          United States Court of Appeals
                        For the First Circuit


No. 16-1668

                              IMAN HARDY,

                              Petitioner,

                                  v.

                       UNITED STATES OF AMERICA,

                              Respondent.


                 APPLICATION FOR LEAVE TO FILE A SECOND
              OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255


                                Before

                    Thompson, Kayatta, and Barron,
                            Circuit Judges.


     Sharon Fray-Witzer for petitioner.
     Michael A. Rotker, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom Kenneth A. Blanco,
Acting Assistant Attorney General, Criminal Division, U.S.
Department of Justice, Trevor N. McFadden, Deputy Assistant
Attorney General, Criminal Division, U.S. Department of Justice,
William D. Weinreb, Acting U.S. Attorney, and Dina M. Chaitowitz,
Assistant U.S. Attorney, Chief, Appellate Division, were on brief,
for respondent.


                          September 13, 2017
           KAYATTA, Circuit Judge.          For the reasons stated in

today's opinion in Moore v. United States, No. 16-1612 (1st Cir.

Sept. 13, 2017), we certify Iman Hardy's successive § 2255 motion

insofar as it argues that Johnson II invalidates the residual

clause of the pre-Booker career offender guideline.         See 28 U.S.C.

§   2255(h)(2)    (setting   out   the   certification   requirements   for

successive motions).

           Hardy also argues that Welch v. United States, 136 S.

Ct. 1257 (2016), establishes that United States v. Booker, 543

U.S. 220 (2005), is a substantive decision with retroactive effect.

We cannot certify this portion of Hardy's motion.          This court has

already held that Booker was not a substantive decision and

therefore did not have retroactive effect.           See Cirilo-Muñoz v.

United States, 404 F.3d 527, 532–33 (1st Cir. 2005); see also

Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003)

(holding that Apprendi v. New Jersey, 530 U.S. 466 (2000), which

held that a jury rather than a judge must find facts that raise a

statutory maximum, was not a substantive decision).         Welch has not

cast doubt on that holding.          Instead, Welch reaffirmed that a

decision   that    "'allocate[s]    decisionmaking   authority'   between

judge and jury" is procedural.       Welch, 136 S. Ct. at 1265 (quoting

Schriro v. Summerlin, 542 U.S. 348, 353 (2004)).            Booker, which

held that the mandatory guidelines were unconstitutional insofar

as they allowed a judge, rather than a jury, to find facts that


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increased a defendant's maximum mandatory guidelines sentence, 543

U.S. at 244 (opinion of Stevens, J.), was precisely a decision of

this sort.

             Accordingly, we certify Iman Hardy's successive § 2255

motion insofar as it argues that Johnson II invalidates the

residual clause of the pre-Booker career offender guideline.     We

do not certify it insofar as it argues that Booker is a substantive

decision with retroactive effect under Welch.




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