                Case: 16-12012       Date Filed: 05/25/2016       Page: 1 of 11


                                                                                      [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                 ________________________

                                       No. 16-12012-J
                                 ________________________

IN RE: MARVIN GRIFFIN,

                                                                                        Petitioner.

                                __________________________

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

Before TJOFLAT, HULL and JULIE CARNES, Circuit Judges.

B Y T H E P A N E L:

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

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

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

may be granted only if this Court certifies that the second or successive motion contains a claim

involving:

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

              (2) a new rule of constitutional law, made retroactive to cases on collateral
       review by the Supreme Court, that was previously unavailable.
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28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements of this subsection.”        Id. § 2244(b)(3)(C); see also

Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this

Court’s determination that an applicant has made a prima facie showing that the statutory criteria

have been met is simply a threshold determination).

                   I. FACTUAL AND PROCEDURAL BACKGROUND

       In 1998, after a jury trial, Griffin was convicted of attempting to possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846. The presentence investigation report (“PSI”)

indicated that Griffin had these prior Florida convictions: (1) a 1984 conviction for burglary of a

dwelling; (2) 1985 convictions for disorderly conduct and obstructing a law enforcement officer;

(3) 1986 convictions for robbery and resisting an officer without violence; (4) a 1988 conviction

for driving with a suspended license; (5) a 1989 conviction for resisting arrest without violence;

(6) 1990 convictions for driving with a suspended license and resisting an officer without

violence; and (7) 1992 convictions for grand theft and petit theft. The PSI reported that Griffin’s

drug quantity was six kilograms of cocaine, which he picked up on the day of his arrest.

       The PSI stated that Griffin was a career offender under U.S.S.G. § 4B1.1 because of his

1984 conviction for burglary of a dwelling and 1986 conviction for robbery. Section 4B1.2,

which defines career-offender-predicate “crimes of violence,” expressly stated that “crime of

violence” includes burglary of a dwelling. The PSI also reported that, during the 1986 predicate

robbery, Griffin snatched open the victim-driver’s car door and reached over the victim-driver to
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grab the victim’s bag. The victim and Griffin “struggled violently.” Griffin ended up forcibly

tearing the bag off of its strap, leaving the victim holding the strap as he fled. 1

        The career offender enhancement predicated on the 1984 burglary of a dwelling and the

1986 robbery increased Griffin’s criminal history category to VI. Griffin’s offense level of 37

and criminal history category of VI resulted in a guidelines range of 360 months’ to life

imprisonment. The district court found that Griffin was a career offender, adopting the PSI’s

factual findings and recommendations concerning the enhancement, and sentenced Griffin to 360

months’ imprisonment on the drug conspiracy. 2

        Griffin filed a direct appeal challenging, inter alia, his career offender status. This Court

affirmed his conviction and sentence, concluding that the “law of our circuit is clear” on whether

the Sentencing Commission exceeded its statutory authority in adopting an application note to

§ 4B1.2, which defines the terms used in the § 4B1.1 career offender guideline. This Court also

rejected Griffin’s argument that the government was required to comply with the 21 U.S.C. § 851

notice requirement before his sentence could be enhanced under the Guidelines. On direct

appeal, Griffin did not challenge whether his prior burglary of a dwelling and robbery convictions

qualified under the definition of a crime of violence in the Guidelines.

        In 2002, Griffin filed his first § 2255 motion based on ineffective assistance of counsel,

which the district court denied. This Court determined that Griffin’s appeal was not timely filed.

        1
        The PSI shows that Griffin fled to a waiting car driven by his codefendant, and entered the
car, which sped away, and a high-speed chase with the police ensued.
        2
         The government argued for an obstruction of justice increase in the base offense level,
which was denied by the district court. Defense counsel requested a U.S.S.G. § 5K2.0 departure
from the guidelines range, based on the grounds that Griffin’s actual culpability was overstated.
See U.S.S.G. § 5K2.0 (stating that the sentencing court may impose a sentence outside of the
applicable guidelines range in certain circumstances). The probation officer responded, stating
that Griffin had six kilograms of cocaine, and the district court ultimately did not grant a departure.
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                       II. GRIFFIN’S CURRENT § 2255 APPLICATION

