                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-276


In Re:    CREADELL HUBBARD,

                 Movant.




On Motion under 28 U.S.C. § 2244 for Order Authorizing District
Court to Consider Second or Successive Application for Relief
under 28 U.S.C. § 2255 in the United States District Court for
the Eastern District of North Carolina, at Raleigh. Terrence W.
Boyle, District Judge. (5:88-cr-00040-BO-1)


Argued:    January 28, 2016                Decided:   June 8, 2016


Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Motion granted by published opinion.     Judge Gregory wrote the
opinion, in which Judge Harris and Senior Judge Davis joined.


ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Movant.    Seth Morgan Wood, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Respondent.    ON
BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh,
North Carolina, for Movant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Respondent.
GREGORY, Circuit Judge:

       Movant Creadell Hubbard seeks pre-filing authorization to

pursue a successive § 2255 petition for habeas relief.                     For the

reasons that follow, we grant his motion.



                                        I.

       On   July   19,   1988,   Creadell    Hubbard    was     indicted   on   the

following numbered criminal counts:            (1) armed bank robbery, 18

U.S.C. § 2113(a) & (d); (2) carrying a firearm during a crime of

violence, id. § 924(c)(1) & (3); (3) possessing stolen money,

id. § 2113(c) & (d); and (4) conspiracy to possess stolen money,

id.    Hubbard was convicted by a jury on all four counts.                      The

district      court   determined   at   sentencing       that    Hubbard    was   a

career offender under U.S. Sentencing Guidelines Manual § 4B1.1

(U.S. Sentencing Comm’n 1988) (“Sentencing Guidelines”) because

two of his prior convictions were for “crime[s] of violence.”

United States v. Hubbard, No. 89-5146, 1990 WL 194520, at *2

(4th Cir. Dec. 10, 1990) (unpublished).                 The prior convictions

were    for     second-degree      murder     and      Kentucky     third-degree

burglary.       Id. at *3.        Counts 1, 3, and 4 were merged for

sentencing purposes, and the district court imposed a 327-month

term of imprisonment for those counts, along with a consecutive

sixty-month prison term for Count 2.             In addition, the district

court imposed a three-year term of supervised release.

                                        2
      Hubbard timely appealed to this Court, citing as error the

district court’s (1) failure to sever his trial from that of his

codefendant; (2) denial of his motion for judgment of acquittal

for insufficiency of the evidence; and (3) finding that Kentucky

third-degree        burglary        was        a       predicate      crime      of    violence

supporting his career-offender status.                           Id. at *1-3.         Hubbard’s

convictions and sentence were affirmed.                               Id. at *2, *4.          In

April 1997, Hubbard filed a motion to vacate under 28 U.S.C.

§ 2255.      Proceedings           on    that          motion    ultimately      resulted     in

summary judgment against Hubbard and dismissal of his subsequent

appeal to this Court.               United States v. Hubbard, No. 99-7147,

2000 WL 328084, at *1 (4th Cir. Mar. 29, 2000) (unpublished).

      In August 2015, Hubbard filed a pro se motion with this

Court     seeking      an    order       authorizing            the     district      court   to

consider a successive § 2255 motion, citing Johnson v. United

States, 135 S. Ct. 2551 (2015).                        We now address that motion.



                                                II.

      Successive petitions for federal habeas corpus review under

§ 2255    may    not    be    filed       in       a    district      court   without     prior

approval from a circuit court of appeals.                             28 U.S.C. § 2255(h);

In   re   Vassell,      751    F.3d       267,         268-69    (4th    Cir.    2014).       In

deciding        whether       to        grant           the     motion     for        pre-filing

authorization, this Court must determine whether it relies on

                                                   3
        (1) newly discovered evidence that, if proven and
            viewed in light of the evidence as a whole, would
            be sufficient to establish by clear and convincing
            evidence that no reasonable factfinder would have
            found the movant guilty of the offense; or

        (2) a new rule of constitutional law, made retroactive
            to cases on collateral review by the Supreme
            Court, that was previously unavailable.

§ 2255(h).      It is the latter of these that Hubbard seeks to

show.

        Hubbard argues that the Supreme Court’s decision in Johnson

produced a new rule of constitutional law made retroactive by

that Court, and that he is entitled to seek relief under the new

rule.     While his motion was pending, the Supreme Court decided

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

Hubbard’s position that the rule in Johnson is retroactive.                        Id.

at   1265.     With    the    retroactivity       of    Johnson   established,      it

remains for this Court to determine whether the rule can support

Hubbard’s habeas claims.

