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                                                                          [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                           ________________________

                                 No. 16-13338-J
                           ________________________

IN RE LEONARD SAPP,

                                                                           Petitioner.

                         __________________________

               Application for Leave to File a Second or Successive
                          Motion to Vacate, Set Aside,
                    or Correct Sentence, 28 U.S.C. § 2255(h)
                         _________________________

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

B Y T H E P A N E L:

      Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Leonard Sapp has filed

an application seeking an order authorizing the district court to consider a second

or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C.

§ 2255. Such authorization may be granted only if this Court certifies that the

second or successive motion contains a claim involving:

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

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or

successive application only if it determines that the application makes a prima

facie showing that the application satisfies the requirements of this subsection.”

Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351,

1357–58 (11th Cir. 2007) (explaining that this Court’s determination that an

applicant has made a prima facie showing that the statutory criteria have been met

is simply a threshold determination).

      In his application, Mr. Sapp indicates that he wishes to raise one claim in a

second or successive § 2255 motion. Mr. Sapp asserts that his claim relies upon a

new rule of constitutional law, specifically Johnson v. United States, 576 U.S. __,

135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), and Welch v. United States, 578 U.S.

__, ___, 136 S. Ct. 1257, 1264-65, __ L. Ed. 2d __ (2016). He argues that,

pursuant to Johnson, the mandatory career offender enhancement applied to his

sentence, imposed in January 2003, is unconstitutional.

      The Armed Career Criminal Act (“ACCA”) defines a violent felony as any

crime 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; (2) is burglary, arson, or extortion, or involves use of explosives;
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or (3) otherwise involves conduct that presents a serious potential risk of physical

injury to another. 18 U.S.C. § 924(e)(2)(B); Mays v. United States, 817 F.3d 728,

730–31 (11th Cir. 2016).       These three “clauses” are known as the “elements

clause,” the “enumerated clause,” and the “residual clause,” respectively. Mays,

817 F.3d at 731.

      Section 4B1.1 of the Sentencing Guidelines provides that a defendant is

classified as a career offender if he (1) was at least 18 years old at the time of the

offense of conviction; (2) the offense of conviction was either a crime of violence

or a controlled-substance offense; and (3) he had at least two prior felony

convictions of either a crime of violence or a controlled-substance offense.

U.S.S.G. § 4B1.1(a). The guidelines define “crime of violence” as any offense

under federal or state law that is punishable by imprisonment for more than one

year and:

      (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(a).

      On June 26, 2015, the Supreme Court in Johnson held that the residual

clause of the ACCA is unconstitutionally vague because it creates uncertainty

about how to evaluate the risks posed by a crime and how much risk it takes to
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qualify as a violent felony. Johnson, 576 U.S. at ___, 135 S. Ct. at 2557–58, 2563.

The Supreme Court clarified that, in holding that the residual clause is void, it did

not call into question the application of the elements clause and the enumerated

crimes of the ACCA’s definition of a violent felony. Id. at ___, 135 S. Ct. at 2563.

      On April 18, 2016, the Supreme Court held in Welch that Johnson

announced a new substantive rule that applies retroactively to cases on collateral

review. Welch, 578 U.S. at ___, 136 S. Ct. t 1264–65.

      In United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), we held that

the holding of Johnson does not apply to the career-offender guideline, and the

guideline is not unconstitutionally vague. Matchett was an advisory-Guidelines

case. In In re Griffin, No. 16-12012, 2016 WL 3002293 (11th Cir. May 25, 2016),

we held that our reasoning in Matchett applied with equal force to the residual

clause of the career-offender guideline in the context of the mandatory Guidelines.

The Supreme Court has recently granted certiorari in Beckles v. United States, 616

F. App’x 415 (11th Cir. 2015), cert. granted, No. 15-8544 (U.S. June 27, 2016),

which raises the question of whether Johnson applies to the Guidelines. While we

respectfully disagree with the holding of Griffin, we are nonetheless bound by that

decision.

      As a result, Mr. Sapp has not satisfied the statutory criteria for filing a

successive § 2255 motion. First, even though the Supreme Court has held in


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Welch that Johnson applies retroactively to cases on collateral review, our binding

precedent holds that Welch does not make Johnson retroactive for purposes of

filing a successive § 2255 motion raising a Johnson-based challenge to the

Sentencing Guidelines. See Griffin, 2016 WL 3002293, at *5. Furthermore, Mr.