       In his application, Griffin seeks to raise two claims in a second or successive § 2255

motion. Griffin asserts that his claims rely upon new rules of constitutional law. In his first

claim, Griffin asserts that his sentence was improperly enhanced under the career offender

guideline, based on his prior convictions for burglary of a dwelling and robbery. Griffin’s first

claim relies on Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), in which the United

States Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”)

was unconstitutionally vague, and Griffin asserts that the residual clause of the ACCA is identical

to the relevant clause in the career offender guideline. In his second claim, Griffin asserts that his

sentence was improperly enhanced under the career offender guideline based on his prior

conviction for burglary of a dwelling, because the burglary statute under which he was convicted is

indivisible. Griffin’s second claim relies upon an allegedly new rule of law that the modified

categorical approach cannot be applied to indivisible statutes, from Descamps v. United States,

570 U.S. ___, 133 S. Ct. 2276 (2013). Griffin was sentenced in 1998, pre-Booker, 3 when the

Guidelines were mandatory.

       The ACCA defines violent felony as any crime punishable by a term of imprisonment

exceeding one year that:

       (i)       has as an element the use, attempted use, or threatened use of physical force
                 against the person of another; or

       (ii)      is burglary, arson, or extortion, involves use of explosives, or otherwise
                 involves conduct that presents a serious potential risk of physical injury to
                 another.




       3
           United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the

“elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is

commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir.

2012).

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

career offender if he (1) was at least 18 years old at the time of the offense of conviction; (2) the

offense of conviction was a felony and either a crime of violence or a controlled substance offense;

and (3) he had at least two prior felony convictions of either a crime of violence or a controlled

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

offense under federal or state law that is punishable by imprisonment for more than one year and:

         (1)    has as an element the use, attempted use, or threatened use of physical force
                against the person of another, or

         (2)    is burglary of a dwelling, arson, or extortion, involves use of explosives, or
                otherwise involves conduct that presents a serious potential risk of physical
                injury to another.

U.S.S.G. § 4B1.2(a).

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

is unconstitutionally vague. Johnson, 576 U.S. at ___, 135 S. Ct. at 2557-58, 2563. The

Supreme Court clarified that, in holding that the residual clause is void, it did not call into question

the application of the elements clause and the enumerated crimes clause of the ACCA’s definition

of a violent felony. Id. at ___, 135 S. Ct. at 2563. On April 18, 2016, the Supreme Court held in

Welch v. United States that Johnson announced a new substantive rule that applies retroactively

to cases on collateral review.   Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016).
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       In 2015, this Court issued our decision in United States v. Matchett, 802 F.3d 1185,

1193-96 (11th Cir. 2015), and held that the vagueness doctrine, upon which the Supreme Court

invalidated the ACCA’s residual clause in Johnson, did not similarly apply to the Sentencing

Guidelines.   We explained that the vagueness doctrine applies both to statutes that define

elements of crimes and to statutes fixing sentences, but noted that “the advisory guidelines do

neither.” Id. at 1194. We then emphasized that, because the pre-Guidelines sentencing scheme

that gave plenary discretion to sentencing judges did not violate the notice requirement of the Due

Process Clause, advisory guidelines that merely “inform a sentencing judge’s discretion also

cannot violate the notice requirement.”       Id. at 1194-95.     Finally, we explicitly rejected

Matchett’s policy-based argument that allowing the identically worded residual clause in

§ 4B1.2(a) to stand would upend the sentencing process by forcing sentencing courts to apply a

clause that Johnson determined to lack precise meaning. Id. at 1195. We explained that

       Although Johnson abrogated the previous decisions of the Supreme Court
       interpreting the residual clause of the Armed Career Criminal Act, sentencing
       courts interpreting the residual clause of the guidelines must still adhere to the
       reasoning of cases interpreting the nearly identical language in the Act.
       [Matchett’s] policy concern is properly addressed to the United States Sentencing
       Commission . . . .

Id. at 1195-96.

