                Case: 18-10523    Date Filed: 04/29/2019   Page: 1 of 64


                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT


                                     No. 18-10523


                         D.C. Docket No. 5:16-cv-00258-CAR



STONEY LESTER,

                                                    Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                    Respondent - Appellee.



                     Appeal from the United States District Court
                         for the Middle District of Georgia




Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM
PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,
BRANCH, and GRANT, Circuit Judges.

BY THE COURT:

         A petition for rehearing having been filed and a member of this Court in

active service having requested a poll on whether this case should be reheard by

the Court sitting en banc, and a majority of the judges in active service on this
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Court having voted against granting a rehearing en banc, it is ORDERED that this

case will not be reheard en banc.




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WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

      A majority of the Court has voted not to rehear this appeal en banc to

reconsider whether a subset of federal prisoners classified as career offenders

under the United States Sentencing Guidelines can seek resentencing on collateral

review based on the void-for-vagueness doctrine explicated in Johnson v. United

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

Career Criminal Act. As background, we held in United States v. Matchett, 802

F.3d 1185 (11th Cir. 2015), and the Supreme Court later confirmed in Beckles v.

United States, 137 S. Ct. 886 (2017), that prisoners who were sentenced as career

offenders after the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), cannot benefit from Johnson because—at least after Booker—the void-

for-vagueness doctrine does not apply to the Sentencing Guidelines. But neither

Matchett nor Beckles resolved whether those sentenced as career offenders before

Booker can collaterally attack their sentences.

      Our published order In re Griffin, 823 F.3d 1350 (11th Cir. 2016), answered

that question in the negative for two independent reasons. First, Griffin applied the

reasoning of Matchett to hold that the Guidelines are not susceptible to void-for-

vagueness challenges no matter whether a prisoner was sentenced before or after

Booker. See id. at 1354–55. Second, although the Supreme Court has held that the

new legal rule of Johnson applies retroactively to cases on collateral review


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because it is “substantive,” see Welch v. United States, 136 S. Ct. 1257 (2016),

Griffin held that an analogous new rule applying the void-for-vagueness doctrine to

pre-Booker career-offender sentences under the Guidelines would be not be

substantive and, as a result, could not be applied retroactively. See 823 F.3d at

1355–56.

      Griffin and Matchett speak for themselves as to the first holding, but I write

in response to Judge Martin’s statement respecting the denial of rehearing en banc

to explain that Griffin’s second holding must be correct. In brief, Johnson was a

substantive decision that entitled prisoners sentenced under the residual clause of

the Armed Career Criminal Act to relief because it made clear that the law had

never authorized their convictions and sentences. By contrast, a new rule extending

Johnson to set aside pre-Booker career-offender sentences—all of which fall

within the substantive statutory ranges prescribed by Congress—would require

only the procedural formality of a resentencing in which the district court would

have the power to impose exactly the same sentence as before. Such a rule, as we

concluded in Griffin, would not be substantive. See id. at 1355–56. To my mind,

this nutshell summary of Griffin’s second holding says all that needs to be said.

But, because some of my colleagues see the matter differently, this statement

explains at greater length why a new rule extending Johnson’s void-for-vagueness




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holding to invalidate pre-Booker career-offender sentences would not be

substantive.

      I divide my discussion in three parts. First, I explain that the rationale

underlying the retroactivity of substantive rules is that courts lack the authority to

enter a judgment of conviction or impose a sentence the substance of which the

law does not authorize, and I explain that the new rule that Judge Martin’s

statement advocates would not be substantive in this sense because the sentences it

would invalidate were imposed within the statutory ranges established by

Congress. Second, I explain that Judge Martin’s counterargument cannot be

squared with Booker. Third, I respond briefly to Judge Rosenbaum’s statement.

                     A. The Retroactivity of Substantive Rules.

      In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court “adopt[ed] [the]

approach to retroactivity for cases on collateral review” that the second Justice

Harlan had developed in two influential opinions. Id. at 292; Mackey v. United

States, 401 U.S. 667, 675–702 (1971) (Harlan, J., concurring in the judgment);

Desist v. United States, 394 U.S. 244, 256–69 (1969) (Harlan, J., dissenting).

Under this familiar framework, “new constitutional rules of criminal procedure

will not be applicable to those cases which have become final before the new rules

are announced.” Teague, 489 U.S. at 310 (O’Connor, J., plurality opinion).

Although the Court has maintained that there exists an exception for “a small set of


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‘watershed rules of criminal procedure implicating the fundamental fairness and

accuracy of the criminal proceeding,’” it has also stressed that this exception is

“extremely narrow,” and it has never held that any rule falls within the exception.

Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (some internal quotation marks

omitted) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).

      In contrast to new procedural rules, “[n]ew substantive rules generally apply

retroactively.” Id. at 351. This category “includes decisions that narrow the scope

of a criminal statute by interpreting its terms, as well as constitutional

determinations that place particular conduct or persons covered by the statute

beyond the State’s power to punish.” Id. at 351–52 (citation omitted). It also

includes “rules prohibiting a certain category of punishment for a class of

defendants because of their status or offense.” Penry v. Lynaugh, 492 U.S. 302,

330 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).

      Although it is common for courts to “refer[] to rules of this . . . type as

falling under an exception to Teague’s bar on retroactive application of procedural

rules,” “they are more accurately characterized as substantive rules not subject to

the bar.” Schriro, 542 U.S. at 352 n.4. After all, “Teague by its terms applies only

to procedural rules.” Bousley v. United States, 523 U.S. 614, 620 (1998). To be

sure, there is no practical difference between a rule that falls within “an exception

to Teague’s bar” and a rule “not subject to the bar.” Schriro, 542 U.S. at 352 n.4.


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But the doctrinal basis of the retroactivity of substantive rules is independent of

Teague and indeed long predates it.

      More than a century before Teague, the Supreme Court held that prisoners

could use the writ of habeas corpus to challenge the substantive validity of their

convictions and sentences. Traditionally, of course, the writ was unavailable to

challenge mere error by the sentencing court. The habeas jurisdiction of the federal

courts was subject to “limitations . . . arising from the nature and objects of the writ

itself, as defined by the common law.” Ex parte Siebold, 100 U.S. 371, 375 (1879).

And “the general rule [was] that a conviction and sentence by a court of competent

jurisdiction [was] lawful cause of imprisonment,” from which “no relief [could] be

given by habeas corpus.” Id. “The only ground” for relief “to a prisoner under

conviction and sentence of another court [was] the want of jurisdiction in such

court over the person or the cause, or some other matter rendering its proceedings

void.” Id.

      In Siebold, the best known of a number of late-nineteenth-century decisions

with similar rationales, the Court held that a prisoner’s argument that his statute of

conviction was unconstitutional did not exceed the limited scope of the writ. The

Court reasoned that an unconstitutional statute “affects the foundations of the

whole proceedings.” Id. at 376. After all, “[a]n unconstitutional law is void, and is

as no law.” Id. So, the Court deduced, “[a] conviction under it is not merely


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erroneous, but is illegal and void.” Id. And because the trial court’s “authority to

indict and try the petitioners arose solely upon the[] laws” they challenged, “if the

laws [were] unconstitutional,” it followed that “the [trial court] acquired no

jurisdiction of the causes.” Id. at 377. In other decisions, the Court employed the

same jurisdictional logic to hold that habeas corpus was available to correct a

sentence imposed without legal authority. See, e.g., In re Bonner, 151 U.S. 242,

255 (1894); In re Mills, 135 U.S. 263, 270 (1890); Ex parte Lange, 85 U.S. 163,

176 (1873). The Court treated each of these cases “not [as] a case of mere error,

but [as] one in which the court below transcended its powers”—that is, exceeded

its jurisdiction. Mills, 135 U.S. at 270.

      To be sure, the Court’s reasoning in Siebold and in related decisions has had

its doubters. Some jurists have argued that these decisions expanded the traditional

concept of jurisdiction, see, e.g., Wright v. West, 505 U.S. 277, 285 (1992)

(opinion of Thomas, J.); Fay v. Noia, 372 U.S. 391, 450–51, 454–55 (1963)

(Harlan, J., dissenting), maybe even to the point of unintelligibility, see Paul M.

Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,

76 Harv. L. Rev. 441, 470–71 & n.66 (1963). And Supreme Court justices have

disagreed about how to interpret Siebold and about how far its logic extends.

Compare Montgomery v. Louisiana, 136 S. Ct. 718, 730–32 (2016), with id. at

740–41 (Scalia, J., dissenting), and id. at 748 (Thomas, J., dissenting).


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       But whatever doubt there may be about the reasoning in Siebold and similar

decisions, there should be no doubt that, as a historical matter, it supplied the

rationale for what we now know as the substantive “exception.” When Justice

Harlan explained that courts should not bar the retroactive application of new rules

“that place . . . certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe,” he added—with specific

reference to Siebold and kindred decisions—that “the writ has historically been

available for attacking convictions on such grounds.” Mackey, 401 U.S. at 692–93

& n.8 (Harlan, J., concurring in the judgment); see also Desist, 394 U.S. at 261 n.2

(Harlan, J., dissenting) (discussing Siebold’s jurisdictional rationale); Fay, 372

U.S. at 454–55 (Harlan, J., dissenting) (same). As the Court started to embrace

Justice Harlan’s retroactivity framework in decisions leading up to Teague, it too

connected retroactivity with the sentencing court’s lack of jurisdiction. See United

States v. Johnson, 457 U.S. 537, 550 (1982) (“recogniz[ing] [that] full retroactivity

[is] a necessary adjunct to a ruling that a trial court lacked authority to convict or

punish a criminal defendant in the first place,” making its “judgments or sentences

. . . void ab initio”); see also Griffith v. Kentucky, 479 U.S. 314, 324 (1987)

(paraphrasing Johnson as having explained that retroactivity attaches “when the

new ruling was that a trial court lacked authority to convict a criminal defendant in

the first place”).


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      Nor can there be any doubt that the substantive exception continues to rest

on this jurisdictional rationale. In Montgomery v. Louisiana, the Court explained

that “[b]y holding that new substantive rules are . . . retroactive, Teague continued

a long tradition.” 136 S. Ct. at 730. The Montgomery Court illustrated that

“tradition” with a detailed discussion of Siebold, which, it explained, had

“addressed why substantive rules must have retroactive effect.” Id. The Court

explained that “the same logic”—that is, Siebold’s jurisdictional rationale—

“governs a challenge to a punishment” that the states lack “authority to impose.”