Sapp cannot make a prima facie showing that Johnson applies to him in light of

our holding in Griffin that the mandatory Sentencing Guidelines cannot be

unconstitutionally vague. See Griffin, 2016 WL 3002293, at *4.

      Accordingly, because Mr. Sapp has failed to make a prima facie showing of

the existence of either of the grounds set forth in 28 U.S.C. § 2255(h), his

application for leave to file a second or successive motion is hereby DENIED.




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JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges, concurring.

      Leonard Sapp was sentenced as a career offender in 2003, before the

Supreme Court ruled in United States v. Booker, 543 U.S. 220 (2005), that the

mandatory Sentencing Guidelines were unconstitutional. As a result of Booker, the

Sentencing Guidelines are now advisory, and district courts have broad discretion

to impose a sentence inside or outside the recommended Guidelines range. See

Gall v. United States, 552 U.S. 38, 49 (2007). But in the era before Booker was

decided, the Sentencing Guidelines were “binding on judges.” Booker, 543 U.S. at

234. Indeed, district courts were statutorily required to impose sentences within

the range established by the Guidelines. See 18 U.S.C. 3553(b)(1) (2000 ed.) (“the

court shall impose a sentence of the kind, and within the range” established by the

Guidelines) (emphasis added). See also United States v. R.L.C., 503 U.S. 291, 297

(1992) (explaining, pre-Booker: “The answer to any suggestion that the statutory

character of a specific penalty provision gives it primacy over administrative

sentencing guidelines is that the mandate to apply the Guidelines is itself

statutory.”). As a result, the Supreme Court told us, “the fact that the Guidelines

were promulgated by the Sentencing Commission, rather than Congress, lacks

constitutional significance.” Booker, 543 U.S. at 237. In sum, the mandatory

Sentencing Guidelines had “the force and effect of laws.” Id. at 234.

      Although the mandatory Sentencing Guidelines operated to cabin the


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discretion of judges, just like sentencing statutes passed by Congress, a panel of

our Court recently held that the Supreme Court’s decision in Johnson v. United

States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed

Career Criminal Act, 18 U.S.C. § 924(e), as unconstitutionally vague, does not

apply to the identical residual clause of the mandatory career offender guideline,

U.S.S.G. § 4B1.2(a)(2) (2003). See In re Griffin, No. 16-12012, __ F.3d __, 2016

WL 3002293 (11th Cir. May 25, 2016). The Griffin panel also concluded that,

even if Johnson did apply to the residual clause of the mandatory career offender

guideline, the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257

(2016)—which held that Johnson was retroactive to cases on collateral review—

did not make Johnson retroactive in cases involving challenges to the Sentencing

Guidelines. Although we are bound by Griffin, we write separately to explain why

we believe Griffin is deeply flawed and wrongly decided.

      1.     The Griffin panel said that it was bound by our prior decision in

United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015). See Griffin, 2016 WL

3002293, at *4. But the Griffin panel was not bound by Matchett, whose holding,

in no uncertain terms, applied only to the advisory Sentencing Guidelines. See

Matchett, 802 F.3d at 1193 (“The vagueness doctrine does not apply to advisory

Sentencing Guidelines.”); id. at 1195 (“[A]dvisory guidelines that inform a

sentencing judge’s discretion . . . cannot violate the notice requirement.”).


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      2.     The Griffin panel reasoned that “the logic and principles established in

Matchett” compelled the conclusion that the mandatory Sentencing Guidelines

could not be challenged under Johnson. See Griffin, 2016 WL 3002293, at *4.

This makes little sense, however, because the holding in Matchett hinged on the

advisory nature of the Guidelines post-Booker. See Matchett, 802 F.3d at 1194

(“Any expectations subject to due process protection . . . that a criminal defendant

would receive a sentence within the presumptively applicable guideline range did

not survive [the] decision in United States v. Booker.”) (citation omitted).

