 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 11, 2018          Decided December 28, 2018

                        No. 17-3005

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                       ERIC A. HICKS,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:93-cr-00097-2)


    Paul S. Rosenzweig, appointed by the court, argued the
cause and filed the briefs for appellant.

    Elizabeth Gabriel, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman and John P. Mannarino,
Assistant U.S. Attorneys.

   Before: TATEL and MILLETT, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

    MILLETT, Circuit Judge: In the mid-1990s, Eric Hicks was
sentenced to a term of life imprisonment after being convicted
on multiple narcotics and racketeering charges. Two decades
                               2
later, Hicks sought post-conviction relief on the ground that a
provision of the United States Sentencing Guidelines raised at
his sentencing is unconstitutionally void for vagueness, based
on the Supreme Court’s intervening decision in Johnson v.
United States, 135 S. Ct. 2551, 2557 (2015). The district court
denied Hicks’ motion on the merits. We affirm on the
alternative ground that Hicks procedurally defaulted his claim
and has failed to demonstrate the prejudice necessary to obtain
the post-conviction relief he seeks.

                               I

                               A

     Eric Hicks was a member of a Washington, D.C. gang
known as the First Street Crew. In 1994, a jury found Hicks
guilty of conspiracy to distribute and possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 846; conspiracy
to participate in a racketeer influenced corrupt organization, in
violation of 18 U.S.C. § 1962(d); and three counts of
distribution of cocaine base, in violation of 21 U.S.C. § 841.

     At the time of Hicks’ sentencing, federal law mandated
that the district court impose a sentence within the federal
Sentencing Guidelines’ framework. See Stinson v. United
States, 508 U.S. 36, 42 (1993). It was not until eleven years
later that the Supreme Court declared the mandatory operation
of the federal Sentencing Guidelines to be unconstitutional,
ruling that they could operate only as advisory guidance for
sentencing courts. See United States v. Booker, 543 U.S. 220,
226–227, 245 (2005); accord Gall v. United States, 552 U.S.
38, 46 (2007).

    Hicks’ base offense level under those mandatory
Sentencing Guidelines was 42 because of the large amount of
                                3
cocaine base attributable to the conspiracy. That offense level
was then increased by four because Hicks was found to have
been a “leader” of the First Street Crew, and by two more levels
because he had possessed a firearm on several occasions in the
course of the offenses. Two more points were added for Hicks’
obstruction of justice, raising Hicks’ offense level to 50.
Finally, the district court applied a two-level enhancement for
“Reckless Endangerment During Flight” under Section 3C1.2.
See U.S. Sentencing Guidelines Manual § 3C1.2 (U.S.
Sentencing Comm’n 1993). Specifically, because the district
court found that Hicks had “caused [a] substantial risk of death
or bodily injury in the course of fleeing from law enforcement
officers,” his total offense level rose from 50 to 52. J.A. 40.

     Under the Sentencing Guidelines, however, the maximum
offense level that could be used in calculating a sentence was
43, which specified a term of life imprisonment. U.S.
Sentencing Guidelines Manual ch. 5, pt. A, cmt. n.2 (U.S.
Sentencing Comm’n 1993). That meant that, in imposing
sentence, the district court calculated Hicks’ total offense level
as 43, and imposed the life sentence dictated by the Guidelines.

     Hicks did not object to the district court’s invocation of the
Section 3C1.2 enhancement as unconstitutionally vague either
at his sentencing or on his direct appeal. See United States v.
White, 116 F.3d 903 (D.C. Cir.) (per curiam) (affirming Hicks’
judgment of conviction and sentence), cert. denied sub nom.
Hicks v. United States, 522 U.S. 960 (1997).

     In the following decades, Hicks repeatedly sought
collateral relief from his sentence, without success. In none of
those cases did Hicks challenge the constitutionality of
Sentencing Guidelines Section 3C1.2. See Order, United
States v. Hicks, No. 18-3020 (D.C. Cir. Sept. 19, 2018) (per
curiam); Order, United States v. Hicks, No. 05-3167 (D.C. Cir.
                               4
Feb. 24, 2006) (per curiam); United States v. Hicks, 283 F.3d
380 (D.C. Cir. 2002).

                               B

     In 2015, the Supreme Court held that the residual clause of
the Armed Career Criminal Act’s definition of a violent felony,
18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally void for
vagueness, in violation of the Fifth Amendment’s Due Process
Clause, Johnson, 135 S. Ct. at 2557. The residual clause
provided enhanced punishment for a crime that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The
next year, the Supreme Court held that Johnson is a substantive
rule of constitutional law that applies retroactively to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257,
1265 (2016).

     In the wake of Johnson and Welch, Hicks requested and
received from this Court permission to file a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
See Order, In re Hicks, No. 16-3079 (D.C. Cir. Sept. 17, 2016)
(per curiam). He argued that Johnson’s holding should govern
the textually similar language in Sentencing Guidelines Section
3C1.2, which (as previously noted) imposes a two-level
enhancement if a defendant “recklessly created a substantial
risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer[.]” J.A. 43.