       Before analyzing Griffin’s claims, we point out that an allegation by a petitioner that

meets § 2255(h)’s requirements in the abstract only “represent[s] the minimum showing”

necessary to file a successive § 2255 motion because, under § 2244(b)(3)(C), the applicant also

must make “a prima facie showing that the application satisfies the requirements of this

subsection.” In re Holladay, 331 F.3d 1169, 1173, 1177 (11th Cir. 2003) (quotation marks

omitted) (granting a state death-row inmate’s successive application because he had proffered
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detailed evidence, in satisfaction of § 2244(b)(3)(C), that showed “a reasonable likelihood that

[he] is mentally retarded” to support his proposed Atkins claim). Accordingly, it is not enough for

a federal prisoner to simply identify Johnson and the residual clause as the basis for the claim or

claims he seeks to raise in a second or successive § 2255 motion, but he also must show that he was

sentenced under the residual clause in the ACCA and that he falls within the scope of the new

substantive rule announced in Johnson. See, e.g., id.; 28 U.S.C. § 2244(b)(3)(C).

                                    III. JOHNSON CLAIM

       Here, Griffin has not made a prima facie showing that his first claim satisfies the criteria of

§ 2255(h)(2). Griffin was not sentenced under the ACCA or beyond the statutory maximum for

his drug crime. Rather, this case involves only the career offender guideline.

       Griffin is unable to make a prima facie showing that Johnson applies to him in light of our

binding precedent in Matchett that the Sentencing Guidelines cannot be challenged as

unconstitutionally vague. See Matchett, 802 F.3d at 1193-96.

       We recognize that Griffin’s sentence was imposed in 1998, when the Guidelines were

mandatory, and Matchett’s sentence was imposed in 2014, when the Guidelines were advisory.

For the following reasons, the logic and principles established in Matchett also govern our panel as

to Griffin’s guidelines sentence when the Guidelines were mandatory.

       The Guidelines—whether mandatory or advisory— cannot be unconstitutionally vague

because they do not establish the illegality of any conduct and are designed to assist and limit the

discretion of the sentencing judge. Id. at 1195. The limitations the Guidelines place on a judge’s

discretion cannot violate a defendant’s right to due process by reason of being vague. The

Guidelines do not define illegal conduct: they are directives to judges for their guidance in
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sentencing convicted criminals, not to citizens at large. Id. at 1195-96. Due process does not

mandate notice of where, within the statutory range, the guidelines sentence will fall.

       Indeed, a defendant’s due process rights are unimpaired by the complete absence of

sentencing guidelines. The Constitution does not require sentencing guidelines in noncapital

cases. Id. at 1194. Because there is no constitutional right to sentencing only under guidelines,

the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to

due process by reason of being vague. Id. at 1194-95. Before Congress enacted the Guidelines,

the federal government had indeterminate sentencing. Id. at 1195. Even vague guidelines cabin

discretion more than no guidelines at all.

       Further, here too, after his jury trial, the PSI gave Griffin notice of the career offender

increase. It concluded that he qualified as a career offender, recommended that the guideline

§ 4B1.1 enhancement be applied, and expressly listed his robbery and burglary convictions as the

two predicate convictions. Griffin was accorded adequate due process with respect to the PSI and

his guidelines sentence.

       Even assuming arguendo that, going forward, we somehow can write around our Matchett

precedent and are bound by Johnson’s characterization of the residual clause as unduly vague for

ACCA purposes when considering whether the residual clause in the career offender guideline in

§ 4B1.1 of the Sentencing Guidelines remains viable, that does not mean that the ruling in Welch

makes Johnson retroactive for purposes of a second or successive § 2255 motion premised on the

applicability of Johnson to a guidelines challenge, just because the guidelines challenge happens

to be based on the residual clause. The application of Johnson to the ACCA was a substantive

change in the law because it altered the statutory range of permissible sentences. That is,

application of the ACCA without consideration of Johnson elevated the statutory maximum and
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produced a sentence that necessarily exceeds the otherwise-applicable unenhanced statutory

maximum. See Welch, 578 U.S. at ___, 136 S. Ct. at 1265.

