     18-1803-pr
     Nunez v. United States

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3                             ____________________
 4
 5                                  August Term, 2019
 6
 7   (Argued: August 29, 2019                                Decided: March 30, 2020)
 8
 9                                Docket No. 18-1803-pr
10
11                                ____________________
12
13   MIGUEL NUNEZ,
14
15                                  Petitioner-Appellant,
16
17                      v.
18
19   UNITED STATES OF AMERICA,
20
21                                  Respondent-Appellee.
22
23                                ____________________
24
25   Before: POOLER, PARKER, and RAGGI, Circuit Judges.
26
27         Petitioner Miguel Nunez appeals from a judgment of the United States

28   District Court for the Southern District of New York (Lewis A. Kaplan, J.)

29   denying his 28 U.S.C. § 2255 motion as untimely. The district court held that

30   Nunez could not show that his motion was timely pursuant to 28 U.S.C. §
 1   2255(f)(3) because the Supreme Court’s decision in Johnson v. United States, 135 S.

 2   Ct. 2551 (2015), did not recognize a retroactive right not to be sentenced based

 3   upon the residual clause in the Career Offender Guideline of the pre-Booker

 4   Sentencing Guidelines. We hold that the district court properly concluded that

 5   Johnson did not give rise to the right Nunez asserts and, therefore, correctly

 6   denied his Section 2255 motion as untimely.

 7         Affirmed.

 8         Judge Pooler and Judge Raggi each concur in separate opinions.

 9                                 ____________________

10                             EDWARD S. ZAS, Federal Defenders of New York, Inc.,
11                             Appeals Bureau, New York, NY, for Petitioner-Appellant
12                             Miguel Nunez.
13
14                             NATHAN REHN, Assistant United States Attorney
15                             (Anna M. Skotko, Assistant United States Attorney, on
16                             the brief), for Geoffrey S. Berman, United States Attorney
17                             for the Southern District of New York, New York, NY,
18                             for Respondent-Appellee.
19
20
21
22
23
24
25
26

                                              2
 1   POOLER, Circuit Judge:

 2         Petitioner Miguel Nunez appeals from the May 24, 2018 judgment of the

 3   United States District Court for the Southern District of New York (Lewis A.

 4   Kaplan, J.) denying as untimely Nunez’s 28 U.S.C. § 2255 motion challenging his

 5   February 7, 2000 sentence for substantive and conspiratorial Hobbs Act robbery.

 6   See 18 U.S.C. § 1951(a). Nunez is currently serving 360 months’ imprisonment for

 7   these crimes, a significant upward departure from the 151-to-188 month

 8   Guidelines range calculated by the district court under the presumptively

 9   binding pre-Booker Sentencing Guidelines. See United States v. Booker, 543 U.S. 220

10   (2005). That Guidelines range was dictated by the Career Offender Guideline, see

11   U.S.S.G. § 4B1.1, which the district court applied upon finding that Nunez’s

12   present, and two prior, convictions were all for “crime[s] of violence,” as defined

13   in the Guideline’s residual clause, id. § 4B1.2. Nunez argues that this residual

14   clause is unconstitutionally vague, and thus, his sentencing violates due process.

15   In support, Nunez relies on Johnson v. United States, 135 S. Ct. 2551 (2015), which

16   struck down an identically worded provision of the Armed Career Criminal Act

17   as unconstitutionally vague. The issue presented to us on appeal is whether the

18   right Nunez asserts was recognized in Johnson, rendering his motion timely
                                              3
 1   pursuant to 28 U.S.C. § 2255(f)(3), or whether the right he asserts has yet to be

 2   recognized, rendering his motion untimely. We hold that Johnson did not itself

 3   render the residual clause of the pre-Booker Career Offender Guideline

 4   unconstitutionally vague and, thus, did not recognize the right Nunez asserts.

 5   We therefore affirm the district court’s denial of Nunez’s Section 2255 motion as

 6   untimely.

 7                                    BACKGROUND

 8   I.    Nunez’s Conviction

 9         On October 5, 1999, Miguel Nunez pled guilty to Hobbs Act robbery and

10   conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a).

11   Nunez and two co-conspirators had broken into the apartment of a male and

12   female couple who ran a florist business and stole between $12,000 and $14,000

13   in cash, along with other personal items of value. During the course of the

14   robbery, Nunez and one of his co-conspirators tied both victims up with rope

15   and raped the female proprietor of the florist business.