     The district court denied Hicks’ motion, reasoning that
Section 3C1.2 was materially distinguishable from the residual
clause at issue in Johnson: While the residual clause applies
categorically to “imagined or hypothetical crimes,” Section
3C1.2 is “based on a defendant’s real-world conduct.” Dist.
Ct. Op. 3 (internal quotation marks omitted). The district court
                                5
also denied Hicks’ subsequent motion for reconsideration, but
issued a certificate of appealability. See 28 U.S.C. § 2253.
Hicks timely appealed.

                               II

     The district court had jurisdiction over Hicks’ motion
under 28 U.S.C. § 2255. Because the district court issued a
certificate of appealability, this Court has jurisdiction over the
appeal under 28 U.S.C. § 2253.

    We review questions of procedural default de novo. See
United States v. Caso, 723 F.3d 215, 219 (D.C. Cir. 2013).

                                A

     The Supreme Court’s decisions in Johnson and Welch,
together, retroactively invalidated the Armed Career Criminal
Act’s residual clause provision enhancing punishment for
offenses that created a serious potential risk of physical injury
to others. 18 U.S.C. § 924(e)(2)(B)(ii). Shortly thereafter, the
Supreme Court addressed Johnson’s application to a nearly
identically worded Sentencing Guidelines provision, Section
4B1.2. The residual clause of Section 4B1.2 defined a “crime
of violence” as an offense that “otherwise involves conduct that
presents a serious physical risk of physical injury to another.”
U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S.
Sentencing Comm’n 2006). In Beckles v. United States, 137 S.
Ct. 886 (2017), the Court held that Sentencing Guidelines
Section 4B1.2 is not void for vagueness, id. at 892. The Court
reasoned that, at the time of Beckles’ sentencing in 2007, the
Sentencing Guidelines were advisory only. See Booker, supra.
Because Section 4B1.2 had served “merely [to] guide the
exercise of a court’s discretion in choosing an appropriate
                                  6
sentence within the statutory range,” the provision was held not
to be unconstitutionally vague. Beckles, 137 S. Ct. at 892.

     In so ruling, the Supreme Court left open the question of
whether similar language in a mandatory Sentencing
Guidelines provision—that is, a Sentencing Guidelines
provision that was applied prior to Booker—would be
unconstitutionally vague. See Beckles, 137 S. Ct. at 890
(“[T]he advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause[.]”) (emphasis
added); id. at 903 n.4 (Sotomayor, J., concurring).

    Hicks asks this Court to weigh in on this open question and
determine whether a similarly worded Sentencing Guidelines
provision—Section 3C1.2—that was applied as a mandatory
provision in his sentencing proceeding is unconstitutionally
vague. 1

     We need not resolve that question, however. That is
because Hicks has failed to preserve that claim for our review,
having procedurally defaulted it in his direct appeal and having
failed to establish prejudice from Section 3C1.2’s application
in his case. See Smith v. Lanier, 726 F.3d 166, 169 (D.C. Cir.
2013) (“[W]e can affirm a district court’s judgment on any
basis supported by the record[.]”) (quoting Carney v. American
Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998)).

    When a convicted defendant fails to raise a challenge to
his conviction or sentencing on direct appeal, that claim is
deemed to be procedurally defaulted and may be raised in
     1
        Section 3C1.2 reads: “If the defendant recklessly created a
substantial risk of death or serious bodily injury to another person in
the course of fleeing from a law enforcement officer, increase by 2
levels.” U.S. Sentencing Guidelines Manual § 3C1.2 (U.S.
Sentencing Comm’n 1993).
                               7
habeas only if the defendant establishes either (i) “cause” for
the default and “actual prejudice” resulting from the alleged
violation, or (ii) his “actual[] innocen[ce.]” Bousley v. United
States, 523 U.S. 614, 622 (1998) (citations and internal
quotation marks omitted).

     Hicks doubly defaulted his constitutional vagueness
challenge by failing to raise it both at sentencing and on his
direct appeal. Hicks also makes no claim that he is actually—
that is, factually—innocent of the crimes of which he was
convicted. As a result, Hicks bears the burden of showing both
“‘cause’ excusing his double procedural default,” and “‘actual
prejudice’ resulting from the errors of which he complains.”
United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir.
2003) (quoting United States v. Frady, 456 U.S. 152, 167–168
(1982)).

     Because the record in this case conclusively establishes
that Hicks was not prejudiced or affected in any legally
material way by the application of Sentencing Guidelines
Section 3C1.2 to his case, his constitutional claim cannot go
forward.