      Matchett explained that the advisory Guidelines “are merely the starting

point and the initial benchmark, designed to assist the sentencing judge in

determining a sentence.” Matchett, 802 F.3d at 1194 (internal quotation marks,

citations, and ellipses omitted).    It emphasized that “[t]he sentencing judge’s

authority to exercise discretion distinguishes the Guidelines from criminal statutes

in a significant and undeniable manner.” Id. (quoting United States v. Tichenor,

683 F.3d 358, 364 (7th Cir. 2012)). And Matchett distinguished precedent from

another circuit because it dealt with the mandatory, and not the advisory,

Guidelines. See Matchett, 802 F.3d at 1196 (“[T]he Ninth Circuit has stated, in

dicta, that the Sentencing Guidelines can be void for vagueness, but that decision

was issued when the guidelines were still mandatory.”).

      By failing to recognize a distinction between the mandatory and advisory


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Sentencing Guidelines, the Griffin panel stretched Matchett beyond recognition.

The principle underlying Matchett—that the advisory Guidelines do not fix

sentences because district courts are permitted, and indeed obligated, to exercise

discretion in sentencing—simply does not map onto the mandatory Guidelines in

any way. Given the binding nature of the mandatory Guidelines, the Griffin panel

could not rely on the Matchett rationale to justify its failure to apply the notice

requirement of the Due Process Clause and corresponding vagueness principles.

Cf. United States v. Lee, ___ F.3d ___, 2016 WL 2638364, at *10 (9th Cir. May 6,

2016) (Ikuta, J., dissenting) (direct appeal case challenging a career offender

sentence under the discretionary Guidelines: “In light of the fact that the

discretionary Sentencing Guidelines do not raise the same constitutional concerns

as mandatory sentencing provisions, I would conclude that any vagueness in the §

4B1.2 residual clause does not violate the Due Process Clause.”).

      We have recognized a distinction between the mandatory and advisory

Guidelines in cases discussing the rule of lenity, a canon of statutory construction

that the Supreme Court has called a “junior version of the vagueness doctrine”

because it is similarly concerned with providing fair warning to criminal

defendants.   See United States v. Lanier, 520 U.S. 259, 266 (1997) (internal

quotation marks omitted). We held in United States v. Inclema, 363 F.3d 1177,

1182 (11th Cir. 2004), that the rule of lenity applies to the mandatory Sentencing


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Guidelines, and since then some members of our Court have expressed doubt as to

whether that rule applies to the advisory Guidelines. See United States v. Wright,

607 F.3d 708, 719 (11th Cir. 2010) (William Pryor, J., joined by Fay, J.,

concurring). The key distinction recognized by Judges Pryor and Fay in their

Wright concurrence was that the mandatory Guidelines, unlike the advisory

Guidelines, statutorily required district courts to impose a sentence within the

applicable Guidelines range. See id.

      3.     The Griffin panel believed that the mandatory Guidelines “cannot be

unconstitutionally vague because they do not establish the illegality of any conduct

and are designed to assist and limit the discretion of the sentencing judge.” Griffin,

2016 WL 3002293, at *4 (citing Matchett, 802 F.3d at 1195). It is true that the

mandatory Guidelines did not criminalize conduct, but that is of no moment.

      The Griffin panel’s rationale is completely at odds with Supreme Court

precedent, which has long held that vagueness “principles apply not only to

statutes defining elements of crimes, but also to statutes fixing sentences.”

Johnson, 135 S. Ct. at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123

(1979)). The ACCA itself, which sets a 15-year mandatory minimum prison term

for certain defendants, does not establish the illegality of any conduct, but instead

fixes certain sentences. Yet the Supreme Court held that the ACCA’s residual

clause was void for vagueness.       See Johnson, 135 S. Ct. at 2557.        And, as


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discussed above, the mandatory Guidelines operated to fix sentences in almost

precisely the same way as statutes setting minimum mandatory sentences. See

Booker, 543 U.S. at 233 (explaining that before 2005 the Guidelines were

“mandatory and impose[d] binding requirements on all sentencing judges”).

      The text of the ACCA’s residual clause is identical in all respects to the

residual clause of the career offender guideline.       Not surprisingly, we have

interpreted the two clauses using “[p]recisely the same analytical framework.”

United States v. Oliver, 20 F.3d 415, 418 (11th Cir. 1994). See also Turner v.