Id. at 731. Montgomery reaffirmed Siebold’s rule that “[a] conviction or sentence

imposed in violation of a substantive rule is not just erroneous but contrary to law

and, as a result, void.” Id. And, the Court reasoned, “[i]t follows . . . that a court

has no authority to leave in place a conviction or sentence that violates a

substantive rule, regardless of [when] the conviction or sentence became final.”

Id. The Court’s explanation in Welch of why Johnson is substantive—that because

the residual clause of the Armed Career Criminal Act “is invalid,” it cannot

“mandate or authorize any sentence,” 136 S. Ct. at 1265—also would have been at

home in any of the decisions in the Siebold family. Cf., e.g., Mills, 135 U.S. at 270

(“The court below was without jurisdiction to pass any such sentences . . . .”).

      The doctrinal pedigree and rationale of the substantive exception logically

dictate its scope. The exception is based on the idea that a court has no authority to


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enter a judgment of conviction under a void statute or to impose a sentence not

authorized by law. Necessarily, then, when a prisoner’s conviction is supported by

a valid statute and his sentence is authorized by law, the substantive exception

cannot apply. Cf. Lockhart v. Fretwell, 506 U.S. 364, 373 (1993) (“Cessante

ratione legis, cessat et ipsa lex.”).

       From this understanding of the substantive exception, it follows that the

exception does not apply to pre-Booker sentences under the Guidelines. Every

sentence that has ever been imposed under the Guidelines—either before or after

Booker—falls within the statutory range of punishment prescribed by Congress for

the defendant’s offense. See Mistretta v. United States, 488 U.S. 361, 374–75

(1989) (explaining that when Congress empowered the Sentencing Commission to

promulgate the Guidelines, it “instructed the Commission that these sentencing

ranges must be consistent with pertinent provisions of Title 18 of the United States

Code and could not include sentences in excess of the statutory maxima”). And

every court that has ever imposed a sentence under the Guidelines had the

authority to impose a sentence within the statutory range.

       Take Stoney Lester as an example. Lester pleaded guilty in 2003 to

distributing more than five grams of crack cocaine, an offense with a statutory

range of five to 40 years of imprisonment. See 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii).

The sentence he received under the Guidelines—21 years and 10 months—was


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squarely within the statutory range and, as such, within the authority granted to the

district court by Congress. So even if the career-offender provision that was used

to calculate Lester’s sentence under the Guidelines were somehow

unconstitutionally vague, the substantive exception would not extend to Lester’s

sentence.

      To look at the same idea from a different angle, consider the result if Lester

or a similarly situated prisoner prevailed in a vagueness attack on the career-

offender sentencing Guideline. A successful vagueness challenge would establish

only that the district court improperly relied on an unacceptably unclear directive

in arriving at the prisoner’s sentence. But it would not in the slightest establish that

the district court lacked the authority to impose the substantive sentence at which it

arrived. On the contrary, as Griffin observed, the district court could impose

exactly the same sentence on remand after the appellate court corrected its error.

823 F.3d at 1355. In this respect, erroneous reliance on an unconstitutionally vague

sentencing Guideline, if such a thing were to exist, resembles “procedural”

sentencing errors—errors like “failing to calculate (or improperly calculating) the

Guideline range, treating the Guidelines as mandatory, . . . or failing to adequately

explain the chosen sentence,” Gall v. United States, 552 U.S. 38, 51 (2007)—for

which the remedy is a remand with corrective instructions but with no guarantee of

a different outcome. And, as we explained in Griffin and as the Solicitor General


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argued in Beckles, this fact means that a new rule extending Johnson to the career-

offender sentencing Guideline would also be “procedural,” not substantive, for

purposes of retroactivity. See Griffin, 823 F.3d at 1355–56; Brief for the United

States at 11–33, Beckles v. United States, 137 S. Ct. 886 (No. 15-8544).

                   B. The “Mandatory Guidelines” and Booker.

      Judge Martin’s statement responds that this reasoning “fundamentally

misunderstands how the mandatory Guidelines worked” because it ignores that,

before Booker, “the shortest sentence the District Court was legally allowed to give

[Lester]” “[o]nce categorized as a career-offender” was greater than “the longest

sentence he could have received if not deemed a career offender.” Statement of

Martin, J., at 48. The argument is not expressly framed in terms of whether the

district court had the substantive authority to impose Lester’s sentence, but to

translate it into those terms is easy enough. In this view, it does not matter to

retroactivity that the district court could sentence a pre-Booker career offender like

Lester to the same term of imprisonment today. See id. at 49. Instead, the critical

point is that—without the career-offender provision—it lacked the substantive

authority to impose the sentence then, in the pre-Booker era when the Guidelines

dictated what sentences were “legally allowed.” Id. at 48; see also id. at 38–40.

      This response contains an important internal tension. In Judge Martin’s

account, the putative unconstitutionality of the career-offender Guideline, which


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her statement contends was established by the Supreme Court’s 2015 decision in

Johnson, must “relate back” to the time of Lester’s sentencing in 2003; otherwise,

there would be no ground to argue that Lester’s sentence was substantively invalid.

But the advisory nature of the Guidelines, which was established by the Supreme

Court’s 2005 decision in Booker, must not relate back to Lester’s sentencing. If

Booker’s construction of the Guidelines’ legal status was the correct view of the

law at the time of Lester’s sentencing, then the “mandatory Guidelines” did not

exist in a legal sense, did not limit the district court’s discretion to choose an

appropriate sentence within the statutory range, and did not render his actual

sentence substantively invalid.

      The premise that the Sentencing Guidelines were in the strictest sense

legally binding before Booker pervades Judge Martin’s statement. As her statement

puts it, “[u]nder the mandatory Guidelines, federal district courts were bound by

law to impose sentences within the guideline range.” Id. at 38. Her statement

explains, “the mandatory Guidelines were laws that increased punishment”—laws

that, “[i]n effect, . . . set minimum and maximum sentences.” Id. at 40, 48. And it

insists that the Guidelines, “[b]y law,” dictated the sentences that the district court

“was legally allowed to give” Lester. Id. at 48. In this view, “the sentencing judge

had no legal authority to sentence [Lester] to other than a sentence mandated by

the Guidelines then in effect.” Id. at 38–39.


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      This manner of speaking, of course, is by no means peculiar to Judge

Martin. Virtually all of us are in the habit of distinguishing, in one way or another,

between the “mandatory Guidelines” that operated before Booker and the

“advisory Guidelines” that have operated since. See, e.g., Matchett, 802 F.3d at

1196 (referring to “when the guidelines were still mandatory”); United States v.

Martin, 455 F.3d 1227, 1236 (11th Cir. 2006) (“As we all now know, Booker made

the guidelines advisory.”).

      Purely as a description of judicial doctrine and practice, this language makes

sense. Cf. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457,

457–61 (1897). Before Booker, district courts believed they were bound to apply

the Guidelines as mandatory, and the courts of appeals would reverse district

courts that treated them as merely advisory. After Booker, district courts

recognized that they were bound not to apply the Guidelines as mandatory, and the

courts of appeals will now reverse district courts that fail to treat them as advisory.

This change in court behavior makes it natural to say that Booker “made the

Guidelines advisory.”

      But even if our idioms adequately describe judicial practice, they may be

erroneous or inadequate in other respects. And we must be careful not to let the

imprecision of our language control our reasoning. “[W]ords are wise men’s




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counters, they do but reckon by them; but they are the money of fools.” Thomas

Hobbes, Leviathan 19 (Edwin Curley ed., Hackett 1994 [1651]).

      In particular, we should be mindful of the difference between a change in

judicial doctrine and a change in law. This distinction, although sometimes easy to

overlook, is fundamental. Without distinguishing between judges’ understanding

of the law and the law itself, we could not meaningfully say, for example, that a

change in judicial doctrine “proved Mr. Lester’s objection right and Eleventh

Circuit case law wrong,” Statement of Martin, J., at 33, nor could the Supreme

Court meaningfully describe a past decision of its own as “wrong the day it was

decided,” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 863 (1992)

(joint opinion of O’Connor, Kennedy, and Souter, JJ.); see also Stephen E. Sachs,

Finding Law, 107 Calif. L. Rev. (forthcoming Apr. 2019) (manuscript at 43)

(available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064443 (last

visited Apr. 28, 2019)). And we would be hard-pressed to explain why Johnson

required the retroactive invalidation of final convictions and sentences based on the

residual clause of the Armed Career Criminal Act, see Welch, 136 S. Ct. at 1265,

when an act of Congress that merely repealed the clause would not do so. The

answer, of course, is that Johnson did not strictly speaking change the law; “rather,

it held and therefore established that the prior decisions [treating the residual

clause as valid] were incorrect.” Rivers v. Roadway Express, Inc., 511 U.S. 298,


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312 (1994); see also Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993). In

the light of Johnson, the residual clause was, as a matter of law, always invalid.

      So it can be misleading to say, as we often do, that “the Sentencing

Guidelines were mandatory,” Statement of Martin, J., at 31, and that the Supreme

Court “made” them advisory in Booker. These idioms suggest that the Guidelines

were once really mandatory as a matter of law and that they became advisory as a

matter of law only after—and only because of—Booker. But that cannot be right. If

Booker’s effect was to change the essential legal status of the Guidelines from

mandatory to advisory, then it must have been one of two things: either a

legislative amendment that removed the textual command that courts apply the

Guidelines as mandatory, see 18 U.S.C. § 3553(b)(1), from the Sentencing Reform

Act and replaced it with a provision that the Guidelines be treated as advisory or,

alternatively, a constitutional amendment that newly prohibited the mandatory

application of the Guidelines. But Booker—a judicial decision—was neither of

those things.

      The Supreme Court wields judicial power, not legislative power. See U.S.

Const. art. I, § 1; id. art. III, § 1. It has no power to amend the text or meaning of

any statute; it has the authority only “to say what a statute means,” which means

“what the statute meant before as well as after the decision of the case giving rise

to that construction,” in the course of deciding a case or controversy. Rivers, 511


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U.S. at 312–13. Nor does the Supreme Court have the authority to amend the

Constitution. See, e.g., Bell v. Maryland, 378 U.S. 226, 288 (1964) (In

constitutional cases, the Court’s “duty is to construe, not to rewrite or amend, the

Constitution.” (internal quotation marks omitted)); South Carolina v. United

States, 199 U.S. 437, 448 (1905) (“The Constitution is a written instrument. As

such its meaning does not alter. That which it meant when adopted, it means

now.”). So, instead of a legislative act or constitutional amendment that changed

the law, Booker was a judicial decision that held that the statutory requirement that

courts apply the Guidelines as mandatory is without legal effect.