        Hubbard argues that the holding in Johnson can provide him

relief    in   two    ways.         First,   he   seeks     to   apply   Johnson   to

eliminate his conviction for carrying a firearm during a crime

of violence (Count 2), arguing that federal armed bank robbery

(Count 1 and the predicate for Count 2) is no longer a crime of

violence under        the    rule    established       in   Johnson.     Second,   he

seeks to challenge his career-offender status by arguing that,

under     Johnson,      Kentucky       third-degree         burglary     no   longer

                                             4
qualifies            as    a      crime     of     violence            under      the    Sentencing

Guidelines.               Since Hubbard’s motion was filed, this Court has

decided, consonant with our precedent, that federal armed bank

robbery is a crime of violence, specifically under the “force

clause”         of    18       U.S.C.     § 924(c)(3),           and     that    the     holding    in

Johnson is inapplicable.                   United States v. McNeal, 818 F.3d 141,

151-57 (4th Cir. 2016).                    As a result, the only one of Hubbard’s

claims that remains viable is his argument that his Kentucky

third-degree burglary conviction is no longer a predicate for

establishing his career-offender status.

       In analyzing the motion, we need not decide whether Hubbard

will       ultimately           prevail     on    his       claim,        only     whether    he    is

entitled to pursue a successive claim.                              In re Williams, 330 F.3d

277, 282 (4th Cir. 2003).                    At this stage, the moving party need

only       “make[]         a     prima     facie          showing        that    the     application

satisfies            the   requirements          of       [§ 2244]”        to    gain    pre-filing

authorization.                 28 U.S.C. § 2244(b)(3)(C). 1                 Thus, Hubbard only

needs      to    show       that    he     “presents         a    claim     that    ‘relies    on    a

[qualifying] new rule of constitutional law,’” In re Vassell,

751     F.3d         at    271     (quoting        § 2244(b)(2)(A))               (alteration       in

Vassell)        (emphasis          added),       and       that     he    makes     “a   sufficient



       1
       While Hubbard’s motion relies on § 2255, that provision
incorporates by reference the factors listed in § 2244.



                                                      5
showing of possible merit to warrant a fuller exploration by the

district      court,”    Williams,          330    F.3d    at      281   (citation     and

internal quotation marks omitted).

       We now turn to the substance of Hubbard’s remaining claim.



                                            III.

       In 2015, the Supreme Court struck the residual clause of

the        Armed     Career      Criminal          Act       (“ACCA”)        for     being

unconstitutionally vague in violation of the Due Process Clause

of the Fifth Amendment.              Johnson, 135 S. Ct. at 2555-57.                  “The

void-for-vagueness           doctrine       prohibits        the     government       from

imposing sanctions ‘under a criminal law so vague that it fails

to give ordinary people fair notice of the conduct it punishes,

or    so    standardless      that     it   invites       arbitrary      enforcement.’”

Welch, 136 S. Ct. at 1262 (quoting Johnson, 135 S. Ct. at 2556).

The    now-invalidated          ACCA    residual          clause     made     any    crime

punishable by more than one year in prison and that “otherwise

involve[d] conduct that present[ed] a serious potential risk of

physical      injury    to    another”       a     violent      felony.       18    U.S.C.

§ 924(e)(2)(B)(ii).             Applying          the    vagueness       doctrine,     the

Supreme      Court   concluded       that    the    ACCA’s        residual   clause    was

unconstitutional        under    both       standards:       it    failed    to     provide

“fair notice to defendants” and “invite[d] arbitrary enforcement

by judges.”        Johnson, 135 S. Ct. at 2557.

                                             6
      In this case, the parties do not dispute that Johnson would

permit the Court to authorize a petitioner to file a successive

§ 2255      motion        under    the     appropriate        circumstances:         Johnson

announced     a    new     rule    of    constitutional         law    that    the   Supreme

Court made retroactive and that was previously unavailable.                               See

28 U.S.C. § 2255(h)(2).                  Instead, the government argues that

Hubbard’s     claim        fails    on     two       grounds:    first,       that   Johnson

applies     only     to    the    ACCA’s    residual         clause,   not     to    residual

clauses found at 18 U.S.C. §§ 16(b) & 924(c)(3)(B); and second,

that Hubbard’s challenge fails regardless because his sentence

was   determined          using    the   Sentencing       Guidelines         (which,    until

November 1989, incorporated by express reference the definition

of “crime of violence” set forth in § 16(b) into the career-

offender guideline), making application of Johnson to this case

procedural         (rather        than     substantive)          and      therefore      not

retroactive.         We are not persuaded by either of the government’s

contentions.