Warden Coleman FCI, 709 F.3d 1328, 1335 n.4 (11th Cir. 2012) (“The definition

of ‘violent felony’ under the ACCA is virtually identical to the definition of ‘crime

of violence’ for purposes of the career offender enhancement of § 4B1.1 of the

United States Sentencing Guidelines (USSG), so that decisions about one apply to

the other.”) (internal citation omitted). And in order to illustrate the “trouble”

circuit courts had “making sense of the residual clause” of the ACCA, the Supreme

Court in Johnson—in addition to citing decisions construing the ACCA’s residual

clause—pointed to cases that inconsistently construed the residual clause of the

career offender guideline. See Johnson, 135 S. Ct. at 2560 (citing United States v.

Williams, 559 F.3d 1143 (10th Cir. 2009) (a case construing the residual clause of

the career offender guideline), and United States v. Carthorne, 726 F.3d 503 (4th

Cir. 2013) (same)). Booker tells us the undeniable—that the residual clause of the


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mandatory career offender guideline had the same effect as the ACCA’s identical

residual clause. It necessarily follows, then, that Johnson applies with equal force

to the residual clause of the mandatory career offender guideline.

      4.     The Griffin panel, citing Matchett, held that because a defendant has

no constitutional right to be sentenced under the Guidelines, the mandatory

Guidelines cannot be void for vagueness. See Griffin, 2016 WL 3002293, at *4.

This reliance on Matchett was again misplaced.

      Matchett had cited an Eighth Circuit decision, United States v. Wivell, 893

F.2d 156 (8th Cir. 1990), for a similar proposition. See Matchett, 802 F.3d at

1195. But the Eighth Circuit itself has since said that “[t]he reasoning in Wivell

that the guidelines cannot be unconstitutionally vague because they do not

proscribe conduct is doubtful after Johnson.” United States v. Taylor, 803 F.3d

931, 933 (8th Cir. 2015). If the Eighth Circuit has doubts about the continuing

validity of one of its own decisions, so should we.

      In any event, the Supreme Court rejected the syllogism relied upon by

Griffin six decades ago. Even if there exists no independent constitutional right to

be sentenced under the Guidelines, once the Guidelines were promulgated and

made mandatory by Congress, then a defendant’s due process rights attached. See

Griffin v. Illinois, 351 U.S. 12, 18 (1956) (“It is true that a State is not required by

the Federal Constitution to provide . . . a right to appellate review at all. . . [But


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once it does,] at all stages of the proceedings the Due Process and Equal Protection

Clauses protect persons like petitioners from invidious discriminations.”). Griffin,

unfortunately, did not recognize this constitutional reality.

      5.     The Griffin panel, without a single case citation or other authority in

support, ruled alternatively that even if Johnson applied to the residual clause of

the mandatory career offender guideline, “that does not mean that the ruling in

Welch makes Johnson retroactive for purposes of a second or successive § 2255

motion premised on the applicability of Johnson to a guidelines challenge[.]”

Griffin, 2016 WL 3002293, at *5. The premise which Griffin assumed—that a

substantive rule of constitutional law expressly made retroactive by the Supreme

Court can later be made only partially retroactive by a circuit court—is wrong. For

purposes of collateral review in criminal cases, constitutional retroactivity is an all-

or-nothing proposition. See Teague v. Lane, 489 U.S. 288, 316 (1989) (plurality

opinion) (“We therefore hold that, implicit in the retroactivity approach we adopt

today, is the principle that habeas corpus cannot be used as a vehicle to create new

constitutional rules of criminal procedure unless those rules would be applied

retroactively to all defendants on collateral review through one of the two

exceptions we have articulated.”); Butler v. McKellar, 494 U.S. 407, 412–13

(1990) (applying Teague framework).

      A new substantive rule of constitutional law is either retroactive on collateral


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review or it is not. Indeed, Justice Harlan, whose views on retroactivity the

Supreme Court adopted in Teague and its progeny, criticized the notion that courts

could make constitutional rules partially retroactive or partially prospective on a

case by case basis. See Mackey v. United States, 401 U.S. 667, 677 (1971)

(Harlan, J., concurring in judgments in part and dissenting in part) (“What emerges

from today’s decisions is that in the realm of constitutional adjudication in the

criminal field the Court is free to act, in effect, like a legislature, making its new

constitutional rules wholly or partially retroactive or only prospective as it deems

wise. I completely disagree with this point of view.”). And that criticism was one

of the reasons that led to the Teague retroactivity framework. See Teague, 489

U.S. at 310.