      Booker established that the Guidelines are not mandatory through two

holdings. First, the Court held that the statutory requirement of mandatory

application of the Guidelines would violate the Sixth Amendment as applied

whenever it resulted in a sentence greater than the maximum sentence that could be

imposed based only on the facts reflected in a jury’s guilty verdict or admitted by

the defendant. See Booker, 543 U.S. at 233–37 (Stevens, J., opinion of the Court).

Second, as a matter of severability, the Court held that the Guidelines could not be

applied as mandatory in any cases, even when their mandatory application would

not violate the Sixth Amendment, because the resulting system would be

structurally unsound and contrary to the intent of Congress. See id. at 249–59, 265–

67 (Breyer, J., opinion of the Court).


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      Although Booker radically changed judicial doctrine with respect to the

Guidelines, neither of its holdings was the equivalent of a legislative or

constitutional amendment to the substance of the law. As far as the constitutional

holding is concerned, this point should be obvious: “Constitutional invalidity of

federal statutes . . . is produced by the Constitution itself, not by the order of a

court.” John Harrison, Severability, Remedies, and Constitutional Adjudication, 83

Geo. Wash. L. Rev. 56, 87 (2014); see also Marbury v. Madison, 5 U.S. 137, 177–

78 (1803). The Sixth Amendment did not mean one thing the day before Booker

and another thing the day Booker was decided. The Court in Booker did not make

the statutory provision requiring the mandatory application of the Guidelines

unconstitutional. Instead, the Court recognized that the provision was

unconstitutional by determining the meaning of the Sixth Amendment—that is, by

interpreting it—and that its meaning was incompatible with that of the statutory

provision in certain circumstances. In those applications, the statutory provision

was always unconstitutional; it was always “void, and . . . as no law.” Siebold, 100

U.S. at 376; accord Marbury, 5 U.S. at 177.

      Booker’s severability conclusion is no different. As the Supreme Court and

commentators have long acknowledged, severability is fundamentally “an exercise

in statutory interpretation.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.

1461, 1486 (2018) (Thomas, J., concurring); see also, e.g., Dorchy v. Kansas, 264


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U.S. 286, 290 (1924) (Severability is “a question of interpretation and of legislative

intent.”); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46

Stan. L. Rev. 235, 289 (1994) (“Severability presents a question of statutory

interpretation . . . .”). Specifically, issues of severability pose the interpretive

question of how to understand a legal text as a whole in the light of a newly

acknowledged fact—that part of the text cannot be given legal effect. See Murphy,

138 S. Ct. at 1486 (Thomas, J., concurring) (“[T]he severability doctrine has courts

decide how a statute operates once they conclude that part of it cannot be

constitutionally enforced.”); Harrison, supra, 83 Geo. Wash. L. Rev. at 88; see also

Booker, 543 U.S. at 247 (Breyer, J., opinion of the Court) (observing that

“severability questions . . . can arise when a legislatively unforeseen constitutional

problem requires modification of a statutory provision as applied in a significant

number of instances”); id. at 265 (“[W]e have examined the statute in depth to

determine Congress’ likely intent in light of today’s holding.”); Dorchy, 264 U.S.

at 290 (posing the question whether one section of a state statute was “so

interwoven with the [other sections] held invalid that the section cannot stand

alone”). It is because severability issues are interpretive questions that courts

answer them by using the same kinds of tools that are applied to other issues of

statutory construction, see, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 687

(1987) (finding “abundant indication of a clear congressional intent of severability


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both in the language and structure of the Act and in its legislative history”), and

that they produce the same kinds of disagreements about interpretive methods as

do other interpretive problems, see, e.g., Booker, 543 U.S. at 313 (Thomas, J.,

dissenting in part) (“disagree[ing] with [Justice Stevens’s] restatement of

severability principles and reliance on legislative history”).

      The interpretive character of severability holdings—Booker’s included—

also means that they cannot be understood as if they changed the law in the manner

of a legislative amendment. As Justice Scalia once observed, even if it sometimes

right to say that “judges in a real sense ‘make’ law,” we must not forget that “they

make it as judges make it, which is to say as though they were ‘finding’ it—

discerning what the law is, rather than decreeing what it is today changed to, or

what it will tomorrow be.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

549 (1991) (Scalia, J., concurring in the judgment). No less than a decision in any

other interpretive context, a judicial construction of the Sentencing Reform Act in

the light of its conflict with the Sixth Amendment—a conflict that always existed,

even if the Court did not formally acknowledge it until Booker—“is an

authoritative statement of what the statute meant before as well as after the

decision of the case giving rise to that construction.” Rivers, 511 U.S. at 312–13.

Were it otherwise, Booker and other severability decisions would “entail

quintessentially legislative work,” which is exactly what the Supreme Court has


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said they do not entail. Ayotte v. Planned Parenthood of N. New England, 546 U.S.

320, 329 (2006); accord Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292,

2319 (2016).

          So, our usual figures of speech notwithstanding, it follows from the holdings

in Booker that the Guidelines were never really mandatory—not as a matter of law.

To be sure, an act of Congress instructed that the sentencing court “shall impose a

sentence of the kind, and within the range,” defined in the Guidelines, 18 U.S.C.

§ 3553(b)(1), and district courts thought that this mandatory instruction was legally

binding. The courts of appeals thought so too. But, if Booker is right, we were all

wrong. The law—not judges’ understanding of the law, but the actual law—was

otherwise. The Sixth Amendment forbade the mandatory application of the

Guidelines whenever they prescribed a sentence greater than the law allowed based

only on the facts reflected in a guilty verdict or plea. And, as interpreted by Booker

in the light of that constitutional prohibition, the Sentencing Reform Act did not

prescribe the mandatory application of the Guidelines in any other circumstances

either.

          The district court did err when it sentenced Lester, but the error was not

imposing an illegal sentence under a mandatory, but unconstitutionally vague,

sentencing Guideline. Instead, its error—an error that also happened to be shared

by every other district court at the time—was treating the career-offender


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Guideline as mandatory in the first place. To be sure, that was an error of

“constitutional significance,” as Booker confirmed. Statement of Martin, J., at 49.

But it was a procedural constitutional error, not a substantive one. See Varela v.

United States, 400 F.3d 864, 868 (11th Cir. 2005) (holding “that Booker’s

constitutional rule falls squarely under the category of new rules of criminal

procedure that do not apply retroactively”). And, although Judge Martin’s

statement suggests that my acknowledgment of that error should convince me to

“agree to fix the sentences mistakenly imposed as mandatory,” the whole point of

Teague is that merely procedural “mistake[s]” do not warrant the extraordinary

“fix” of collateral relief. Statement of Martin, J., at 39.

      That job is reserved for substantive rules, and, in the light of Booker,

Johnson cannot possibly have established that the district court lacked the

substantive authority to impose Lester’s sentence. If the sentencing court had

known what Booker later clarified to be the correct understanding of the law, it

would not have recognized that, “[b]y law, the longest sentence [Lester] could . . .

receive[] . . . was 151 months.” Id. at 48 (emphasis omitted). Instead, Johnson or

no Johnson, it would have recognized that it was “legally allowed,” id., to impose

any sentence within the statutory range of five to 40 years—just as it could if it

sentenced Lester today.




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      Of course, we do not know what sentence Lester would have received if the

district court had been aware of what Booker later held. But all we need to know is

whether his sentence was within the substantive authority of the district court at the

time it was imposed. And it clearly was. So Griffin was absolutely right to hold

that a new rule extending Johnson to set aside pre-Booker sentences based on the

career-offender Guideline would not be substantive and would not apply

retroactively to cases on collateral review.

                         C. Judge Rosenbaum’s Statement.
      Judge Rosenbaum’s statement responds to my argument in three parts. The

first and second parts fail to engage with my argument. And the third part

propounds a doctrine of judicial lawmaking that contradicts Marbury’s rationale

for judicial review.

      The first part of Judge Rosenbaum’s statement quarrels with my account of

the substantive exception. I am not sure Judge Rosenbaum’s belief that the

exception concerns equally ultra vires action by any branch, not just the judiciary,

can be squared with basic habeas principles or with the precedents—all of which

stress the sentencing “court[’s] lack[] [of] power to exact a penalty that has not

been authorized by any valid criminal statute,” Welch, 136 S. Ct. at 1268; accord

Siebold, 100 U.S. at 377 (“We think [habeas lies], because, if the laws are

unconstitutional and void, the Circuit Court acquired no jurisdiction of the


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causes.” (emphases added)), or the habeas court’s lack of “authority to leave in

place a conviction or sentence that violates a substantive rule,” Montgomery, 136

S. Ct. at 731—but I also doubt that it matters. After all, my argument is that

Lester’s sentencing court did not exceed its powers because the statutory provision

that purported to limit its sentencing discretion was unconstitutional and therefore

void. Far from “gloss[ing] over th[e] constitutionally significant problem” of the

mandatory application of the Guidelines, Statement of Rosenbaum, J., at 55, I

argue that Booker’s holding that their mandatory application was unconstitutional

controls the question we are discussing. And it establishes that the only rule the

district court violated when it sentenced Lester was procedural, not substantive.

      The second part of Judge Rosenbaum’s statement identifies the heart of my

argument, but it offers no meaningful response. I have said that statements like

“Booker made the Guidelines advisory” are ubiquitous but not precisely accurate.

Judge Rosenbaum’s statement responds only by confirming that they are

ubiquitous but makes no effort to refute my point that they are imprecise. See id. at

58–60. I have said that courts used to treat the Guidelines as mandatory but that, as

Booker held, they committed legal error by doing so. Judge Rosenbaum’s

statement responds only by insisting that courts used to treat the Guidelines as

mandatory. See id. at 60. Her statement’s flotilla of quotations from the United

States Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense


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of those statements is false and, second, that courts routinely describe the terms

and intended effects of statutes as if they were valid even as they hold the opposite.

See, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional

and Amateur Sports Protection Act “banned the authorization of sports gambling in

casinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176

(“The authority . . . given to the supreme court . . . appears not to be warranted by

the [C]onstitution . . . .” (emphasis added)). The second part’s only direct response

to my argument—that “the Booker Court did not make the Guidelines advisory

because they were always advisory, since the Sixth Amendment never allowed

them to be mandatory”—is that it “is certainly interesting on a metaphysical level.”