16         At the time of Nunez’s sentencing, a defendant was considered a career

17   offender under the Sentencing Guidelines if,



                                              4
 1         (1) the defendant was at least eighteen years old at the time the
 2         defendant committed the instant offense of conviction, (2) the instant
 3         offense of conviction is a felony that is either a crime of violence or a
 4         controlled substance offense, and (3) the defendant has at least two
 5         prior felony convictions of either a crime of violence or a controlled
 6         substance offense.
 7
 8   U.S.S.G. § 4B1.1 (1998). Nunez stipulated that he was eighteen years old at the

 9   time of his Hobbs Act offenses, he had two prior felony convictions for New

10   York first-degree robbery, and Hobbs Act robbery was a crime of violence.

11         The Career Offender Guideline defined a crime of violence as “any offense

12   under federal or state law, punishable by imprisonment for a term exceeding one

13   year that—”

14         (1) has as an element the use, attempted use, or threatened use of physical
15         force against the person of another, or
16         (2) is burglary of a dwelling, arson, or extortion, involves the use of
17         explosives, or otherwise involves conduct that presents a serious potential risk of
18         physical injury to another.”
19
20   U.S.S.G. § 4B1.2(a) (1998) (emphasis added). The first definition is known as the

21   elements clause. The second definition is known as the enumerated offenses

22   clause. The italicized part of the second definition is known as the residual

23   clause. The district court concluded that Nunez’s Hobbs Act robbery, and two




                                                5
 1   prior felony convictions, were “crimes of violence” under the residual clause.

 2   Thus, Nunez constituted a career offender.

 3         As a career offender, Nunez’s Guidelines range was 151 to 188 months of

 4   imprisonment, as opposed to 121 to 151 months. The district court departed

 5   upwards from even this higher Guidelines range under provisions of the

 6   Guidelines that permit doing so when a defendant has caused extreme

 7   psychological injury in the victim and the conduct was extreme. Accordingly, the

 8   district court sentenced Nunez to 240 months for Hobbs Act robbery and 120

 9   months for Hobbs Act conspiracy, for a total of 360 months of imprisonment. On

10   appeal, this court upheld the sentence. United States v. Nunez, 8 F. App’x 81 (2d

11   Cir. 2001).

12   II.   Subsequent Supreme Court Decisions

13         Some years later, the Supreme Court decided United States v. Booker, 543

14   U.S. 220 (2005), which held that a mandatory application of the Sentencing

15   Guidelines was unconstitutional, see id. at 245−46, and to avoid that result,

16   construed the Guidelines as advisory, see id. at 245, 259.

17         More recently, the Supreme Court decided Johnson v. United States, 135 S.

18   Ct. 2551 (2015). The Court in Johnson held that “imposing an increased sentence
                                               6
 1   under the residual clause of the Armed Career Criminal Act”which contained

 2   a residual clause identical to that in the crime of violence definition of the Career

 3   Offender Guideline“violate[d] the Constitution’s guarantee of due process”

 4   because the clause was unconstitutionally vague. Id. at 2563. Using the rationale

 5   in Johnson, the Court subsequently struck down similarly worded residual

 6   clauses in the crime of violence definitions of the Immigration and Nationality

 7   Act, see Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and in 18 U.S.C. § 924(c)(3)(B),

 8   see United States v. Davis, 139 S. Ct. 2319 (2019).

 9         The Supreme Court also dealt with a vagueness challenge to the residual

10   clause of the Career Offender Guideline as applied after Booker in Beckles v.

11   United States, 137 S. Ct. 886 (2017). In Beckles, the defendant argued that the

12   Guideline’s residual clause was void for vagueness, making his sentencing

13   pursuant to the clause unconstitutional. Id. at 890-91. The Supreme Court rejected

14   the argument, refusing to extend Johnson’s reasoning to the post-Booker

15   Guidelines. Id. at 891−92. The Court explained that unlike the ACCA’s residual

16   clause, which mandated certain, higher sentence ranges, “the advisory

17   Guidelines do not fix the permissible range of sentences.” Id. at 892. The advisory

18   Guidelines were for this reason not subject to a vagueness challenge. Id. In her
                                                 7
 1   concurring opinion, Justice Sotomayor noted that “[t]he Court’s adherence to the

 2   formalistic distinction between mandatory and advisory rules at least leaves

 3   open the question whether defendants sentenced to terms of imprisonment

 4   before our decision in United States v. Booker . . . may mount vagueness attacks on

 5   their sentences.” Id. at 903 n.4 (Sotomayor, J., concurring in the judgment)

 6   (internal quotation marks and citation omitted).

 7   III.   Nunez’s Section 2255 Motion

 8          On June 21, 2016, eighteen years after his federal conviction, but less than

 9   one year after Johnson was decided, Nunez filed a motion under 28 U.S.C. § 2255

10   to vacate his 30-year sentence. He argued that Johnson renders the residual clause

11   of the pre-Booker Career Offender Guideline unconstitutionally vague, so he

12   should not have been sentenced as a career offender. See Nunez v. United States,

13   No. 16-cv-4742, 2018 WL 2371714, at *1-2 (S.D.N.Y. May 24, 2018). The district

14   court decided the motion was untimely because “the Supreme Court has not

15   itself extended its holding in Johnson to the pre-Booker guidelines.” Id. at *2.