                                             A.

      Turning to the government’s first argument, this Court must

answer    whether         the    Johnson   rule       applies    to    the    distinct    but

similar residual clause at issue in Hubbard’s case.

      “In    determining          whether     a      prior    conviction       triggers    a

sentence      enhancement          under     the        Sentencing      Guidelines,       we

approach the issue categorically, looking only to the fact of

                                                 7
conviction and the statutory definition of the prior offense.”

United    States    v.   Montes-Flores,        736    F.3d   357,    364     (4th    Cir.

2013) (citation and internal quotations omitted).                       The statute

under which Hubbard was convicted defines third-degree burglary

as   burglary      of    a    building,    and    “building”        refers    to     both

dwellings    and    nondwellings.          Hubbard,     1990   WL    194520,        at   *3

(citing     Ky.Rev.Stat.Ann.        §§ 511.010,       511.040).         Hubbard          was

sentenced on April 21, 1989, as a career offender under U.S.S.G.

§ 4B1.1, 2 which in turn relied on § 4B1.2 for definitions of key

terms.    At that time, as noted, § 4B1.2 defined the term “crime

of   violence”      by       reference    to     18   U.S.C.   § 16.          U.S.S.G.

§ 4B1.2(1) (U.S. Sentencing Comm’n 1988); see also 18 U.S.C.

§ 16(b) (1988) (defining “crime of violence” as one that “by its

nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of

committing the offense”).                Under that definition the district

court found, and a panel of this Court affirmed, that Kentucky

     2   At the time, the relevant provision read:

            A defendant is a career offender if (1) the
            defendant was at least eighteen years old at the
            time of the instant offense, (2) the instant
            offense of conviction is a felony that is either
            a crime of violence or a controlled substance
            offense, and (3) the defendant has at least two
            prior felony convictions of either a crime of
            violence or a controlled substance offense.

U.S.S.G. § 4B1.1 (U.S. Sentencing Comm’n 1988).



                                           8
third-degree burglary was a crime of violence.                        Hubbard, 1990 WL

194520, at *3.        The offense was therefore treated as one of the

predicate crimes of violence contributing to Hubbard’s career-

offender    status      for      purposes         of   applying          the    Sentencing

Guidelines.      Hubbard         now   seeks       permission       to     challenge   his

career-offender status by applying the new constitutional rule

announced in Johnson to the § 16(b) definition of a crime of

violence (and thereby to the then-relevant version of U.S.S.G.

§ 4B1.2).

     The    government      argues     that       Johnson      only      invalidated    the

residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B), and has

no   application      to    18    U.S.C.     § 16(b)          or   other       nonidentical

residual clauses. 3        Hubbard counters that his burden is merely to

show that it is plausible that the rule announced in Johnson

renders § 16(b) unconstitutionally vague.                          In other words, he

argues   that   the    government       is       making   a    merits      argument    that

     3 The government also argued elsewhere in its brief that the
rule in Johnson does not apply to 18 U.S.C. § 924(c)(3)(B). We
no longer need to address that argument directly because McNeal
resolved the only relevant issue presented in this case (whether
armed bank robbery is a crime of violence) that possibly
involved that provision. We note, however, that the language of
§ 16(b) is identical to that in § 924(c)(3)(B), and we have
previously treated precedent respecting one as controlling
analysis of the other. United States v. Fuertes, 805 F.3d 485,
500 (4th Cir. 2015); see also United States v. Taylor, 814 F.3d
340, 377 (6th Cir. 2016) (relying on Supreme Court’s § 16(b)
precedent   to  interpret   § 924(c)(3)(B));  United   States  v.
Serafin, 562 F.3d 1105, 1108 & n.4 (10th Cir. 2009) (same).



                                             9
would be properly presented to the district court in response to

a § 2255 motion but that is premature at this preliminary stage.

       As     previously       explained,              § 16(b)       defines       a       “crime     of

violence” as one that “by its nature, involves a substantial

risk    that       physical    force        against        the      person    or       property      of

another may be used in the course of committing the offense.”

