                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0065n.06

                                         No. 17-5333

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

BOBBY JOE GIPSON,                                      )                        FILED
                                                       )                  Feb 07, 2018
       Petitioner-Appellant,                           )              DEBORAH S. HUNT, Clerk
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
UNITED STATES OF AMERICA,                              )      COURT FOR THE WESTERN
                                                       )      DISTRICT OF TENNESSEE
       Respondent-Appellee.                            )
                                                       )
                                                       )



       Before: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Bobby Gipson challenges under 28 U.S.C. § 2255 a prison

sentence he received nearly 20 years ago. He contends that he was sentenced under the “residual

clause” of the then-mandatory Sentencing Guidelines, which required higher sentences for

defendants with at least two prior convictions for crimes involving “conduct that presents a

serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (1997). In Johnson

v. United States, the Supreme Court found unconstitutionally vague an identically worded clause

in the Armed Career Criminal Act. 135 S. Ct. 2551, 2557 (2015). Gipson argues that sentences

decided under the Guidelines’ residual clause when that clause was still mandatory—i.e., as

binding on courts as the Armed Career Criminal Act—are likewise unconstitutional under

Johnson.
No. 17-5333
Gipson v. United States

       That argument comes to us in the context of a § 2255 motion, so Gipson’s motion is

untimely unless Johnson recognized a new right that applies retroactively to him on collateral

review. See 28 U.S.C. § 2255(f)(3). The problem, then, is that Johnson dealt only with the

Armed Career Criminal Act, not with the Guidelines. See Welch v. United States, 136 S. Ct.

1257, 1265 (2016). That leaves defendants sentenced under the Guidelines’ residual clause—

even when that clause was mandatory—without “a ‘right’ that ‘has been newly recognized by the

Supreme Court’ let alone one that was ‘made retroactively applicable to cases on collateral

review.’” Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017) (quoting § 2255(f)(3)).

       We acknowledge the irony that a defendant in a similar position to that of the defendant

in Johnson seems unable even to seek the same relief. But the fact of the matter is that Gipson

can seek relief under § 2255(f)(3) only if the Supreme Court recognizes a new right that applies

retroactively to him. And per Raybon the Court has not yet done so.

       The district court’s judgment is affirmed.




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