16   Nunez timely appealed.

17




                                                8
 1                                      DISCUSSION

 2         On appeal from the denial of a Section 2255 motion, we review a district

 3   court’s conclusions of law de novo. Sapia v. United States, 433 F.3d 212, 216 (2d

 4   Cir. 2005).

 5         Motions under Section 2255 are subject to a one-year statute of limitations

 6   that runs from several possible dates, only one of which is relevant here: “[T]he

 7   date on which the right asserted was initially recognized by the Supreme Court,

 8   if that right has been newly recognized by the Supreme Court and made

 9   retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3).

10         Nunez claims that his motion is timely under Section 2255(f)(3) because he

11   filed it less than one year after the Supreme Court in Johnson first recognized the

12   right he invokes. Nunez argues that his Section 2255 motion challenging a career-

13   offender sentence imposed under the mandatory Guidelines asserts the same due

14   process right recognized in Johnson. He argues that, like the ACCA’s residual

15   clause, the residual clause of the mandatory Career Offender Guideline “fixed”

16   his sentencing range and was subject to the same concerns articulated in Johnson.

17   Because the ACCA and residual clause of the Career Offender Guideline are

18   identically worded and interpreted, Nunez claims the holding in Johnson applies
                                               9
 1   equally to the residual clause in the Guideline and, thus, compels the conclusion

 2   that Johnson recognized the right he asserts.

 3         We, however, conclude that Johnson did not itself render the residual

 4   clause of the mandatory Career Offender Guideline vague, as required for

 5   Section 2255 purposes. Our decision aligns with that of the majority of circuits to

 6   have addressed the issue. United States v. London, 937 F.3d 502 (5th Cir. 2019);

 7   United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018); Russo v. United States, 902

 8   F.3d 880 (8th Cir. 2018); United States v. Green, 898 F.3d 315 (3d Cir. 2018); United

 9   States v. Greer, 881 F.3d 1241 (10th Cir. 2018); United States v. Brown, 868 F.3d 297

10   (4th Cir. 2017); Raybon v. United States, 867 F.3d 625 (6th Cir. 2017).

11         In coming to the same conclusion, we are mindful that the Supreme Court

12   has admonished lower courts “against framing [its] precedents at . . . a high level

13   of generality” in reviewing claims under the Antiterrorism and Effective Death

14   Penalty Act of 1996 (“AEDPA”), of which Section 2255 is a component. See Lopez

15   v. Smith, 574 U.S. 1, 4, 6 (2014) (internal quotation marks and citation omitted);

16   Nevada v. Jackson, 569 U.S. 505, 512 (2013). Instead, the Court has required

17   identification of precedent related to “the specific question presented by th[e]

18   case.” Lopez, 574 U.S. at 6.
                                               10
 1         Johnson by its own terms addresses only the ACCA. The Court articulated

 2   its holding in that case specifically with regard to the ACCA: “We hold that

 3   imposing an increased sentence under the residual clause of the Armed Career

 4   Criminal Act violates the Constitution’s guarantee of due process.” 135 S. Ct. at

 5   2563 (emphasis added). In addition, the Court cited exclusively to cases that dealt

 6   with the residual clause of the ACCA. See id. at 2558-60 (citing Sykes v. United

 7   States, 564 U.S. 1 (2011); Chambers v. United States, 555 U.S. 122 (2009); James v.

 8   United States, 550 U.S. 192 (2007)). Furthermore, in Welch v. United States, 136 S.

 9   Ct. 1257 (2016), which applied Johnson retroactively, the Court referred only to

10   the effect of its holding on the ACCA. Id. at 1265 (“By striking down the residual

11   clause as void for vagueness, Johnson changed the substantive reach of the Armed

12   Career Criminal Act . . . .” (emphasis added)). These factors strongly signal that

13   the rule established in Johnson was specific to the residual clause of the ACCA.

14         Our conclusion that the Court was not speaking to contexts beyond the

15   ACCA in Johnson is reinforced by the fact that the Court has considered

16   challenges to identical residual clauses in other statutes piecemeal. See Session v.

17   Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139 S. Ct. 2319 (2019). Nor

18   were the applications in these cases necessarily straightforward. As the Ninth
                                               11
 1   Circuit observed, “[i]t is not always obvious whether and how the Supreme

 2   Court will extend its holdings to different contexts,” and in Dimaya, “it took a

 3   lengthy discussion to reach [the] conclusion, and four justices disagreed.” United

 4   States v. Blackstone, 903 F.3d at 1026. These decisions further undermine Nunez’s

 5   contention that Johnson in and of itself dictates the result of a vagueness

 6   challenge to the residual clause in the pre-Booker Career Offender Guideline.