Statement of Rosenbaum, J., at 60. I appreciate the compliment.

      Only the third part of Judge Rosenbaum’s statement is responsive, but

unfortunately it fumbles the basic tenets—one might even say the metaphysics—of

judicial review. Before Booker, it tells us, “18 U.S.C. § 3553(b)(1) was the law of

the land.” Id. at 61. Wrong. As Chief Justice Marshall explained in Marbury, “[t]he

question, whether an act, repugnant to the [C]onstitution, can become the law of

the land” is to be answered resoundingly in the negative. Marbury, 5 U.S. at 176;

see also U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United

States . . . in Pursuance thereof . . . shall be the supreme Law of the Land . . . .”

(emphasis added)); Mackey, 401 U.S. at 678 (Harlan, J., concurring in the


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judgment) (observing that Marbury provides “from that day to this the sole

continuing rationale for the exercise of” judicial review).

      Judge Rosenbaum’s statement continues: “[T]he Court’s change effectively

excised the Guidelines’ mandatory language from the United States Code.”

Statement of Rosenbaum, J., at 62. The word “effectively” bears the whole weight

of this sentence. Section 3553(b)(1)’s mandatory language is still there in the

Code. See 18 U.S.C. § 3553(b)(1); see also generally Jonathan F. Mitchell, The

Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018). The only thing that has

changed is that now, thanks to Booker, we know that it is legally inoperative

because the Sixth Amendment—adopted in 1791—requires and has always

required that result.

      It follows that the correct application of the Guidelines has always been

advisory—even for offenders, like Stoney Lester, convicted before Booker. And it

follows from that that the substantive exception would not apply to a new rule

extending Johnson to set aside Lester’s sentence and others like it. Understanding

the law on this point requires no familiarity with “the laws of physics” or “the

space-time continuum.” Statement of Rosenbaum, J., at 60. It instead requires only

the humility that comes with appreciating the modest role that the federal judiciary

performs in our constitutional system: “to say what the law is,” not what it should

be. Marbury, 5 U.S. at 177.


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MARTIN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR, Circuit

Judges, respecting the denial of rehearing en banc:

      In 2004, Stoney Lester was sentenced in the Middle District of Georgia to

almost 22 years in prison for possessing more than five grams of cocaine. This

long sentence was required by law at the time because the sentencing court had to

treat Mr. Lester as a “career offender” under the then-mandatory United States

Sentencing Guidelines. The Eleventh Circuit’s binding precedent required the

sentencing judge to count Mr. Lester’s past conviction for walkaway escape as a

“crime of violence” under a provision of the career-offender guideline known as

the “residual clause.” U.S.S.G. § 4B1.2(a) (2003). If Mr. Lester had not been

sentenced as a “career offender,” his term of incarceration would have been at least

nine years shorter.

      About eleven years after he was sentenced, the Supreme Court invalidated

the residual clause of the Armed Career Criminal Act. Johnson v. United States,

576 U.S.    , 136 S. Ct. 2551 (2015). Since the residual clause under which he was

sentenced was identical to that stricken by the Supreme Court, Mr. Lester filed a

motion in Federal Court in Georgia under 28 U.S.C. § 2255, seeking to correct his

sentence. At that time, he already had a pending petition under 28 U.S.C. § 2241

in the Eastern District of Virginia, where the Bureau of Prisons assigned him at

some point. His petition in Virginia asked that court to correct his sentence based


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on Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009), which

overruled the Eleventh Circuit precedent that characterized walkaway escape as a

crime of violence. Lester v. Wilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb.

27, 2019). Mr. Lester’s § 2241 petition would have failed in the Eleventh Circuit

because our precedent foreclosed such a claim based on procedural grounds. See

McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1090 (11th

Cir. 2017) (en banc).

      So too with Mr. Lester’s § 2255 petition. Our Court denied him relief based

on our precedent in In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (per curiam),

which held that inmates like Mr. Lester cannot bring Johnson-based challenges to

mandatory Guidelines sentences. Happily for Mr. Lester, things turned out better

for him in the Fourth Circuit. That court said Mr. Lester’s sentence contained a

“fundamental defect.” Specifically, the Fourth Circuit said Mr. Lester’s longer

sentence based on his walkaway escape conviction was fundamentally defective

since the Supreme Court had made plain that this should not count as a crime of

violence. Lester v. Flournoy, 909 F.3d 708, 714 (4th Cir. 2018). While this Court

was debating whether to consider Mr. Lester’s case en banc, the Fourth Circuit

granted him relief.

      I understand that Mr. Lester is a free man today. Dkt. No. 44, Lester v.

Wilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb. 27, 2019). He served 15


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years and seven months in prison. This was more than two-thirds of the sentence

originally imposed on him, and three years longer than he would have served if his

walkaway escape conviction had not counted in the first place.

       I asked the Court withhold the issuance of the mandate in Mr. Lester’s case,

in hopes that we could correct what I see as two errors in In re Griffin. First, I

believe In re Griffin erroneously held that the mandatory Guidelines are not subject

to vagueness challenges. Second, I think In re Griffin was wrong to say that

Johnson does not apply retroactively in mandatory Guidelines cases. This Court

declined to take up either issue. In making that decision, the Court also denied Mr.

Lester all relief.

       I wrote a dissent from the denial of en banc rehearing to express my

disagreement with Griffin. But since Mr. Lester has won his freedom, there is no

longer a need for en banc review of his case. Still, I am mindful that Mr. Lester is

breathing free air solely because of a happenstance administrative decision to move

him to a prison in the Eastern District of Virginia, together with his savviness in

filing a § 2241 petition while he was there. Failing either one of these things, Mr.

Lester would have been required to serve six more years in prison. His case is a

testament to the arbitrariness of contemporary habeas law, where liberty can

depend as much on geography as anything else. It also illustrates how limited is




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relief for the thousands of inmates sentenced within the Eleventh Circuit and

whose sentence Johnson affected.

      Not all inmates will be moved out of this Circuit. Also, Griffin continues to

stand as binding precedent in this Circuit. For these reasons I take this opportunity

to review why I believe the opinion in In re Griffin is mistaken.

                                          I.

      In 2004, Mr. Lester pled guilty to possession with intent to distribute more

than five grams crack cocaine. At that time, the Sentencing Guidelines were

mandatory, see United States v. Booker, 543 U.S. 220, 233–34, 125 S. Ct. 738, 750

(2005), so the calculation of Mr. Lester’s guideline range set his prison sentence.

The District Court calculated Mr. Lester’s guideline range as 262–327 months and,

because it had no statutory basis to depart, see 18 U.S.C. § 3553(b)(1), it imposed a

262-month sentence.

      Mr. Lester’s long sentence resulted from the District Court’s finding that he

was a “career offender” as that term was then defined in the Guidelines. See

U.S.S.G. § 4B1.1 (2003). The career-offender provision required longer sentences

for defendants sentenced for a “crime of violence” or a “controlled substance

offense,” and who in addition have two past convictions that are either a “crime of




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violence” or “controlled substance offense.”1 Id. § 4B1.1(a). Earlier in his life,

Mr. Lester had been convicted in Georgia once for sale of marijuana and once for

walkaway escape. The District Court counted the marijuana conviction as a

“controlled substance offense.” It also counted Mr. Lester’s walkaway escape

conviction as a “crime of violence” under the “residual clause” of the Guidelines.

That “residual clause” defined a crime of violence as an offense punishable by

more than a year in prison that “involves conduct that presents a serious potential

risk of physical injury to another.” Id. § 4B1.2(a). Mr. Lester objected to counting

his walkaway escape conviction as a crime of violence under the residual clause,

but our Circuit precedent foreclosed his objection. See United States v. Gay, 251

F.3d 950, 953–55 (11th Cir. 2001) (per curiam), abrogation recognized by

McCarthan, 851 F.3d at 1080.

       In light of his career-offender status, Mr. Lester was assigned an offense

level of 34 and a criminal history category of VI. This yielded a guideline range of

262 to 327 months. U.S.S.G. chap. 5, pt. A. At the time, the District Court had no

discretion to sentence Mr. Lester outside of this range. If (as we now know should

have been the case) Mr. Lester had not been designated a career-offender, he




       1
         The Guidelines contain a career-offender provision in their current iteration, see
U.S.S.G. § 4B1.1 (2018), but the provision and our interpretation of it have changed since Mr.
Lester was sentenced. My discussion here is about the career-offender provision that was
operative when Mr. Lester was sentenced.
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would have had an offense level of 30 and a criminal history category of III, which

together yield a guideline range of 121–151 months. Id. Because of the residual

clause, Mr. Lester faced at least nine years more in prison than he would have

without it.

      Over the years after his sentence was imposed, developments in the law

proved Mr. Lester’s objection right and Eleventh Circuit case law wrong. In 2009,

the Supreme Court overturned the Eleventh Circuit rule that walkaway escape

counts as a crime of violence. Chambers, 555 U.S. at 130, 129 S. Ct. at 693,

abrogated on other grounds by Johnson, 135 S. Ct. at 2563. If Mr. Lester were

sentenced today, his conviction for walkaway escape could not count as a “crime

of violence,” and as a result, he would not be sentenced as a career offender. See

McCarthan, 851 F.3d at 1080. If he had been sentenced under Eleventh Circuit

law as it exists today, Mr. Lester would have been a free man in 2016 at the latest.

      Then in 2015, the Supreme Court changed the law in a second way that

made clear Mr. Lester’s sentence resulted from not only on a mistaken

interpretation of the Guidelines, but on an unconstitutionally vague Guideline

provision as well. Johnson, 135 S. Ct. at 2563. In Johnson, the Supreme Court

struck down a provision of the Armed Career Criminal Act (ACCA) that is

identical to the career-offender residual clause in the Guidelines. Id. ACCA

requires longer sentences for defendants with certain types of earlier convictions


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who are convicted of possessing a firearm as a convicted felon in violation of 18

U.S.C. § 922(g). The maximum sentence for possessing a firearm as a convicted

felon is ordinarily ten years. 18 U.S.C. § 924(a)(2). But ACCA mandates a

sentence of no less than fifteen years for a person who has three earlier convictions

for either a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e).