§ 16(b).       Like the provision invalidated by Johnson, § 16(b) is

a    residual        clause    expanding           the     definition        of        a    crime     of

violence.          However, the Court in Johnson was dealing with the

ACCA’s        residual        clause,            which        was        formulated          somewhat

differently.            See Fuertes, 805 F.3d at 499 n.5 (explaining that

“[t]he       two    formulations        .    .     .    are   similarly        worded        but    not

identically so”).             It stated that a crime was an appropriate

predicate          offense    if   it       “otherwise           involve[d]        conduct          that

present[ed]         a    serious   potential             risk       of    physical         injury    to

another.”               18   U.S.C.         § 924(e)(2)(B)(ii).                    This       textual

difference, the government argues, combined with several other

distinguishing characteristics, leaves § 16(b) beyond the scope

of     the     rule      articulated          in        Johnson.           Specifically,            the

government argues that § 16(b) is “materially narrower” than the

ACCA residual clause, that it does not contain a “confusing list

of   enumerated          offenses,”         and    that       the    ACCA     residual         clause

reaches conduct occurring outside the commission of an offense

while § 16(b) does not.

                                                   10
        Given the relatively low bar Hubbard must get over, the

government’s arguments are unconvincing.                     Even accepting them

all as undisputed, which they are not, it is not at all clear

these arguments would be enough to show that Hubbard has failed

to establish a prima facie case.                 All Hubbard need show is that

there is “a new rule of constitutional law, made retroactive to

cases    on   collateral       review     by    the   Supreme      Court,    that     was

previously     unavailable.”         § 2255(h)(2).           In    fact,    it   is   not

entirely clear which of these three § 2255(h)(2) elements the

government contends Hubbard does not meet.                        The most plausible

interpretation of the government’s position is that Hubbard’s

present motion fails the third element—that the new rule was

previously      unavailable—not           because      the    Johnson       rule      was

previously available to him, but because the third § 2255(h)(2)

element    implies      that   a    movant      may   only   obtain    authorization

where the new rule becomes available to him insofar as it can

affect his case.          Thus, the government could be understood to

argue, a plaintiff cannot proceed even from this early stage if

the new constitutional rule cannot affect the provision on which

his conviction or sentence was based.                  The argument fails here,

however,      because    it    is   for   the    district     court    to    determine

whether the new rule extends to the movant’s case, not for this

court in this proceeding.             In re Encinias, --- F.3d ----, 2016

WL 1719323 (10th Cir. Apr. 29, 2016) (per curiam); see also In

                                           11
re Robinson, No. 16–11304–D, ––– F.3d ––––, 2016 WL 1583616, at

*2   n.2      (11th    Cir.    Apr.   19,    2016)     (Martin,          J.,       concurring)

(noting       that    every    circuit     except     the    Eleventh          has       held   or

assumed Johnson applies to the Sentencing Guidelines).

      The government is making a merits argument:                          its contention

that the Johnson rule does not render similar language in a

closely related provision unconstitutional is an argument about

the proper application of the new rule in Johnson.                                 And at this

stage,     a     merits       argument      faces     an     almost        insurmountable

hurdle:       while    determining        whether    to     authorize          a    successive

petition “may entail a cursory glance at the merits . . . the

focus    of    the    inquiry      must    always    remain       on    the    § 2244(b)(2)

standards.”           Williams, 330 F.3d at 282; see also id. (noting

that, for example, authorization to challenge a conviction for

constitutional          error       will     be     granted        where           application

“adequately alleging some constitutional violation” is presented

(emphasis added)).             The fact that two federal circuit courts

already have concluded that § 16(b) is unconstitutionally vague

under Johnson, see United States v. Vivas-Ceja, 808 F.3d 719,

720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 110 (9th Cir.

2015), likely is enough to establish that Hubbard has made “a

sufficient       showing      of    possible        merit    to        warrant       a    fuller




                                             12
exploration by the district court,” Williams, 330 F.3d at 281. 4

In any event, that Hubbard has met this threshold burden is

confirmed    by    our    own    “glance”     at   the    government’s      merits

arguments.