 7         Nunez relies on Beckles v. United States, 137 S. Ct. 886 (2017), a case holding

 8   that the post-Booker advisory Guidelines are not subject to vagueness challenges,

 9   to argue that the pre-Booker mandatory Guidelines are so subject. This, however, is

10   not a conclusion reached in Johnson. Indeed, Justice Sotomayor’s concurrence in

11   Beckles explained that the question remains open. See id. at 903 n.4 (Sotomayor, J.,

12   concurring in the judgment) (stating that the Court “leaves open the question

13   whether defendants sentenced to terms of imprisonment before our decision in

14   United States v. Booker—that is, during the period in which the Guidelines did fix

15   the permissible range of sentences—may mount vagueness attacks on their

16   sentences” (internal quotation marks and citations omitted)). In sum, while we

17   agree that Beckles does not foreclose a vagueness challenge to the mandatory



                                              12
 1   Sentencing Guidelines, we cannot agree with Nunez that Johnson articulated the

 2   right he seeks to assert.

 3         Nunez attempts to circumvent this inevitable conclusion by arguing that

 4   any discussion of how the Supreme Court defines the right in Johnson is not

 5   relevant to the timeliness of his petition. He relies on Dodd v. United States, 545

 6   U.S. 353 (2005) and the Seventh Circuit’s decision in Cross v. United States, 892

 7   F.3d 288 (7th Cir. 2018). We are not persuaded.

 8         Dodd is inapplicable here. That case established that a petitioner is required

 9   to bring a claim within one year after the Supreme Court announces a new rule—

10   not within one year after the Supreme Court announces the rule is retroactive.

11   545 U.S. at 358-59. In deciding so, the Supreme Court noted that the first clause in

12   Section 2255(f)(3), which states “the date on which the right asserted was initially

13   recognized by the Supreme Court,” is “the operative date.” Id. at 358. The second

14   clause, which states “if that right has been newly recognized by the Supreme

15   Court and made retroactively applicable to cases on collateral review,” merely

16   imposes a condition on the applicability of the subsection. Id. Nunez reads Dodd

17   as requiring us to focus on the first clause of Section 2255(f)(3) regardless of

18   whether the petitioner has framed the right asserted in a manner consistent with
                                               13
 1   how the Supreme Court articulated it. Dodd cannot, however, be stretched to

 2   accommodate this interpretation. No aspect of Dodd supports Nunez’s

 3   interpretation that a defendant moving for Section 2255 relief may assert any

 4   right suggested by the Supreme Court within the past year for his motion to

 5   qualify as timely. Dodd simply stands for the proposition that the one-year

 6   statute of limitations period begins to run following the Supreme Court’s

 7   recognition of a right, as opposed to the Court’s retroactive application of the

 8   right. Nunez’s invocation of Dodd is unavailing.

 9         Nor are we persuaded by Cross v. United States, 892 F.3d 288 (7th Cir. 2018),

10   the only Circuit decision holding that a Section 2255 motion challenging the

11   residual clause of the pre-Booker Career Offender Guidelines is timely if filed

12   within a year of Johnson. Cross, 892 F.3d at 293-94. In coming to this conclusion,

13   the Seventh Circuit reasoned that the government’s argument that Johnson did

14   not recognize the right asserted because the Supreme Court has not extended the

15   logic of Johnson to the pre-Booker mandatory guidelines “suffers from a

16   fundamental flaw. It improperly reads a merits analysis into the limitations

17   period.” Id. at 293. But this conclusion “effectively reads ‘recognized’ out of 28

18   U.S.C. § 2255(f)(3) by not engaging in an inquiry into whether the right asserted
                                              14
 1   by the petitioner is the same right that was recognized by the Supreme Court.”

 2   United States v. Green, 898 F.3d 315, 322 (3d Cir. 2018). For this reason, we decline

 3   to adopt the Seventh Circuit’s reasoning in Cross.

 4         Rather, we join the majority of our sister circuits and hold that Section

 5   2255(f)(3) requires courts to consider whether the right a petitioner asserts has

 6   been recognized by the Supreme Court as part and parcel of deciding whether a

 7   petition is timely. As such, though Nunez filed his petition within one year after

 8   Johnson, Nunez’s petition may only be considered timely if the right he asserts

 9   was in fact recognized in Johnson. While Nunez asserts that the reasoning of

10   Johnson can apply to the pre-Booker Guidelines, Johnson did not itself hold the

11   residual clause of the pre-Booker Career Offender Guideline unconstitutionally

12   vague. Johnson cannot be read so broadly, particularly in light of Supreme Court

13   cautions against expansively construing its precedents in the AEDPA context,

14   and Justice Sotomayor’s concurring opinion in Beckles indicating that the

15   question raised by Nunez remains open in the Supreme Court. Because Johnson

16   has not recognized the right Nunez asserts, his Section 2255 motion is untimely.

17


18

                                              15
1                                    CONCLUSION

2         We hold that Johnson v. United States, 135 S. Ct. 2551 (2015) did not

3   recognize a constitutional right not to be sentenced under the residual clause of

4   the pre-Booker Career Offender Guideline. The order and judgment of the district

5   court is therefore AFFIRMED.