ACCA defines “violent felony” with the same words that the career-offender

guideline used when Mr. Lester was sentenced. Specifically, ACCA defines a

“violent felony” as an offense punishable by more than a 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 burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” Compare id. § 924(e)(2)(B), with U.S.S.G. § 4B1.2

(defining “crime of violence” as the term is used in U.S.S.G. § 4B1.1). After years

of litigation over how to interpret the residual clause, see Johnson, 135 S. Ct. at

2558–60, in Johnson, the Supreme Court struck it down as unconstitutionally

vague, id. at 2563.

      The constitutional problem with the residual clause is apparent in the

application of what has become known as the categorical approach. When

deciding whether a person’s earlier criminal conviction counts as a violent felony

under the ACCA residual clause, the Supreme Court instructed us not to look at


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what the defendant actually did. See Johnson, 135 S. Ct. at 2557. For that matter,

this is also true for the residual clause in the Guidelines. See United States v.

Lockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011). Rather than reconstruct the

conduct that resulted in the earlier conviction, courts were instructed to “picture the

kind of conduct that the crime involves in the ordinary case” and “judge whether

that abstraction presents a serious potential risk of physical injury.” Id. (quotation

marks omitted). But the residual clause gave no guidance “about how to estimate

the risk posed by a crime,” because it gave no way for us to decide “what kind of

conduct the ‘ordinary case’ of a crime involves.” Id. In a string of cases over the

years, the Supreme Court used different “ad hoc test[s] to guide [the] inquiry”

before abandoning the endeavor in 2015. Id. at 2558–59. Among other things, the

Supreme Court was concerned that the residual clause left “uncertainty about how

much risk it takes for a crime to qualify as a violent felony.” Id. at 2558.

Ultimately the Supreme Court held that these features of the residual clause

“produce[d] more unpredictability and arbitrariness than the Due Process Clause

tolerates.” Id.

      Johnson “called into question the sentences of thousands of federal prisoners

sentenced under ACCA and other, similarly worded statutes,” including the career-

offender guideline. Ovalles v. United States, 905 F.3d 1231, 1263 (11th Cir. 2018)

(en banc) (Martin, J., dissenting). Johnson told us it is unconstitutional to require a


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longer sentence based on a judge imagining whether a defendant’s past convictions

involve a “serious potential risk of physical injury.” Compare 18 U.S.C. § 924(e),

with U.S.S.G. § 4B1.2(a). This is precisely how Mr. Lester got his longer

sentence.

      To correct an unlawful sentence, a prisoner may file a motion under 28

U.S.C. § 2255. But the Antiterrorism and Effective Death Penalty Act limits a

prisoner to one such motion unless the prisoner comes to a Court of Appeals and

applies for permission to file a second or successive § 2255 motion. Id. §

2244(b)(3)(A). This Court can, in turn, grant permission only if the prisoner

makes a prima facie case that his second or successive motion will rely on newly

discovered evidence or a new rule of constitutional law made retroactively

applicable on collateral review by the Supreme Court. Id. §§ 2244(b), 2255(h).

Once the Supreme Court told us that Johnson applies retroactively (to those

sentenced before Johnson was decided) in Welch, 136 S. Ct. at 1268, this Circuit

faced a flood of requests to file a second or successive motion, including one from

Mr. Lester. The Court granted him permission to file a second § 2255 motion in

District Court. In re Lester, No. 16-11730, slip op. at 9.

      I think Johnson entitled Mr. Lester to relief. Yet in the Eleventh Circuit he

gets none. Just as Mr. Lester was about to have his sentence reviewed, his efforts

were halted by a decision this Court published a few days after he got permission


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to file his second or successive § 2255 motion. In re Griffin ruled that the

mandatory Guidelines are not subject to vagueness challenges and, alternatively,

that Johnson is not retroactive as applied in this context. 823 F.3d at 1353–56.

Griffin foreclosed Mr. Lester’s claim, so the District Court denied Mr. Lester’s

§ 2255 motion. Mr. Lester appealed, and a panel summarily affirmed, again

relying on Griffin. Lester v. United States, No. 18-10523, slip op. at 3.

       But Griffin was wrong in both its rulings, and it should not have stood in the

way of Mr. Lester having his sentence corrected.2 If it were not for the Fourth

Circuit’s intervention, Mr. Lester would still be in prison. Because Griffin will

continue to bar relief to others like Mr. Lester, I will elaborate on how it erred.

                                                II.

       First, Griffin held that the mandatory Guidelines are not subject to

vagueness challenges. 823 F.3d at 1353–56. But this cannot be accurate. The

mandatory Guidelines are indeed subject to vagueness challenges because they

“ha[d] the force and effect of laws.” Booker, 543 U.S. at 234, 125 S. Ct. at 750.

Like any law, to comply with constitutional due process requirements the

mandatory Guidelines had to “give ordinary people fair notice of the conduct

       2
         Griffin ruled on the merits of this issue of first impression, even though the only
question before the panel was whether the inmate there had made a prima facie case that his
motion would contain a new rule of constitutional law made retroactive by the Supreme Court.
This Court has had a long-running debate about this practice, and some of my colleagues and I
have criticized it on various grounds. See Ovalles, 905 F.3d at 1266–68 (Martin, J., dissenting);
In re Williams, 898 F.3d 1098, 1101–02 (11th Cir. 2018) (Wilson, J., specially concurring).
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[they] punishe[d]” and could not be “so standardless” as to “invite[] arbitrary

enforcement.” Johnson, 135 S. Ct. at 2556.

      Supreme Court precedent amply establishes that the Guidelines were

equivalent to law. The Supreme Court characterized the mandatory Guidelines as

“the equivalent of legislative rules adopted by federal agencies.” Stinson v. United

States, 508 U.S. 36, 45, 113 S. Ct. 1913, 1919 (1993); see also Mistretta v. United

States, 488 U.S. 361, 371–379, 109 S. Ct. 647, 654–59 (upholding the Sentencing

Commission’s mandate to set penalties for crimes as a valid delegation of

Congress’s legislative power). Under the mandatory Guidelines, federal district

judges were bound by law to impose sentences within the guideline range

calculated for any given defendant. See 18 U.S.C. § 3553(b) (1984); Booker, 543

U.S. at 234, 125 S. Ct. at 750 (“[S]ubsection (b) of [§ 3553] directs that the court

‘shall impose a sentence of the kind, and within the range’ established by the

Guidelines, subject to departures in specific, limited cases.” (quoting 18 U.S.C.

§ 3553(b))). In Judge William Pryor’s statement respecting the denial of

rehearing, he says that once Booker invalidated the mandatory guideline system,

“it follows from the holdings in Booker that the Guidelines were never really

mandatory – not as a matter of law.” Pryor Statement, p. 22. However, no one can

dispute that when Mr. Lester was in the courtroom facing his sentence in 2004, the

sentencing judge had no legal authority to sentence him to other than a sentence


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mandated by the Guidelines then in effect. But if it is true that Judge Pryor and I

agree that Mr. Lester’s sentence never should have been imposed as though it were

mandatory – I say we should agree to fix the sentences mistakenly imposed as

mandatory on Mr. Lester and others like him.

      We know that in the mine-run case, if any given Guidelines provision—say,

the career-offender provision—required a longer sentence, courts were legally

bound to impose that longer sentence, just as they would be bound to follow the

statutory provisions of ACCA. For that reason, the mandatory Guidelines must be

subject to vagueness challenges in the same way regulations are. E.g., FCC v. Fox

Television Stations, Inc., 567 U.S. 239, 253, 132 S. Ct. 2307, 2317 (2012) (“Th[e]

requirement of clarity in regulation is essential to the protections provided by the

Due Process Clause of the Fifth Amendment. It requires the invalidation of laws

that are impermissibly vague.” (citation omitted)). And five Courts of Appeal, this

one included, entertained vagueness challenges to the mandatory Guidelines. See

United States v. Savin, 349 F.3d 27, 38–39 (2d Cir. 2003); United States v.

Rutherford, 175 F.3d 899, 906 (11th Cir. 1999); United States v. Johnson, 130 F.3d

1352, 1354 (9th Cir. 1997); United States v. Jones, 979 F.2d 317, 318–19 (3d Cir.

1992); United States v. Moore, No. 95-5586, 1997 WL 71707, at *1 (4th Cir. Feb.

20, 1997) (per curiam) (unpublished). But see United States v. Brierton, 165 F.3d

1133, 1139 (7th Cir. 1999) (concluding the mandatory Guidelines were not subject


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to vagueness challenges), abrogation recognized by Cross v. United States, 892

F.3d 288, 296 (7th Cir. 2018); United States v. Smith, 73 F.3d 1414, 1417–18 (6th

Cir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United

States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).

      Mr. Lester’s case well illustrates why the mandatory Guidelines must give

fair notice of the conduct they punish. If he had not been designated a career-

offender, the law would not have permitted a sentence of higher than 151 months.

Once he was designated a career-offender, however, the law did not permit the

District Judge to impose a sentence of less than 262 months. The mandatory

Guidelines established sentences in the same way ACCA does. Under ACCA,

three prior qualifying convictions require a minimum fifteen-year sentence instead

of a maximum ten-year sentence. 28 U.S.C. § 924(e). Under the career-offender

guideline, two prior qualifying convictions required a minimum 262-month

sentence for Mr. Lester instead of a maximum 151-month sentence. U.S.S.G.

§ 4B1.2(a) (2003). Just like ACCA, the mandatory Guidelines were laws that

increased punishment. So in the same way as ACCA, they must be subject to

vagueness challenges. See Johnson v. United States, 135 S. Ct. at 2557; Cross,

892 F.3d at 304–06 (holding the mandatory Guidelines are subject to vagueness

challenges); In re Sapp, 827 F.3d 1334, 1338–39 (11th Cir. 2016) (Jordan,

Rosenbaum, and Jill Pryor, JJ., concurring).