     In Johnson, the Supreme Court found “[t]wo features of the

[ACCA’s]    residual     clause”    problematic:     that    it   “leaves    grave

uncertainty about how to estimate the risk posed by a crime” and

that it “leaves uncertainty about how much risk it takes for a

crime to qualify as a violent felony.”               Johnson, 135 S. Ct. at

2557-58 (emphasis added).           The first of these problems resulted

largely     from   the    ACCA     residual    clause’s     invocation      of   “a

judicially imagined ‘ordinary case’ of a crime” rather than the

“real-world facts or statutory elements.”                   Id. at 2557.         The

Court noted that such an analysis put judges in an impossible



     4  We note that the circuits are divided as to whether
§ 16(b) and § 924(c)(3)(B) are unconstitutionally vague under
Johnson.   A panel of the Fifth Circuit agreed with the Seventh
and    Ninth   Circuits    that   Johnson   renders    §   16(b)
unconstitutionally vague, but the court has granted rehearing.
United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir.
2016), reh’g en banc ordered, 815 F.3d 189.    The Sixth Circuit
has concluded that § 924(c)(3)(B) is not unconstitutionally
vague, Taylor, 814 F.3d at 376, completing (for now) the circuit
split.    We have previously declined (as unnecessary to the
decision) to opine on whether Johnson’s holding applies to the
residual clauses embodied in those provisions, e.g., Fuertes,
805 F.3d at 499 n.5, and in the context of our consideration of
Hubbard’s motion for authorization to proceed in the district
court, we have no occasion to rule on the merits of his claim
beyond the “glance” discussed in text.



                                        13
position:       “How does one go about deciding what kind of conduct

the ‘ordinary case’ of a crime involves?”                        Id.; see also 18

U.S.C. § 924(e)(2)(B)(ii) (defining a violent felony as one that

“otherwise involves conduct that presents a serious potential

risk of physical injury to another” (emphasis added)).

       The second problematic feature of the ACCA residual clause,

uncertainty regarding the quantum of risk necessary for a crime

to     become     a      violent      felony,     arises       from      two       textual

sources:       the requirement that the “judge-imagined abstraction”

of     the    ordinary     case    be    analyzed      using     a    vague    “serious

potential risk” standard, and the existence of a “confusing”

enumerated list of exemplary offenses.                      Johnson, 135 S. Ct. at

2558.        The Court indicated that a vague standard is one thing,

but applying it to imaginary instances of crimes is another.

Id.     Moreover, the standard was made more vague by tying it to

four    enumerated       offenses—burglary,           arson,    extortion,         or   any

offense involving the use of explosives—which “are ‘far from

clear    in    respect     to   the     degree   of    risk    each   poses.’”          Id.

(quoting Begay v. United States, 553 U.S. 137, 143 (2008)).

       As Hubbard argues, § 16(b) presents both of these issues.

It invokes the ordinary case by referring, not to the facts of

the    case,    but   to    the    “nature”      of   the     offense.        18   U.S.C.

§ 16(b).       The provision also applies almost the exact same vague

standard—“involves a substantial risk”—to the abstract ordinary

                                           14
case.    Id.     This Court has acknowledged the similarities between

the “operative language” in the ACCA’s residual clause struck

down in Johnson and that in § 16(b) at issue here.                                 See United

States v. Martin, 215 F.3d 470, 474 n.4 (4th Cir. 2000).                                   Only

one of the problems with ACCA’s residual clause is absent from

§ 16(b):      the      enumerated      list       of    offenses.            But   while    the

Johnson Court noted that the list made the residual clause more

vague    rather       than    less    so,       its    reliance      on   that     issue    was

limited.         See    Vivas–Ceja,         808       F.3d    at    723   (“The     list    [of

enumerated offenses] itself wasn’t one of the ‘two features’

that combined to make the clause unconstitutionally vague.”).

We     cannot       determine,       at     a     glance,          whether     this    single

dissimilarity         is     sufficient     to        distinguish     § 924(e)(2)(B)(ii)

from § 16(b).          It would therefore be for the district court to

make that determination following a more detailed briefing of

this merits issue.

       The    same     is     true    of    the       government’s        other     principal

argument, namely, that § 16(b) is “materially narrower” than the

ACCA provision.            It is true that § 16(b) limits its application

to instances involving the “risk that physical force” will be

used    “in     the    course    of    committing            the    offense,”      Leocal    v.