                                            16
 1   POOLER, Circuit Judge:
 2
 3         I agree with the legal analysis and conclusion of the majority opinion, but I

 4   write separately to emphasize the injustice our decision today creates.

 5         The Constitution guarantees that “[n]o person shall . . . be deprived of life,

 6   liberty, or property, without due process of law.” U.S. Const. amend. V. A

 7   statute, whether defining elements of crimes or fixing sentences, violates this

 8   guarantee when it is “so vague that it fails to give ordinary people fair notice of

 9   the conduct it punishes, or so standardless that it invites arbitrary enforcement.”

10   Johnson v. United States, 135 S. Ct. 2551, 2556 (2019). “The prohibition of

11   vagueness in criminal statutes is a well-recognized requirement, consonant alike

12   with ordinary notions of fair play and the settled rules of law, and a statute that

13   flouts it violates the first essential of due process.” Id. (internal quotation marks

14   and citations omitted).

15         As the majority explains, Johnson struck down an identically worded

16   residual clause in the Armed Career Criminal Act as unconstitutionally vague. It

17   is clear, in my view, that “if a sequence of words that increases a person’s time in

18   prison is unconstitutionally vague in one legally binding provision, that same

19   sequence is unconstitutionally vague if it serves the same purpose in another
 1   legally binding provision.” Brown v. United States, 139 S. Ct. 14, 14 (2019)

 2   (Sotomayor, J., dissenting from denial of certiorari). But due to the precedent laid

 3   out in the majority opinion, we are constrained in our ability to allow Nunez’s

 4   seemingly meritorious claim to move forward.

 5         Section 2255 petitioners are the only class of defendants who may raise the

 6   question of whether the residual clause in the pre-Booker Career Offender

 7   Guideline is unconstitutionally vague. As such, our decision “denies petitioners,

 8   and perhaps more than 1,000 like them, a chance to challenge the

 9   constitutionality of their sentences.” Brown, 139 S. Ct. at 14 (Sotomayor, J.,

10   dissenting from denial of certiorari). Therein lies the injustice.

11         I agree with Judge Raggi’s observation that Nunez’s crime was a

12   “heinous” one. But the Constitution’s protection against vague statutes applies

13   no less to a defendant convicted of severe conduct. If Nunez’s sentencing violates

14   due process, he should be afforded the opportunity to challenge it. Unless and

15   until the Supreme Court addresses whether Johnson applies to the mandatory

16   Guidelines, however, petitioners like Nunez will be left with no procedural

17   mechanism by which to raise, and seek redress for, constitutional grievances tied

18   to their sentencings.



                                                2
18-1803-pr
Nunez v. United States

REENA RAGGI, Circuit Judge, concurring:

       I join my colleagues in today unanimously affirming the denial
of petitioner Miguel Nunez’s 28 U.S.C. § 2255 challenge to his 30-year
prison sentence for conspiratorial and substantive Hobbs Act robbery
as untimely. I write separately only to state that I do not share my
concurring colleague’s concern that this decision creates any
“injustice” for Nunez by denying him the opportunity to pursue a
vagueness challenge to the pre-Booker use of a residual clause
definition of “crime of violence” to identify him as a Career Offender
with a Guidelines range of 151–188 months rather than a non-
Offender range of 121–151 months. That is because Nunez’s sentence
was not dictated by, or even anchored to, his Guidelines range. As
the record makes plain, the district court sentenced Nunez to 30 years’
imprisonmentalmost double the high end of his Guidelines
rangebased on heinous conduct committed during the robbery that
was not adequately factored into his Guidelines calculation.
Specifically, Nunez repeatedly raped and sexually assaulted a bound
robbery victim. The district court’s discussion of these circumstances
leaves me with no doubt that, even if Nunez could show that
vagueness in the residual clause did not permit him to be
denominated a Career Offender under the Guidelines, that would
make no difference to the district court’s decision to sentence him to
30 years.

                                  I.

       At the outset, let me note that I think it far from clear, even after
Johnson v. United States, 135 S. Ct. 2551 (2015), that Nunez has a
meritorious vagueness challenge to the residual clause of the Career
Offender Guideline as applied prior to United States v. Booker, 543 U.S.
220 (2005). See U.S.S.G. §§ 4B1.1, 4B1.2(a)(2) (1998). The Supreme

                                       1
18-1803-pr
Nunez v. United States

Court has ruled that the Guidelines, as advisorily applied after Booker,
are not subject to vagueness challenges. See Beckles v. United States,
137 S. Ct. 886 (2017). Our court has not yet decided whether any
different conclusion applies to the presumptively mandatory pre-
Booker Guidelines. The Eleventh Circuit, however, has held that it
does not. See In re Griffin, 823 F.3d 1350, 1354−55 (11th Cir. 2016). That
court observed that a holding requiring the Guidelines to satisfy due
process     vagueness      standards       “differs   fundamentally         and
qualitatively from a holding that . . . the ACCA sentencing statute [at
issue in Johnson]that increases the statutory penalty for the
underlying new crimeis substantively vague.”                Id. at 1356.    It
explained that, as applied to ACCA’s residual clause, Johnson’s
vagueness determination “requires the district court to reduce the
enhanced sentence to at least the unenhanced applicable statutory
maximum.” Id. at 1355.