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      The statute that made the Guidelines mandatory did allow departures in

limited circumstances. But this is not enough to insulate them from vagueness

challenges. For one thing, “departures [were] not available in every case, and in

fact [were] unavailable in most.” Booker, 543 U.S. at 243, 125 S. Ct. at 750; see

Cross v. United States, 892 F.3d at 305–06 (concluding that Booker “addressed,

and rejected, the argument that the possibility of departures from the mandatory

guideline range was enough to make it advisory”). For another, the Supreme Court

suggested that a defendant had a due process right to notice when a court was

going to sentence him above the guideline range. Specifically, in Burns v. United

States, 501 U.S. 129, 111 S. Ct. 2182 (1991), abrogated on other grounds as

recognized by Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683 (2010), the

Supreme Court read Federal Rule of Criminal Procedure 32 to require notice to a

defendant before a district court sua sponte departed upward from the mandatory

range. Id. at 135, 111 S. Ct. at 2186. Burns interpreted Rule 32 this way in part

because of the due process problems that would result if defendants were not given

notice. Id. at 138, 111 S. Ct. at 2187. I say that if due process demanded notice of

a departure above the mandatory Guidelines, certainly due process would likewise

demand notice that certain conduct would require imposition of a longer sentence

on account of one’s career offender status. At any rate, we know departures were

available from ACCA-enhanced sentences, see 18 U.S.C. § 3553(e), but this


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feature did not stop the Supreme Court from ruling the ACCA residual clause

unconstitutionally vague in Johnson.

       This Supreme Court precedent makes plain that the Griffin panel erred when

it held the mandatory Guidelines are not subject to vagueness challenges. See 823

F.3d at 1354–56. The Griffin panel said that the “logic and principles” of United

States v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015), which held the

advisory Guidelines are not subject to vagueness challenges, extended to the

mandatory Guidelines, thus insulating them from vagueness challenges as well.

See Griffin, 823 F.3d at 1354. The Supreme Court has endorsed the rationale of

Matchett,3 recognizing the advisory Guidelines neither define a crime nor fix a

sentence, but rather merely guide a judge’s sentencing discretion within the

applicable statutory range. Beckles v. United States, 580 U.S.               , 137 S. Ct. 886,

892 (2017).4 Griffin missed the mark when it said that the mandatory Guidelines

likewise only “cabin discretion.” 823 F.3d at 1355. The Supreme Court has

consistently held that the mandatory Guidelines were like sentencing laws. They


       3
         In the interest of full disclosure, I thought that Matchett’s ruling that the advisory
Guidelines are not subject to vagueness challenges was wrong. In re Clayton, 829 F.3d 1254,
1258–61 (Martin, J., concurring in the result). Of course, I stand corrected by the Supreme
Court’s ruling in Beckles.
       4
        Beckles did not decide anything about the mandatory Guidelines. 137 S. Ct. at 890
(“Because we hold that the advisory Guidelines are not subject to vagueness challenges under the
Due Process Clause, we reject petitioner’s argument.” (emphasis added)); id. at 903 n.4
(Sotomayor, J., concurring) (noting that Beckles leaves open the question of vagueness
challenges to the mandatory Guidelines).
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did not guide discretion—they fixed punishments. For that reason, they should be

subject to vagueness challenges.

                                         III.

      The Griffin panel also wrongly held that the rule established in Johnson does

not apply retroactively to cases like Mr. Lester’s for the reason that he was

sentenced under the mandatory Guidelines, as opposed to ACCA. 823 F.3d at

1355–56. Griffin’s refusal to give retroactive application to Johnson flies in the

face of the Supreme Court’s instruction to us that it should be applied retroactively.

Welch, 136 S. Ct. at 1268. Again, Johnson pronounced it unconstitutional to

impose longer sentences on people who were earlier convicted under statutes that

required judges to decide whether, in the ordinary case, the prior conviction posed

a “serious potential risk of physical injury to another.” 135 S. Ct. at 2563; see also

18 U.S.C. § 924(e)(2)(B). The Supreme Court has told us that this rule applies

retroactively, and Mr. Lester should have been able to benefit from it.

      Griffin’s recognition of the retroactive application of the Johnson rule for

one statute, but not for others, is a novel approach I have not found elsewhere.

Notably, Griffin cited no legal precedent that would allow us to parcel out

retroactivity in this way. See In re Sapp, 827 F.3d at 1339–40 (Jordan,

Rosenbaum, and Jill Pryor, JJ., concurring) (noting that Griffin had no authority

for its assumed premise “that a substantive rule of constitutional law expressly


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made retroactive by the Supreme Court can later be made only partially retroactive

by a circuit court”). Neither have my independent efforts located support for this

concept. To my knowledge, the Supreme Court has never sanctioned giving

intermittent retroactive application to a decision since Teague v. Lane, 489 U.S.

288, 109 S. Ct. 1060 (1989), established the current law on retroactivity. One of

our sister circuits seems to have assumed, as Griffin did, that Johnson might not

always apply retroactively. See Cross, 892 F.3d at 306–07 (observing that the

Supreme Court’s reasoning in Welch “justifies treating Johnson as substantive, and

therefore retroactive, when applied to the mandatory guidelines”). But like the

Griffin opinion, Cross did not explain its retroactivity principle either. Also, Cross

is in some tension with other 7th Circuit precedent. See Price v. United States, 795

F.3d 731, 732 (7th Cir. 2015) (“We now conclude, consistently with the

government’s position, that Johnson announces a new substantive rule of

constitutional law that the Supreme Court has categorically made retroactive to

final convictions.” (emphasis added)). Other circuits appear to have rejected

intermittent retroactivity. See In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016)

(“[T]he government has cited no case to support the proposition that a rule can be

substantive in one context but procedural in another.”); see also United States v.

Doe, 810 F.3d 132, 154 & n.13 (3d Cir. 2015) (accepting the government’s

concession that Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), an


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ACCA case, applies retroactively on collateral review of a sentence and observing

that “[u]nder Teague, either a rule is retroactive or it is not”).

      The Supreme Court does not ask in each case whether a new rule, as applied,

would meet Teague’s retroactivity standard. Instead, it analyzes whether the rule

itself meets the retroactivity standard and then determines whether the petitioner

can benefit from the rule. See Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.

Ct. 1029, 1032 (2008) (“New constitutional rules announced by this Court that

place certain kinds of primary individual conduct beyond the power of the state to

proscribe . . . must be applied in . . . all federal habeas corpus proceedings.”)

(emphasis added)).

      Two cases make the point. In Sawyer v. Smith, 497 U.S. 227, 110 S. Ct.

2822 (1990), the Supreme Court considered whether Caldwell v. Mississippi, 472

U.S. 320, 105 S. Ct. 2633 (1985), which prohibited death sentences imposed by

juries who were led to believe the responsibility for the sentence rested elsewhere,

applied retroactively. In conducting the retroactivity analysis, the Sawyer Court

left to one side “the significant questions concerning the merits of petitioner’s

Caldwell claim . . . , or the question whether application of Caldwell to the facts

presented . . . would itself involve a new rule of law.” Sawyer, 497 U.S. at 234,

110 S. Ct. at 2827. It spoke only to “whether Caldwell is available to petitioner as

a ground upon which he may seek relief”—that is, whether Caldwell announced a


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retroactively applicable rule, separate and apart from the merits of the petitioner’s

Caldwell claim. Id.

        For another example, in O’Dell v. Netherland, 521 U.S. 151, 117 S. Ct. 1969

(1997), the Supreme Court addressed the retroactivity of Simmons v. South

Carolina, 512 U.S. 154, 114 S. Ct. 2187 (1994), which requires a capital defendant

be permitted to inform a jury deciding whether to impose a death sentence that he

is not eligible for parole when the prosecution argues he presents a future danger.

Before considering whether the petitioner’s claim came within the scope of the

Simmons rule, the Court explained it had to “determine whether the rule of

Simmons was new for Teague purposes, and, if so, whether that rule falls within

one of the two exceptions to Teague’s bar.” O’Dell, 521 U.S. at 159, 117 S. Ct. at

1974.

        This Court’s own precedent (Griffin aside) likewise treats rules as either

retroactive or not. E.g., In re Hill, 777 F.3d 1214, 1223–24 (11th Cir. 2015) (per

curiam); In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). In In re Hill, for

example, the panel first ruled that Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986

(2014), did not apply retroactively on collateral review and only then ruled in the

alternative that the petitioner did not come within the Hall rule. 777 F.3d at 1223–

24. Our sister circuits seem to follow a similar practice. See, e.g., Hubbard, 825

F.3d at 234; Price, 795 F.3d at 734. But see Cross, 892 F.3d at 306–07.


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      It is worth noting that this across-the-board approach to retroactivity

emerged from a backlash to pre-Teague jurisprudence. Before Teague, the

Supreme Court decided whether a new rule applied retroactively in any given

collateral review case by weighing the purpose of the new rule, the reliance of the

States on prior law, and the effect on the administration of justice of a retroactive

application of the new rule. See Linkletter v. Walker, 381 U.S. 618, 636–39, 85 S.

Ct. 1731, 1741–43 (1965). The Linkletter standard resulted in an “unfortunate

disparity in the treatment of similarly situated defendants on collateral review,”

and the Supreme Court abandoned it for that reason. Teague, 489 U.S. at 305, 109

S. Ct. at 1072. The Griffin holding that substantive rules may apply retroactively

in some cases but not others likewise invites disparity between habeas petitioners.

Its holding is thus inconsistent with the purpose that drove the Teague decision:

that new substantive rules should apply to all petitioners on collateral review. Id.

at 316, 109 S. Ct. at 1078.

      Perhaps worst of all, Griffin gave no explanation for its novel retroactivity

holding. If this Court intends to intermittently apply rules retroactively, it should

give the many habeas petitioners who come to us seeking relief an understanding

of when a rule will apply retroactively to their case. This is particularly true

where, as here, this Court does not intend to apply the rule after the Supreme Court




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has told us it applies retroactively. Will we do it case by case? Statute by statute?

Griffin gives no answer to these questions.

                                         IV.

      Griffin also indicates that Johnson should be treated differently for

sentencing Guidelines, because in that context Johnson would merely “produce

changes in how the sentencing procedural process is to be conducted.” Griffin,

823 F.3d at 1355. The suggestion is that Johnson, applied to a mandatory

Guidelines sentence, would merely change how a sentence is calculated and not the

sentence itself. This fundamentally misunderstands how the mandatory Guidelines

worked.

       Mr. Lester’s case is illustrative. By law, the longest sentence he could have

received if not deemed a career offender was 151 months. Once categorized as a

career-offender, however, the shortest sentence District Court was legally allowed

to give him was 262 months. In effect, the mandatory Guidelines set minimum

and maximum sentences. Sapp, 827 F.3d at 1340 (Jordan, Rosenbaum, and Jill

Pryor, JJ., concurring) (citing United States v. Wright, 607 F.3d 708, 718 (11th Cir.