Ashcroft, 543 U.S. 1, 10 & n.7 (2004) (quoting § 16(b)), whereas

the ACCA’s residual clause reached risks precipitated by the

offense but occurring after its completion, see Johnson, 135

                                                15
S. Ct. at 2557.              In fact, the Johnson Court noted that “the

inclusion        of    burglary       and      extortion       among      the    enumerated

offenses preceding the [ACCA] residual clause confirms that the

court’s task also goes beyond evaluating the chances that the

physical        acts   that    make       up   the     crime    will      injure     someone”

because violence related to those crimes is most likely to occur

after the burglary or extortion has already been committed.                                  Id.

But   this       distinction        between      the    ACCA     residual       clause       and

§ 16(b),        as    presented      by    the   government,         goes    more      to    the

breadth of the two clauses than their vagueness.

      The Johnson Court stated that its concern with the ACCA

residual clause was that “unlike the part of the definition of a

violent felony that asks whether the crime ‘has as an element

the   use . . .        of    physical       force,’      the    residual        clause      asks

whether the crime ‘involves conduct’ that presents too much risk

of physical injury.”                Id. (alteration in original).                    Likewise,

§ 16(b) eschews the reference to the elements of a crime found

in the preceding § 16 force clause, 18 U.S.C. § 16(a), instead

addressing itself to any crime that “involves a substantial risk

that physical force against the person or property of another

may   be   used,”       § 16(b).          Although     facts     relevant       to    an    ACCA

analysis occupy a broader period of time, § 16(b) still asks

courts     to    assess      “the    risk      that    the     use   of    physical        force

against     another         might    be     required     in     committing       a    crime,”

                                               16
Leocal, 543 U.S. at 10 (emphasis added), an exercise we cannot

say at this stage does not “invite[] arbitrary enforcement by

judges,” Johnson, 135 S. Ct. at 2556.

        Moreover,   and     perhaps       paradoxically,       it     is    largely    the

enumerated       offenses    in    the    ACCA    which      caused    that     residual

clause’s greater breadth.                Johnson, 135 S. Ct. at 2557.                  As

such, our reasons for rejecting the list of enumerated offenses

as a sufficient point of distinction apply equally here.                               The

Johnson       Court’s    focus    was     on     the   abstraction          involved   in

analyzing an ordinary case, and the distinction the government

has     raised    between     these       provisions         does    not      render   it

implausible       that    § 16(b),       too,    is    unconstitutionally         vague.

Again, that is a merits argument that is sufficiently close to

warrant presentation to the district court.                    In re Encinias, ---

F.3d at ---, 2016 WL 1719323, at *1.

                                           B.

        The   government’s       second    argument     is    that     the    Sentencing

Guidelines are procedural rules, that application of the Johnson

rule to the Sentencing Guidelines would therefore be procedural,

and that as a result Hubbard cannot satisfy the second § 2244

prima facie       element    (retroactive         application)        because,    “[n]ew

rules    of    constitutional      criminal       procedure     are        generally   not

applied retroactively on collateral review.”                        United States v.

Sanders, 247 F.3d 139, 147-48 (4th Cir. 2001) (citing Teague v.

                                           17
Lane, 489 U.S. 288 (1989) (plurality opinion)).                     In other words,

while it admits the Johnson rule is substantive when applied to

§ 924(c)(3)(B), 5 the government contends it is merely procedural

when applied to the Sentencing Guidelines, and that retroactive

application is therefore barred by Teague.

       A     rule    is     substantive     if    it    addresses        “‘substantive

categorical guarante[es] accorded by the Constitution,’ such as

a rule ‘prohibiting a certain category of punishment for a class

of defendants because of their status or offense.’”                         Frazer v.

South Carolina, 430 F.3d 696, 704 n.4 (4th Cir. 2005) (quoting

Saffle v. Parks, 494 U.S. 484, 494 (1990)).                     “In contrast, rules

that regulate only the manner of determining the defendant’s

culpability are procedural.”                Schriro v. Summerlin, 542 U.S.

348,       353    (2004).      The    government       argues     that    § 16(b)    as

incorporated         into     the    Sentencing    Guidelines       is      procedural

because (1) it does not change the range of legally permissible

outcomes (which are limited by statutory minimums and maximums)

and (2) errors in calculating a defendant’s advisory guidelines

range      have     been    characterized    as   procedural       by     the   Supreme

Court.      Neither argument is convincing.

       To begin, the decision in Welch declared unequivocally that

Johnson      was    “a     substantive    decision     and   so    has     retroactive

       5   See note 4, supra.



                                           18
effect under Teague in cases on collateral review,” Welch, 136

S. Ct. at 1265, and the government has cited no case to support

the proposition that a rule can be substantive in one context

but procedural in another.                  Cf. Danforth v. Minnesota, 552 U.S.