     In this context, “actual prejudice” means that the alleged
error at Hicks’ sentencing must have “worked to his actual and
substantial disadvantage, infecting” his sentencing with “error
of constitutional dimensions.” Pettigrew, 346 F.3d at 1144
(internal quotation marks omitted) (quoting Frady, 456 U.S. at
170). In other words, Hicks must “at least demonstrate that
‘there is a reasonable probability that, but for the errors, the
result of the proceedings would have been different.’” Id.
(alterations omitted) (quoting United States v. Dale, 140 F.3d
1054, 1056 n.3 (D.C. Cir. 1998)).
                                8
     The application of Sentencing Guidelines Section 3C1.2
added two points to Hicks’ offense level, elevating his total
offense level from 50 to 52. That was a change without a
difference because the Sentencing Guidelines capped the
maximum offense level at 43. See U.S. Sentencing Guidelines
Manual ch. 5, pt. A, cmt. n.2 (U.S. Sentencing Comm’n 1993)
(“An offense level of more than 43 is to be treated as an offense
level of 43.”). Once Hicks hit 43 for his offense level, his
mandatory Sentencing Guidelines range was life
imprisonment. Indeed, the Sentencing Guidelines’ sentencing
table did not (and still does not) list offense levels, or
corresponding Guidelines ranges, in excess of 43. See id. ch.
5, pt. A. All this means that Hicks was already facing an
offense level greater than 43 and a mandatory sentence of life
imprisonment long before the Section 3C1.2 enhancement was
even put on the table. The Section 3C1.2 enhancement had no
effect on his sentence at all. His sentence of life imprisonment
would have been exactly the same if Section 3C1.2 had never
been mentioned.

     For that reason, there is no probability, reasonable or
otherwise, that the result of the proceedings would have been
different had Section 3C1.2 not been applied. See Pettigrew,
346 F.3d at 1144 (quoting Frady, 456 U.S. at 168). As a result,
Hicks did not suffer actual prejudice from the application of
Sentencing Guidelines Section 3C1.2 at his sentencing, and his
procedural default of his constitutional challenge is not
overcome.

                                B

     Hicks tries to escape that numerical reality by arguing that,
if his motion for relief from his sentence were granted, he
would be resentenced on remand under the now-advisory
Sentencing Guidelines. And that would permit the sentencing
                               9
court to deviate from the Sentencing Guidelines range of life
imprisonment, affording him the prospect of a lower sentence.
See Booker, 543 U.S. at 245.

     That argument does not work. The actual prejudice
needed to overcome a procedural default must “result[] from
the error[] of which [Hicks] complains”—that is, from
application of the assertedly unconstitutionally vague Section
3C1.2 in his prior sentencing proceeding. Pettigrew, 346 F.3d
at 1144. The actual prejudice cannot derive, as Hicks argues,
from a different problem with the sentencing regime, such as
its mistakenly mandatory operation in 1994 when Hicks was
sentenced.     Notably, Hicks previously sought leave to
challenge his sentence as unconstitutional under Booker, but
we denied the claim because the Booker decision does not
apply retroactively. See Order, United States v. Hicks, No. 05-
3167 (D.C. Cir. Feb. 26, 2006) (per curiam); see also In re
Fashina, 486 F.3d 1300, 1306 (D.C. Cir. 2007). Hicks cannot
now pivot to Booker as the source of his injury for his separate
vagueness challenge to Section 3C1.2.

    On top of that, the actual prejudice inquiry is retrospective
not prospective in nature. It asks not whether things could
change on remand, but only whether the initial proceeding that
actually happened “would have been different” but for the
asserted constitutional error. Pettigrew, 346 F.3d at 1144
(emphasis added) (quoting Dale, 140 F.3d at 1056 n.3); see
Frady, 456 U.S. at 172.

     Nor is the Supreme Court’s recent decision in Molina-
Martinez v. United States, 136 S. Ct. 1338 (2016), of help to
Hicks. In Molina-Martinez, the Supreme Court held that, “[i]n
most cases,” a district court’s mistaken application of an
incorrectly higher Sentencing Guidelines range will by itself
establish “a reasonable probability of a different outcome”
                                10
sufficient to establish prejudice for purposes of plain error
review. Id. at 1346; see id. at 1347 (“[I]n the ordinary case a
defendant will satisfy his burden to show prejudice by pointing
to the application of an incorrect, higher Guidelines range and
the sentence he received thereunder.”).

     But Hicks’ situation is not “most cases” precisely because
the Sentencing Guidelines error he asserts did not yield a
“higher Guidelines range[.]” Molina-Martinez¸136 S. Ct. at
1346. The assigned error instead left Hicks right where he
started before Section 3C1.2 was raised—an offense level of
43 that prescribed a sentence of life imprisonment.

    In short, because the district court’s application of
Sentencing Guidelines Section 3C1.2 had no effect on the
sentence imposed, Hicks has not demonstrated the prejudice
necessary to overcome his procedural default, and we do not
reach the merits of his constitutional challenge. 2

                           * * * * *

     For the foregoing reasons, the district court’s judgment
denying Hicks’ Section 2255 motion to vacate his sentence is
affirmed.

                                                      So ordered.




    2
      We appointed Paul S. Rosenzweig to represent Hicks in forma
pauperis. He has ably discharged his duties, and this Court greatly
appreciates his service.