       In stark contrast, whether the Guidelines are mandatory
       or advisory, the district court, even without the
       invalidated 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.

Id.
       In Cross v. United States, 892 F.3d 288 (7th Cir. 2018), the Seventh
Circuit took a different view, but not necessarily in a way that helps
Nunez. 1 That court read Johnson to hold that “a person has a right not


1
  We have expressly declined to follow Cross’s reasoning with respect to the
timeliness of a Johnson-based vagueness challenge to the pre-Booker Guidelines.
See Panel Op. at 14−15.


                                       2
18-1803-pr
Nunez v. United States

to have his sentence dictated by the unconstitutionally vague language
of the mandatory residual clause.” Id. at 294 (emphasis in original).
Declining to limit that right to sentencing statutes such as ACCA, the
court concluded that the Cross defendants were prejudiced by “an
extended prison term . . . imposed on both men as a result of their
designation as career offenders” under the pre-Booker Guidelines. Id.
at 295.     The emphasis Cross placed on the word “dictated” is
significant. The defendants in that case were, in fact, sentenced
within increased ranges dictated by their Career Offender
designation. But the court had no occasion in Cross to consider how,
if at all, a defendant would be prejudiced by a pre-Booker Career
Offender designation thatas in Nunez’s casedid not “dictate,” or
even anchor, the sentence actually imposed. 2

                                      II.

       Nunez cannot here demonstrate prejudice—much less
injustice—because his 30-year prison sentence was not dictated by the
Career Offender Guideline’s residual clause definition of a violent
crime. The record convincingly shows that, although Judge Kaplan
relied on the residual clause to denominate Nunez a Career Offender

2
  Like the Cross defendants, Nunez failed to raise a vagueness challenge to the
Career Offender Guideline’s residual clause either in the district court or on appeal
and, thus, must show cause and prejudice, or actual innocence, to pursue the
argument on a § 2255 motion. See Bousley v. United States, 523 U.S. 614, 621−22
(1998); Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012). Even such a
showing, however, might not be enough to allow Nunez to pursue his vagueness
claim if a court were to find him to have waived the argument by stipulating in
his plea agreement that his Hobbs Act robbery crimes of conviction qualified as
violent felonies under the Career Offender Guideline. See United States v. Spruill,
808 F.3d 585, 597 (2d Cir. 2015) (explaining various circumstances that can
manifest waiver, including where defendant “agrees to a course of action that he
later claims was error”). For purposes of this concurrence, however, I do not
assume waiver.


                                            3
18-1803-pr
Nunez v. United States

in calculating his Guideline range at 151–188 months, the judge did
not feel compelled to sentence Nunez within that range rather than
the lesser 121–151 month non-Offender range. Rather, Judge Kaplan
decided that, in Nunez’s case, justice demanded a 30-year sentence,
far aboveindeed, almost doubleboth these ranges.                          In so
concluding, Judge Kaplan made no reference to Nunez’s Career
Offender designation or to the other convictions supporting that
designation. 3 Rather, he based the departure on Nunez’s heinous
conduct in the course of the crimes of conviction, conduct not
adequately accounted for by the Guidelines. This included Nunez
repeatedly raping and sexually assaulting a bound female victim of
the Hobbs Act robbery who, as a consequence, suffered serious and
years-long psychological harm.

       This court did not need to discuss this conduct in any detail to
hold Nunez’s § 2255 motion untimely. But such a discussion cannot
be avoided to explain why our decision today does Nunez no
injustice.

       Late on the night of February 14, 1994, Nunez and two
confederates (one male, one female) lay in wait for a couple to return
to their Bronx apartment with the cash proceeds of their florist
business.     When the couple reached their door, Nunez’s male
confederate grabbed the female victim from behind, placed his hand
over her mouth, put a gun to her neck, and forced her into the
apartment. Meanwhile, Nunez put a gun to the male victim’s head

3
 To qualify for Career Offender designation, not only must a defendant’s instant
offense of conviction be a felony crime of violence or a felony controlled substance
offense, but also, the defendant must have two prior felony convictions for either
a crime of violence or a controlled substance offense. Nunez concedes that his two
prior New York first-degree robbery convictions—one committed at gunpoint, the
other with a knife—are for violent crimes. See United States v. Ojeda, 951 F.3d 66,
72 (2d Cir. 2020).
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and forced him inside. In the apartment, the male victim’s hands
were tied behind his backtied so tightly as later to require surgery
for him to regain their full use. Meanwhile, the female victim was
taken into a bedroom where she was placed face down on a bed and
bound hand and foot by Nunez’s male confederate, who then threw
pillows and blankets over her head, threatening to kill her if she tried
to look at his face.