264, 266 (2008) (“New constitutional rules announced by this

Court that place certain kinds of primary individual conduct

beyond       the   power      of    the     States       to     proscribe,     as   well    as

‘watershed’ rules of criminal procedure, must be applied in all

future       trials,    all    cases       pending       on   direct     review,    and    all

federal habeas corpus proceedings.”).

       The Welch Court also noted that “[b]y 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.’”         Welch, 136 S. Ct. at 1265 (quoting Schriro, 542

U.S.    at    353).        Likewise,        striking      down     the   residual     clause

embodied in § 16(b), and thereby removing it from the applicable

version of the Sentencing Guidelines, would “alter[] the range

of     conduct     or   the        class     of       persons    that    the    [Sentencing

Guidelines] punishes.”              Id. (quotation marks omitted).                  That is,

the “substantive reach” of the Sentencing Guidelines would be

altered just as much as was true for the ACCA.                             If the Johnson

rule does invalidate § 16(b), some crimes will no longer fit the

Sentencing Guidelines’ definition of a crime of violence and

                                                 19
will therefore be incapable of resulting in a career-offender

sentencing    enhancement.         In    such    cases,        application     of   the

Johnson rule will operate to “prohibit[] a certain category of

punishment for a class of defendants because of their status.”

Frazer, 430 F.3d at 704 n.4.             A defendant may still be subject

to the same statutory range of punishments, but “‘even the use

of    impeccable    factfinding    procedures          could    not    legitimate’    a

sentence based on that clause” (that is, U.S.S.G. § 4B1.2(1) as

it existed at the time of sentencing).                    Welch, 136 S. Ct. at

1265 (emphasis      added)    (quoting        United    States    v.    U.S.   Coin   &

Currency, 401 U.S. 715, 724 (1971)).

       Moreover,    although      available      sentences        are    technically

controlled     by      statute,    the        Sentencing        Guidelines     hardly

represent a mere suggestion to courts about the proper sentences

defendants     should     receive.            “The     federal        system   adopts

procedural measures intended to make the Sentencing Guidelines

the    lodestone    of   sentencing.”          Peugh    v.     United   States,     133

S. Ct. 2072, 2084 (2013).          This was even more true when Hubbard

was sentenced in 1989 as United States v. Booker, 543 U.S. 220

(2005), had not yet been decided and the Sentencing Guidelines

were still being treated as mandatory.                    The government points

out    that   errors     in   calculating        the     appropriate      Sentencing

Guidelines range are procedural, Peugh, 133 S. Ct. at 2080, but

fails to address the Supreme Court’s express description of the

                                         20
Sentencing      Guidelines      as    “the   substantive        ‘formula’      used   to

calculate the applicable sentencing range,” id. at 2088 (quoting

Cal.    Dep’t    of    Corr.    v.    Morales,    514    U.S.    499,    505    (1995))

(quotation marks omitted); see also Molina–Martinez v. United

States, 136 S. Ct. 1338, 1345 (2016) (“The Guidelines’ central

role in sentencing means that an error related to the Guidelines

can be particularly serious.”).

       Just    as   in   Johnson,      invalidation      of    § 16(b)    would    have

“nothing to do with the range of permissible methods a court

might use to determine whether a defendant should be sentenced”

as a career offender.             Welch, 136 S. Ct. at 1265.                The Welch

Court    noted      that    Johnson     “did     not,    for    example,       allocate

decisionmaking authority between judge and jury, or regulate the

evidence that the court could consider in making its decision,”

and that it was therefore not procedural.                       Id. (citations and

quotation marks omitted).             The same would be equally true in an

application of Johnson to the Sentencing Guidelines, and thus we

are compelled to find that “[b]y the same logic, Johnson is not

a procedural decision.”          Id.



                                          IV.

       Because application of Johnson to § 16(b) as incorporated

into the Sentencing Guidelines might render the career-offender

residual      clause     that   was   applicable    at    the    time    Hubbard      was

                                          21
sentenced unconstitutional, and because the rule in Johnson is

substantive with respect to its application to the Sentencing

Guidelines   and   therefore   applies   retroactively,   this   Court

grants Hubbard’s request for authorization to file a successive

§ 2255 motion.

                                                      MOTION GRANTED




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