2010) (William Pryor, J., concurring) (“Because Congress required sentencing

courts to apply the [mandatory] Sentencing Guidelines and impose a sentence

within the applicable guideline range, it was reasonable to view the Guidelines as




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effectively setting minimum and maximum penalties that varied based on the

circumstances of the offense and the characteristics of the offender.”).

      Neither is it an answer to say, as Griffin does, that Johnson’s rule is simply

procedural because Mr. Lester might receive the same sentence if he were

resentenced now under the advisory Guidelines. Judge William Pryor makes this

argument as well. Pryor Statement, pp. 11–12. On remand a district court would

resentence Mr. Lester under the advisory Guidelines, as opposed to the mandatory

Guidelines, and this is a difference with constitutional significance. See Booker,

543 U.S. at 233–34, 125 S. Ct. at 750; see also Beckles, 137 S. Ct. at 892 (noting

that the advisory Guidelines “merely guide the exercise of a court’s discretion in

choosing an appropriate sentence within the statutory range”). There is no

constitutional doubt about the authority of a district judge to “exercise broad

discretion in imposing a sentence within a statutory range,” including taking a

defendant’s criminal history into account. Booker, 543 U.S. at 233, 125 S. Ct. at

750. But Johnson makes clear that Congress had no power to require a longer

sentence based on a prior conviction because it “involves conduct that presents a

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

(2003). In that sense, Johnson “alter[ed] the range of conduct . . . that the law

punishes.” Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 2523

(2004).


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      What’s more, the Supreme Court has taught us in other contexts that a rule is

not procedural just because a court might impose the same sentence after

resentencing. In Montgomery v. Louisiana, 577 U.S.            , 136 S. Ct. 718 (2016),

the Supreme Court held that the right of all but permanently incorrigible juveniles

not to be sentenced to life without parole was a substantive rule. Id. at 732–34.

Montgomery addressed a class of juvenile offenders who were being punished in

an unconstitutional way. The opinion recognized that a subset of the juvenile

offender class might be permanently incorrigible, and therefore entitled to no

relief. However, this did not change the substantive right afforded to all juveniles.

The same is true here. On remand, a district court could have decided that the

sentence it imposed under the mandatory regime remains appropriate in light of the

§ 3553(a) factors. But this possibility does not change Johnson’s pronouncement

of a substantive right not to have a longer sentence mandated under an

unconstitutionally vague law. See Sapp, 827 F.3d at 1341 (Jordan, Rosenbaum,

and Jill Pryor, JJ., concurring).

                                             V.

      Mr. Lester should have been able to correct his 262-month career-offender

sentence by a § 2255 motion in this Circuit, where he was sentenced. The residual

clause in the mandatory Guidelines is unconstitutional for the same reasons it is

unconstitutional in ACCA. There is simply no meaningful distinction between the


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two. See United States v. Brown, 868 F.3d 297, 311 (4th Cir. 2017) (Gregory,

C.J., dissenting). This Court treats precedent interpreting the two as

interchangeable. See Gilbert v. United States, 640 F.3d 1293, 1309 n.16 (11th Cir.

2011) (en banc). If a sentence imposed under the ACCA residual clause “does not

comport with the Constitution’s guarantee of due process,” it must be true that

relying on an identical “shapeless . . . provision” to impose a mandatory Guideline

sentence doesn’t either. Johnson, 135 S. Ct. at 2560.

      The relief Mr. Lester got from the Fourth Circuit highlights the limits this

Court has placed on the Great Writ. His sentence was doubly infirm. He should

not have been sentenced as a career offender. And his sentence was the product of

an unconstitutionally vague Guidelines provision. The Fourth Circuit corrected the

former error. If Mr. Lester had been convicted in the Seventh Circuit, that court

would have corrected the latter. Eleventh Circuit precedent holds we have no

power to do either.

      I hoped our en banc Court would give Mr. Lester relief. Fortunately the

Court’s decision not to do so did not stand in the way of his freedom. But it bears

notice that our unwillingness to reconsider Mr. Lester’s sentence will impact

scores of inmates sentenced under the mandatory Guidelines in Alabama, Georgia,

and Florida who have not been incarcerated outside of the Eleventh Circuit.




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ROSENBAUM, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit

Judges, respecting the denial of rehearing en banc:

      I agree with Judge Martin’s well-reasoned Statement respecting the denial of

rehearing en banc. I write separately only to add a few points in response to Judge

William Pryor’s Statement respecting the denial of rehearing en banc (“Pryor

Statement”).

      Section I of this dissent takes issue with the Pryor Statement’s argument that

prisoners sentenced under the pre-Booker1 Guidelines can never state a successful

Johnson2 claim because Johnson’s rule is not retroactively applicable to them. As I

explain, Johnson’s rule, in fact, is retroactively applicable to such prisoners since

pre-Booker, prisoners wrongly sentenced under the career-offender guideline were

subjected to higher mandatory-minimum sentences than they otherwise would have

been. Section II explores the Pryor Statement’s theory that the Sentencing

Guidelines “were never really mandatory,” Pryor Statement at 22, even though

individuals sentenced during the two decades when courts applied the pre-Booker

Guidelines—including the career-offender provision—remain in prison because of

a sentencing regime that supposedly never was. And Section III shows how the

Pryor Statement’s theory that judicial opinions never change the law cannot be



      1
          United States v. Booker, 543 U.S. 220 (2005).
      2
          Johnson v. United States, 135 S. Ct. 2551 (2015).

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conceptually squared with the real effects of judicial opinions and the courts’ role in

our constitutional system.

                                           I.

      The Pryor Statement asserts that Lester could not state a viable Johnson claim

because Johnson is not retroactively applicable to cases where the career-offender

guideline was applied pre-Booker. Pryor Statement at 22-23. It arrives at this

incorrect conclusion by oversimplifying the “doctrinal pedigree and rationale of the

substantive exception” that requires retroactivity. That oversimplification

incorrectly causes the Pryor Statement to overlook the constitutional significance of

wrongly applied mandatory-minimum sentences. Id. at 10.

      In fact, as I have explained in McCarthan v. Director of Goodwill Industries—

Suncoast, Inc., 851 F.3d 1076, 1121-41 (11th Cir. 2017) (en banc) (Rosenbaum, J.,

dissenting), retroactivity applies when a previous rule imposed detention in violation

of the separation of powers or of the government’s limited powers—that is, when

the Congress, the Executive, or the Judiciary exercised powers it does not have in

relation to causing the detention of a person. See, e.g., Mackey v. United States, 401

U.S. 667, 692 (1971) (Harlan, J., concurring) (defining substantive rules that warrant

retroactivity as “those that place, as a matter of constitutional interpretation, certain

kinds of primary, private individual conduct beyond the power of the criminal law-

making authority to proscribe”) (emphasis added).


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      In Johnson, for example, Congress exceeded its authority by enacting an

unconstitutionally vague law—the residual clause of the Armed Career Criminal Act

(“ACCA”)—“that fix[ed] the permissible sentences for criminal offenses.” Beckles

v. United States, 137 S. Ct. 886, 892 (2017) (emphasis omitted). The Judiciary also

exceeded its authority when it applied this unconstitutional law to, among other

things, increase mandatory-minimum sentences. See id. So not surprisingly, the

Supreme Court held Johnson’s rule retroactively applicable. Welch v. United States,

136 S. Ct. 1257 (2016).

      The residual clause of the career-offender guideline, as employed under the

pre-Booker regime, caused the same problem as the residual clause of the ACCA.

First, the career-offender guideline mirrored the language of the ACCA’s residual

clause that the Supreme Court ruled unconstitutionally vague. And second, as Judge

William Pryor has previously explained, when “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.” United States v. Wright, 607 F.3d

708, 717–18 (11th Cir. 2010) (Pryor, J.); see also Booker, 543 U.S. at 233–34

(opinion of Stevens, J.) (explaining how the pre-Booker Guidelines fixed sentences).




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      So a defendant wrongly found to qualify for the career-offender guideline was

subjected to a higher mandatory-minimum sentence than he would have been under

the mandatory Guidelines regime, had the career-offender guideline not been

applied. And that is a constitutional problem. See Alleyne v. United States, 570 U.S.

99, 112 (“It is impossible to dissociate the floor of a sentencing range from the

penalty affixed to the crime.”), 113 (“Elevating the low-end of a sentencing range

heightens the loss of liberty associated with the crime: the defendant’s expected

punishment has increased as a result of the narrowed range, and the prosecution is

empowered, by invoking the mandatory minimum, to require the judge to impose a

higher punishment than he might wish.”) (cleaned up) (2013). In other words, by

requiring courts to apply the unconstitutionally vague residual clause of the career-

offender guideline in a mandatory way, Congress exceeded its constitutional power,

since it prescribed mandatory-minimum sentences based on solely an

unconstitutionally vague guideline it gave the force of binding law. And we, in

applying these mandatory-minimum sentences based on solely an unconstitutionally

vague guideline, also acted beyond our jurisdiction.

      The Pryor Statement conveniently glosses over this constitutionally

significant problem, diverting attention by focusing on the fact that the pre-Booker

Guidelines did not cause defendants to be sentenced to higher maximum sentences

than they would have been under the post-Booker Guidelines. But that defendants


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were not exposed to higher maximum penalties does not somehow render

constitutionally insignificant the separate constitutional problem of “fix[ed]” higher

mandatory-minimum sentences for defendants than were permissible under the pre-

Booker regime. See Beckles v. United States, 137 S. Ct. 886, 892 (2017) (citing

Alleyne, 570 U.S. at 112-13, as “describing the legally prescribed range of available

sentences [which includes the mandatory minimum to the maximum] as the penalty

fixed to a crime”).

      The Pryor Statement has no answer to this problem. Instead, it conclusorily

insists all that matters is whether the sentence that was actually imposed could have

been applied under the substantive criminal statute for which the prisoner was

convicted. But that ignores the fact that when a court applied the career-offender

guideline during the mandatory Guidelines regime, the “legally prescribed range of

available sentences” differed from what it would have been in the absence of the

career-offender guideline during the mandatory Guidelines regime. In other words,

it disregards the constitutional pickle created when Congress exceeded its powers in

requiring, through 18 U.S.C. § 3553(b)(1)’s provision making the Guidelines

mandatory, courts to apply higher mandatory-minimum sentences than would have

otherwise applied in the absence of the unconstitutionally vague residual clause of

the career-offender guideline, and courts followed that mandate. And it pays no

attention to this problem even though the Supreme Court has expressly identified the


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constitutional significance attached to mandatory minimums. See Beckles, 137 S.

