in its supplemental brief, prior to

Johnson, no court had held the residual clause void for vagueness, and indeed the

Supreme Court had twice held that the residual clause was not vague. James v.

United States, 550 U.S. 192, 210 n.6, 127 S. Ct. 1586, 1598 n.6 (2007); Sykes v.

United States, 564 U.S. ___, ___, 131 S. Ct. 2267, 2277 (2011). Trial counsel is

not required to make argument or raise objections based on predictions as to how

the law may develop. See Marquard, 429 F.3d at 1313. This is a second

independent reason why Johnson has no impact on our previous decision that

Denson had failed to show deficient performance resulting in prejudice.

      For these reasons, the district court properly denied Denson’s § 2255 claim

of ineffective assistance of counsel.

      AFFIRMED.




                                            10