       With their victims thus restrained, the robbers proceeded to
ransack the apartment, stealing cash, credit cards, beepers, liquor, and
jewelry, including the female victim’s wedding ring.

       For the female victim, however, the terror was by no means
over. Nunez entered the bedroom where she was restrained, pulled
down her pants and proceeded, on four separate occasions, to molest
her sexually by digitally penetrating her vagina.

       The male confederate also entered the bedroom and threatened
to burn the woman’s business down and to injure her sonwhom he
identified by name and businessif she reported the robbery to the
police.

       Then, with all three robbers in the bedroom, Nunez twice raped
the terrified female victim, first vaginally and then anally. When he
finished, Nunez’s male confederate took his turn, also raping the
woman both vaginally and anally. These events reduced the three
robbers to laughter.

       At sentencing, the district court took a much steelier view of
things. Judge Kaplan described Nunez’s conduct during the robbery
as “barbaric,” App. 35, “exceptionally heinous, cruel, brutal and
degrading,” id. at 34, and “close to torture, gratuitous infliction of
injury and the prolonging of pain and humiliation,” id. He concluded

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that a significant upward departure from Nunez’s Sentencing
Guidelines range was warranted by U.S.S.G. §§ 5K2.0 (cases outside
the “heartland”), 5K2.3 (cases of extreme psychological injury to a
victim), and 5K2.8 (cases of “unusually heinous, cruel, brutal, or
degrading” conduct toward the victim). Indeed, the district court
emphasized that the extent of its departure did not depend on the
cumulative effect of these Guidelines. He would depart to the same
significant extent under any one of these Guidelines. In so stating, the
district court observed that characterizing Nunez’s actions as “out of
the heartland of robbery cases is such a vast understatement as to be
absurd.” Id. at 35. Referencing the victim’s prolonged psychological
injury, detailed in the Pre-Sentence Report and, therefore, requiring
no elaboration, the district court stated that it could not “readily
imagine a case that more readily fits into 5K2.8.” Id. (“Imagine what
went through this victim’s mind, lying there going through what this
man subjected her to, over and over again”).

       On this record, which so convincingly supports the district
court’s upward departure to a 30-year sentence, there is absolutely no
reason to think that if vagueness in the residual clause did not permit
Nunez to be identified as a Career Offender with a Guidelines range
of 151–188 months, the district court would have sentenced him
within the non-offender Guidelines range of 121–151 months, or even
to any sentence less than 30 years. Thus, insofar as that is Nunez’s
argument, he cannot show prejudice, much less injustice. 4


4
  Nunez’s inability to show prejudice makes it unnecessary for me to address
whether he shows cause. Insofar as Nunez further argues that, regardless of
prejudice, vagueness in the residual clause would mean he is “actually innocent”
of being a Career Offender, I am not convinced. The cases Nunez cites that apply
the actual innocence standard to a defaulted Guidelines enhancement challenge—
whether before or after Booker—all involve defendants claiming that they did not,
in fact, commit the enhancing predicate crimes. This comports with precedent
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Nunez v. United States

        To the extent the district court did anchor its 30-year sentence
to a Guidelines range, it was not to the challenged 151–188 month
range for Hobbs Act robbery, but rather to the 292–365 month range
that would apply to Aggravated Sexual Abuse, 18 U.S.C. § 2241(a)a
crime comparable to the rapes and sexual assaults aggravating
Nunez’s Hobbs Act robbery and informing the district court’s
departure decision. Nunez does not challenge the comparison, either
generally or specifically for employing a Career Offender
enhancement in calculating the resulting 292–365 month range. In
fact, any such Career Offender challenge would be to no avail because
force is an element of § 2241(a) Aggravated Sexual Abuse, making
that comparator offense a crime of violence under U.S.S.G. §
4B1.2(a)(1), without regard to the residual clause definition of
U.S.S.G. § 4B1.2(a)(2). Moreover, the district court did not reference
the Aggravated Sexual Abuse range as somehow dictating its 30-year
sentence. Rather, it drew the comparison simply to demonstrate the
reasonableness of its decision to impose a sentence nearly twice the
high end of the 151–188 month range applicable to Nunez’s robbery
crimes of conviction.