      6.       The Griffin panel also concluded that Johnson cannot be retroactive as

applied to the mandatory Guidelines because its vagueness rule is procedural rather

than substantive as applied to the mandatory Guidelines. That too is mistaken.

      First, even if we put Booker aside, there is no logical basis for treating the

residual clause of the mandatory career offender guideline differently from the

residual clause of the ACCA.         Griffin sought to distinguish the mandatory

Guidelines from the ACCA by asserting that Johnson “would not alter the statutory

boundaries for sentencing set by Congress for the crime,” and by emphasizing that

the Guidelines merely “produce changes in how the sentencing procedural process


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is to be conducted.”     Griffin, 2016 WL 3002293, at *5. But the mandatory

Guidelines definitively did alter the substantive boundaries for sentencing,

requiring in effect statutory minimum and maximum penalties for most cases. See

Wright, 607 F.3d at 718–19 (William Pryor, J., joined by Fay, J., concurring)

(“Because Congress required sentencing courts to apply the Sentencing Guidelines

and impose a sentence within the applicable guidelines range, it was reasonable to

view the Guidelines as effectively setting minimum and maximum penalties that

varied based on the circumstances of the offense and the characteristics of the

offender.”).    Griffin erred in concluding that the mandatory guidelines were

procedural and not substantive, for retroactivity purposes.

      Second, in Montgomery v. Louisiana, 136 S. Ct. 718, 733–34 (2016)—

which held that Miller v. Alabama, 132 S. Ct. 2455 (2012) established a new

substantive constitutional rule that was retroactive on collateral review—the

Supreme Court acknowledged that under Miller some juvenile offenders convicted

of murder could still receive a sentence of life without parole upon resentencing.

This fact did not, however, make the Miller rule procedural or otherwise take it

outside the realm of retroactively-applicable substantive rules: “Louisiana contends

that because Miller requires [a] process, it must have set forth a procedural rule.

This argument, however, conflates a procedural requirement necessary to

implement a substantive guarantee with a rule that ‘regulates only the manner of


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determining the defendant’s culpability.’” Montgomery, 136 S. Ct. at 734–35

(quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)).            Put differently,

contrary to the Griffin panel’s conclusion, the fact that the residual clause of the

mandatory career offender guideline may in some ways implicate the process by

which a district court imposes a sentence does not negate the fact that it also “fixes

sentences,” just as the residual clause of the ACCA does. Vagueness principles

therefore apply to both. See Johnson, 135 S. Ct. at 2557.

      7.     In closing, we note that several of our sister circuits have concluded

that Johnson applies to the residual clause of the career offender guideline. See

United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015); United States v.

Pawlak, __ F.3d __, 2016 WL 2802723, at *3–4 (6th Cir. May 13, 2016); United

States v. Townsend, No. 14-3652, 2015 WL 9311394, at *4 (3rd Cir. Dec. 23,

2015); United States v. Welch, No. 12-4402-CR L, 2016 WL 536656, at *4 (2d Cir.

Feb. 11, 2016). Other circuits have either questioned whether the residual clause

of the career offender guideline remains constitutional after Johnson or have acted

on the assumption or concession that Johnson applies. See Ramirez v. United

States, 799 F.3d 845, 856 (7th Cir. 2015) (acting on the assumption that the

Supreme Court’s reasoning in Johnson applies to the residual clause of the career

offender guideline); United States v. Soto-Rivera, 811 F.3d 53, 59 (1st Cir. 2016)

(conducting a career offender analysis without relying on the residual clause


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because the government had conceded that Johnson applied to the Guidelines).

      The Fifth and Eighth Circuits have recently denied applications for leave to

file second or successive motions to vacate in cases where the claim was that

Johnson affected the residual clause of the advisory career offender guideline. See

In re Arnick, __ F.3d __, 2016 WL 3383487, at *1 (5th Cir. June 17, 2016);

Donnell v. United States, __ F.3d __, 2016 WL 3383831, at *3 (8th Cir. June 20,

2016). But as far as we can tell no other circuit has held that the residual clause of

the mandatory career offender guideline is categorically immune from a Johnson

challenge.

      With these thoughts, we concur in the denial of Mr. Sapp’s application.




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