       By contrast, a rule extending Johnson and concluding that it invalidates the

crime-of-violence residual clause in the Guidelines would establish only that the defendant’s

guidelines range had been incorrectly calculated, but it would not alter the statutory boundaries for

sentencing set by Congress for the crime. An error in calculating a defendant’s guidelines

sentencing range does not (and could not) alter the statutory sentencing range set by Congress for

the crime within which the sentencing court may impose a sentence, and it would not (and could

not) produce a sentence that exceeds the statutory maximum. Instead, such a rule when applied in

the guidelines context would produce changes in how the sentencing procedural process is to be

conducted—changes that are not entitled to retroactive effect in cases on collateral review in a

second or successive § 2255 motion.

       The final telling point is this. When the ACCA’s residual clause is applied and the

challenged sentence exceeds the unenhanced statutory maximum because of the ACCA’s residual

clause, then Johnson requires the district court to reduce the enhanced sentence to at least the

unenhanced applicable statutory maximum.          In stark contrast, whether the Guidelines are

mandatory or advisory, the district court, even without the invalidated residual clause, could still

impose a sentence within the same statutory penalty range and indeed the same sentence as before.

In fact, in former mandatory guidelines cases, the resentencing would now be under an even more

discretionary advisory system that would permit the district court to impose the same sentence.

       A rule that the Guidelines must satisfy due process vagueness standards therefore differs

fundamentally and qualitatively from a holding that a particular criminal statute or the ACCA

sentencing statute—that increases the statutory maximum penalty for the underlying new
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crime—is substantively vague. 4 Given our Matchett precedent and for all of the above reasons,

Griffin’s first guidelines claim fails. Accordingly, Griffin has not presented a prima facie case

under Johnson and Welch as to his two predicate crimes of violence under the Guidelines.

                                   IV. DESCAMPS CLAIM

       As to Griffin’s second claim based on Descamps, we have held that the rule in Descamps is

not new and thus is retroactive in a first § 2255 motion case. Mays v. United States, 817 F.3d 728,

734 (11th Cir. 2016) (“As the Supreme Court and other circuits have recognized, Descamps did

not announce a new rule—its holding merely clarified existing precedent.”); see United States v.

Davis, 751 F.3d 769, 775 (6th Cir. 2014) (noting that “[t]he Supreme Court in Descamps explained

that it was not announcing a new rule, but was simply reaffirming” an existing approach).

       In contrast, to open the successive § 2255 door, the rule must be both new and a rule of

constitutional law. Descamps is a rule of statutory interpretation, not constitutional law. See

Ezell v. United States, 778 F.3d 762, 763 (9th Cir. 2015) (“[T]he the Supreme Court did not

announce a new rule of constitutional law in Descamps. Rather, it clarified—as a matter of

statutory interpretation—application of the ACCA in light of existing precedent.”), cert. denied,

136 S. Ct. 256 (2015); In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015) (“Nothing in Descamps

indicates that its holding announced a new rule that was constitutionally based, and Descamps did

not announce that its holding applied retroactively to cases on collateral review.”); In re

Blackshire, 98 F.3d 1293, 1294 (11th Cir. 1996) (holding that a Supreme Court case interpreting a



       4
         The Supreme Court has not applied Johnson to the Sentencing Guidelines, much less
made such an extension retroactive for purpose of successive § 2255 motions. If that were to
happen, then we point out that denials of successive applications are without prejudice, and thus
our decision does not preclude Griffin from filing a new successive application in the event of
future Supreme Court constitutional rulings about the Sentencing Guidelines, subject to all statutes
of limitations and tolling provisions.
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substantive criminal statute did not announce a new rule of constitutional law). Descamps did not

announce a new rule of constitutional law as required by § 2255(h)(2).             See 28 U.S.C.

§ 2255(h)(2); In re Thomas, ___ F.3d ___, Nos. 16-12065 & 16-12649, manuscript order at *5-6

(11th Cir. May 25, 2016).

       Accordingly, Griffin has not presented a prima facie case under Descamps, as required by

§ 2255(h)(2), with regard to his career offender guideline sentence.

                                      V. CONCLUSION

       Because Griffin has failed to make a prima facie showing that he has raised a claim that

meets the statutory grounds set forth in 28 U.S.C. § 2255(h), his application for leave to file a

second or successive motion is hereby DENIED.