Ct. at 892 (citing Alleyne, 570 U.S. at 112-13).

      The Pryor Statement divorces the fact that Congress made all the Guidelines

mandatory through 18 U.S.C. § 3553(b)(1), from Congress’s exceeding of its powers

by making the unconstitutionally vague residual clause of the career-offender

guideline mandatory. By making this move, the Pryor Statement picks its real fight

with Booker, not Johnson. See Pryor Statement at 25 (“I argue that Booker’s holding

that their mandatory application was unconstitutional controls the question we are

discussing.”). In doing so, the Pryor Statement misses that Congress’s Johnson error

under the pre-Booker Guidelines was substantive in nature, since Congress exceeded

its powers in requiring courts to apply higher mandatory-minimum sentences based

solely on the unconstitutionally vague residual clause of the career-offender

guideline, and courts followed that mandate.

                                         II.

      Perhaps for this reason, the Pryor Statement takes a second tack to argue

prisoners incorrectly sentenced as career offenders pre-Booker have no cognizable

§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these

prisoners were actually sentenced under a mandatory regime. It reasons that since

the Supreme Court in Booker found that the mandatory Guidelines violated the Sixth




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Amendment, they “were never really mandatory,” even though courts applied them

that way for two decades. Pryor Statement at 22 (emphasis in original).

       Hmm.

       I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a

court sentenced them using a mandatory version of the Guidelines with an

indisputably unconstitutionally vague career-offender clause would agree.4

       Nor does the Pryor Statement’s conclusion that the Guidelines “were never

really mandatory” comport with what the Supreme Court has had to say on the

subject. On the contrary, the Court has bluntly explained that the pre-Booker

Guidelines “b[ou]nd judges and courts in the exercise of their uncontested

responsibility to pass sentence in criminal cases,” Mistretta v. United, 488 U.S. 361,

391 (1989), and “ha[d] the force and effect of laws, prescribing the sentences

criminal defendants are to receive,” id. at 413 (Scalia, J., dissenting); see also Stinson

v. United States, 508 U.S. 36, 42 (1993) (“The principle that the Guidelines Manual

is binding on federal courts applies as well to policy statements”). And just before



       3
         Brown v. United States, 139 S. Ct. 14, 16 n.4 (2018) (noting that there are likely at least
1,187 Johnson challenges to sentences under the pre-Booker career-offender clause).
       4
         The Pryor Statement expresses wonderment about whether the career-offender provision
of could “somehow [be] unconstitutionally vague . . . .” Pryor Statement at 12. He need not
wonder about the career-offender’s vagueness though because it employs the same language as the
ACCA, and the Sentencing Commission expressly modeled the career-offender Guideline after
the ACCA. U.S. Sentencing Guidelines Manual app. C, amend. 268 (U.S. Sentencing Comm’n
1989) (“The definition of crime of violence used in this amendment is derived from 18 U.S.C. §
924(e).”).
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excising the statutory provision that made the Guidelines mandatory, the Supreme

Court stated that the Guidelines “are not advisory; they are mandatory and binding

on all judges” because § 3553(b) “directs that the court ‘shall impose a sentence of

the kind, and within the range’ established by the Guidelines.” Booker, 543 U.S. at

233–34 (opinion of Stevens, J.).

      Indeed, the Pryor Statement’s conclusion today that the Guidelines “were

never really mandatory” conflicts even with Judge William Pryor’s own prior

statements. Judge Pryor has previously described the Sentencing Reform Act of

1984 as “ma[king] the Guidelines mandatory.” Wright, 607 F.3d at 717–18. In fact,

as I have noted, Judge Pryor found that “[b]ecause 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.” Id. (emphasis added). And he

explained that “the Court in . . . Booker . . . made the Guidelines advisory.” Id.

      Today, though, the Pryor Statement chalks these remarks up to a failure of

linguistic precision and seeks to rewrite history. See Pryor Statement at 17.

According to the Pryor Statement, the Booker Court did not make the Guidelines

advisory because they were always advisory, since the Sixth Amendment never




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allowed them to be mandatory.       Id. at 19. That is certainly interesting on a

metaphysical level.

      But it ignores reality. Back here on Earth, the laws of physics still apply. And

the Supreme Court’s invalidation of a law does not alter the space-time continuum.

Indeed, there can be no dispute that from when the Guidelines were adopted in 1984

to when the Supreme Court handed down Booker in 2005, courts mandatorily

applied them, as § 3553(b) required, to scores of criminal defendants—including

many who still sit in prison because of them.

      It’s also a particularly mindboggling bit of judicial fiction to, in one breath,

conclude that the Guidelines were always advisory, and in the next, withhold relief

from individuals in Lester’s circumstances by noting the advisory Guidelines do not

apply retroactively because Booker is a procedural rule, even though, according to

the Pryor Statement, the Guidelines always were advisory. Under the Pryor

Statement’s reasoning, the Guidelines were never mandatory, but to inmates like

Lester, they will always be mandatory, since these prisoners remain subject to their

punishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either

the Guidelines were never mandatory, in which case, Lester and inmates like Lester

would not have been sentenced under the mandatory regime or at least would not

remain in prison because of the mandatory regime (a circumstance that is clearly not




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the case), or they were mandatory until Booker ruled they weren’t, and inmates like

Lester can mount Johnson challenges.

                                          III.

       The last portion of the Pryor Statement that warrants a response is its theory

that when Booker invalidated the mandatory nature of the Guidelines, that was really

just a change in “judicial doctrine,” but not “a change in law.” Pryor Statement at

16. According to the Pryor Statement, the Supreme Court could not have made the

Sentencing Guidelines advisory because the “Supreme Court wields judicial power,

not legislative power” and therefore “has no power to amend the text or meaning of

any statute . . . .” Id. at 17.

       To be sure, the “Supreme Court wields judicial power, not legislative power”

and therefore “has no power to amend the text or meaning of any statute.” But that

does not mean the Supreme Court’s actions do not, in a very real sense, change the

law. In my view, there are at least two problems with the Pryor Statement’s line of

thinking to the contrary: it ignores the reality of what happened in Booker, and it

undermines the courts’ constitutional power of judicial review.

       First, I address what happened in Booker. When the United States went to

sleep on January 11, 2005, 18 U.S.C. § 3553(b)(1) was the law of the land, and

sentencing courts were required to “impose . . . sentence[s] of the kind, and within

the range” established by the Guidelines. But when the United States went to sleep


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on January 12, 2005—hours after the Court issued Booker—§ 3553(b)(1) no longer

had the force of law. And that is so solely because the Court eliminated § 3553(b)(1)

           “through severance and excision”5 in order to “make the Guidelines system

advisory.” Booker, 543 U.S. at 245 (opinion of Breyer, J.). In striking § 3553(b)(1),

the Court recognized that it was “alter[ing] the system that Congress designed.” Id.

       Despite the Supreme Court’s express words, the Pryor Statement opines that

though the Court may have “radically changed judicial doctrine,” that change was

not “equivalent” to a change in “the substance of the law.” Pryor Statement at 19.

Call it a change in doctrine, law, policy—pick the noun—but the reality will always

  be the same: the Court’s change effectively excised the Guidelines’ mandatory

language from the United States Code, rendering what were once statutorily imposed

   mandatory Guidelines advisory.             Importantly, the Court had a duty under the

       Constitution to make this change to our law because “[i]t is emphatically the

 province and duty of the judicial department to say what the law is.” Marbury v.

Madison, 5 U.S. 137, 177 (1803). And here, § 3553(b)(1) violated the Constitution.

That leads to my second point. Our duty to “say what the law is” likewise makes it

              our job, when a statute is unlawful, to render it unenforceable by saying

       5
        The Pryor Statement takes issue with my characterization of what the Supreme Court did
in Booker as “excis[ion].” See Pryor Statement at 27. Of course, that is precisely the word the
Supreme Court used. See Booker, 543 U.S. at 245 (opinion of Breyer, J.). And it used that word
because in the real world, that was the legal effect of what the Supreme Court did in Booker to the
mandatory nature of the Guidelines, whether the Pryor Statement wishes to acknowledge that fact
or not.
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what the Constitution requires of the statute. See id. (“If two laws conflict with each

other, the courts must decide on the operation of each.”); see also The Federalist No.

78. So while it is true that the “Supreme Court . . . has [only] the authority to say

what a statute means,” Pryor Statement at 17, sometimes those statements

necessarily force a change in the law. And under our Constitution, those changes

are every bit as valid and must be followed every bit as much as if Congress itself

had enacted them.

      Booker is a good example; one day the Guidelines were mandatory, and the

next day they were not, solely because of the Supreme Court’s opinion striking down

§ 3553(b)(1). So while we can pretend that the Supreme Court’s decisions do not

“change[] the law,” Pryor Statement at 17, the reality is that in our constitutional

system,        sometimes           they        can         and         they        do.

And as I have noted, when that happens, those changes are just as valid under our

constitutional system as if Congress had statutorily enacted them.

      Finally, I must respond to Judge Pryor’s charge that this Statement does not

“say what the law is,” but rather what I supposedly think “it should be.” See Pryor

Statement at 27 (quoting Marbury, 5 U.S. at 177) (quotation marks omitted). I trust

that any honest reading of this Statement soundly rebuts that accusation. Nor does

daring to disagree with the Pryor Statement’s analysis make my analysis either what




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I think the law “should be” or immodest. And I will let the irony of the Pryor

Statement’s suggestion to the contrary speak for itself.

                                         IV.

      In short, Johnson’s rule applies retroactively when an unconstitutionally

vague law results in the application of a fixed sentencing range that is higher than it

otherwise would have been. Pre-Booker, when courts applied the career-offender

guideline, that resulted in a higher mandatory minimum than otherwise would have

pertained to a defendant under the mandatorily applied Guidelines. So Johnson’s

rule applies to pre-Booker sentences that imposed the career-offender guideline

based on at least one predicate conviction that qualified under only the

unconstitutionally vague residual clause. Nor does the judicial fiction that the

Guidelines “were never really mandatory” somehow erase the fact that they were

applied in a mandatory way for more than 20 years. So if because of the residual

clause, a prisoner was incorrectly sentenced under the career-offender guideline in

the pre-Booker sentencing regime, he can establish a viable Johnson claim. And our

Circuit precedent to the contrary is simply wrong.




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