        In sum, whatever vagueness challenge might be made to
U.S.S.G. § 4B1.2(a)(2)’s residual clause definition of a crime of

which makes clear that “actual innocence” refers to factual, not legal, innocence.
See Bousley v. United States, 523 U.S. at 623; Poindexter v. Nash, 333 F.3d 372, 381 (2d
Cir. 2003) (actual innocence “normally means simply that the defendant did not
commit the crime”). Thus, I doubt that Nunez can use legal principles, such as
facial vagueness or categorical construction, to show that he is actually innocent
of having committed a “violent crime” of conviction when the facts of his case
demonstrate violence beyond any doubt. See Poindexter v. Nash, 333 F.3d at 382
(explaining actual innocence exception does not apply where petitioner “merely
makes [a] legal argument”); Darby v. United States, 508 F. App’x 69, 71 (2d Cir. 2013)
(explaining that defendant’s “essentially legal argument that he is innocent of the
[career offender] sentencing enhancement because the district court misclassified
his predicate offenses . . . is insufficient to trigger the actual innocence exception”).
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Nunez v. United States

violence, the panel’s rejection of Nunez’s challenge as untimely does
him no injustice because the record plainly shows that his 30-year
sentence was not dictated by that Guideline. Rather, the sentence
represented a significant, but entirely justified, departure from both
the challenged and urged Guideline ranges based on Nunez and his
confederate repeatedly raping and sexually assaulting their bound
robbery victim.

                                 III.

       There is a final reason why I think the panel decision today does
Nunez no injustice: the record demonstrates that even a successful
vagueness challenge would not secure him a reduced sentence. As
already shown, the district court’s upward departure to a 30-year
sentence was not anchored to Nunez’s 151–188 month Career
Offender range but, rather, to the fact that his cruel and brutal conduct
during the robbery equated to Aggravated Sexual Abuse. There is no
reason to think the district court would take a different view of this
conduct or impose a lesser sentence if the Guideline’s residual clause
definition of a violent crime were declared void for vagueness.

       That conclusion is only reinforced by the fact that, on remand,
Nunez could not be sentenced under the presumptively mandatory
Guidelines regime that the Supreme Court declared unconstitutional
in Booker. Rather, any resentencing would have to be under advisory
Guidelines, which afford the district court morenot lessdiscretion
to impose sentences outside the Guidelines. See In re Griffin, 823 F.3d
at 1355. Moreover, that discretion would allow the district court to
consider whether Nunez’s Hobbs Act robbery crimes, even if not
categorically violent under the elements clause of the Career Offender
Guideline, were nevertheless actually so violent as to inform statutory
sentencing factors and thereby warrant a non-Guidelines sentence.

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Nunez v. United States

See 18 U.S.C. § 3553(a)(2)(A) (referencing seriousness of offense and
need to provide just punishment for that offense); id. § 3553(a)(2)(B)
(referencing need to afford adequate deterrence for defendant’s
criminal conduct); id. § 3553(a)(2)(C) (referencing need to protect
public from further crimes of defendant); see also id. § 3661
(prohibiting any limitation on information concerning “background,
character, and conduct” of defendant that district court may consider
in imposing appropriate sentence). 5

                                      ***

       To conclude, the panel’s rejection of Nunez’s vagueness
challenge as untimely does him no injustice for three reasons. First, it
is not evident that a vagueness challenge can be made to the pre-
Booker Guidelines. Second, even giving Nunez the benefit of the
doubt on that point, he cannot show prejudice because his challenged
151–188 month Guidelines range did not dictate the 30-year sentence
imposed by the district court. Rather, the district court based that
significantly higher sentence on conductrepeated rapes and sexual


5
  Because Hobbs Act robbery can be committed by using force against persons or
property, it reaches more broadly than the Career Offender Guideline’s elements
clause, which is limited to offenses using force against persons. Compare 18 U.S.C.
§ 1951(a), with U.S.S.G. § 4B1.2(a)(1); cf. United States v. Hill, 890 F.3d 51 (2018)
(recognizing Hobbs Act robbery as crime of violence under ACCA, whose element
clause references force against person or property). It was for this reason that,
despite the actual violence of Nunez’s Hobbs Act robbery, the district court could
not find it a categorical crime of violence under § 4B1.2(a)(1) and, instead, relied
on § 4B1.2(a)(2)’s residual clause. Booker does not change the categorical
application of the Career Offender Guideline, but it does mean that, in exercising
their sentencing discretion pursuant to 18 U.S.C. § 3553(a), district courts can
consider whether a defendant committed a crime that is not categorically violent
in a particularly violent way. Although definitions of violent crime continue to
apply categorically after Booker, district courts are free to consider the actual
violence of a defendant’s criminal conduct in deciding whether to impose a within-
Guidelines sentence.
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Nunez v. United States

assaults of a robbery victimthat was not adequately factored into
the challenged range, and that was more akin to Aggravated Sexual
Abuse, a crime that is categorically violent based on its elements,
without reference to the challenged residual clause. Third, because
the conduct supporting the district court’s departure decision would
not be mitigated by a successful vagueness challenge to the
Guideline’s residual clause, and because, on any remand, the district
court would have more, not less, discretion to impose a non-
Guidelines sentence, I think it clear that remand would not secure
Nunez any lesser sentence.

       Accordingly, I join in the panel decision to affirm without any
reservation about doing Nunez an injustice.




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