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                                                                                  [PUBLISH]



                     IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT


                                           No. 12-11212


           D.C. Docket Nos. 5:08-cv-00550-WTH-TBS; 8:00-cr-00469-T-27-TGW



DUDLEY BRYANT, JR.,
                                                                       Petitioner-Appellant,

                                               versus

WARDEN, FCC COLEMAN - MEDIUM,
                                                                      Respondent-Appellee.



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


                                    (December 24, 2013)

Before HULL and MARTIN, Circuit Judges, and BOWEN, ∗ District Judge.

HULL, Circuit Judge:


       ∗
        Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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      Petitioner Dudley Bryant appeals the district court’s dismissal of his 28

U.S.C. § 2241 habeas petition, brought pursuant to the “savings clause” in 28

U.S.C. § 2255(e). Bryant’s appeal presents the issue to which this Court alluded in

Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), and subsequently left undecided

in Gilbert v. United States (Gilbert II), 640 F.3d 1293 (11th Cir. 2011) (en banc),

cert. denied, 132 S. Ct. 1001 (2012), and Williams v. Warden, 713 F.3d 1332 (11th

Cir. 2013). The issue is whether the savings clause in § 2255(e) permits a federal

prisoner to bring a § 2241 petition when he has established that his current 235-

month sentence for an 18 U.S.C. § 922(g) conviction exceeds the 10-year statutory

maximum penalty authorized by Congress under 18 U.S.C. § 924(a).

      When a conviction has become final, a federal prisoner usually may

challenge the legality of his detention only through a § 2255 motion. However, the

savings clause in § 2255(e) permits the prisoner to file a § 2241 habeas petition

when a § 2255 motion was “inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e). After review of the record, the briefs of the

parties and the amicus, and having the benefit of oral argument, we conclude

Bryant has satisfied the savings clause’s requirements in § 2255(e).

      Bryant has proven that his prior § 2255 motion was “inadequate or

ineffective to test the legality of his detention” and that his § 2241 petition can now

proceed under § 2255(e) because: (1) from the time of his initial sentencing in


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2002 throughout his first § 2255 proceeding in 2005, our Circuit’s binding

precedent in United States v. Hall, 77 F.3d 398, 401-02 (11th Cir. 1996), held that

a concealed-firearm offense under Fla. Stat. § 790.01 was a “violent felony” under

§ 924(e) and squarely foreclosed Bryant’s claim that he was erroneously sentenced

above the 10-year statutory maximum penalty in § 924(a); (2) subsequent to

Bryant’s first § 2255 proceeding, the Supreme Court’s decision in Begay v. United

States, 553 U.S. 137, 128 S. Ct. 1581 (2008), set forth a new standard to evaluate

which crimes constitute violent felonies under § 924(e), and Begay, as interpreted

by United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), and United

States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009), overturned our Circuit

precedent in Hall; (3) Begay’s new rule is substantive and applies retroactively to

Bryant’s § 924(e) claim on collateral review; (4) as a result of pure § 924(e)-Begay

error and retroactive application of Begay, Bryant’s 235-month sentence exceeds

the 10-year statutory maximum authorized by Congress in § 924(a); and (5) the

savings clause in § 2255(e) reaches his claim of illegal detention above the

statutory maximum penalty. Accordingly, we vacate the district court’s dismissal

of Bryant’s § 2241 petition and remand with instructions set forth herein.

      We first review the procedural history of Bryant’s case, the savings clause in

§ 2255(e), and our Circuit’s prior rulings about § 2255(e). We then summarize the




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five specific requirements a § 2241 petitioner must satisfy to proceed under

§ 2255(e) and explain why Bryant has satisfied them.

                         I.     PROCEDURAL HISTORY
A.    Indictment in 2000

      In December 2000, a federal grand jury indicted Bryant on one count of

knowingly possessing firearms and ammunition while being a convicted felon,

“[i]n violation of [18 U.S.C. §§] 922(g)(1) and 924(e).” While § 922(g)(1)

prohibits the possession of any firearm or ammunition by a convicted felon, § 922

contains no penalty provision. See 18 U.S.C. § 922(g).

      The penalties for § 922(g) offenses are laid out in various provisions of

§ 924. As to Bryant’s § 922(g)(1) crime, § 924(a)(2) provides that a person who is

convicted of knowingly violating § 922(g)(1) shall be “imprisoned not more than

10 years.” 18 U.S.C. § 924(a)(2). The statutory maximum penalty for a

§ 922(g)(1) crime is 10 years’ imprisonment under § 924(a)(2).

      Section 924(e), known as the Armed Career Criminal Act (“ACCA”),

prescribes different and higher statutory penalties for the § 922(g)(1) felon-in-

possession offense. Section 924(e)(1) provides that, “[i]n the case of a person who

violates section 922(g)” and “has three previous convictions by any court . . . for a

violent felony or a serious drug offense, or both,” that person “shall be . . .

imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). The statutory


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maximum under § 924(e)(1) is life in prison. United States v. Brame, 997 F.2d

1426, 1428 (11th Cir. 1993). The increased statutory penalties in § 924(e) are

often referred to as the “ACCA enhancement.”

      Bryant’s indictment gave him notice that the government intended to seek

the increased statutory penalties in § 924(e) based on his prior concealed-firearm

conviction and two drug convictions. Bryant’s indictment charged that he had

these felony convictions: (1) a 1988 Florida conviction for delivery and possession

of cocaine; (2) 1989 Florida convictions for carrying a concealed firearm and being

a felon in possession of a firearm; and (3) 1991 Florida convictions for delivery

and possession of cocaine and for obstructing or opposing an officer without

violence.

B.    Guilty Plea in 2001

      In July 2001, Bryant pled guilty to his one-count indictment. During the

plea hearing, the district court informed Bryant that, because he had “3 qualifying

felony convictions,” he was facing a mandatory minimum sentence of 15 years and

maximum sentence of life imprisonment, pursuant to § 924(e). Bryant

acknowledged his understanding of these penalties.

C.    Presentence Investigation Report

      Bryant’s Presentence Investigation Report (“PSI”) indicated that, because

Bryant had 3 prior felony convictions for a “violent felony” or a “serious drug


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offense,” he was subject to a mandatory minimum penalty of 15 years’

imprisonment and a statutory maximum penalty of life, pursuant to § 924(e). In

Paragraph 12 of the “Offense Conduct” section, the PSI referenced the same prior

felony convictions as the indictment.

       Bryant’s base offense level was 24, pursuant to U.S.S.G. § 2K2.1, for his

§ 922(g)(1) felon-in-possession offense. Bryant received a 4-level increase under

§ 2K2.1(b)(5) for possessing firearms in connection with another felony offense, 1

and a 1-level increase under § 2K2.1(b)(1)(A) for possessing three or more

firearms, which resulted in an initial adjusted offense level of 29.

       In the criminal history section, the PSI listed not only Bryant’s three

convictions shown in the indictment, but also his other convictions. Among them

was a 1988 felony conviction for “Burglary of a Structure.” Given all of his prior

convictions, the PSI assigned Bryant 18 criminal history points and placed him into

criminal history category VI.

       Bryant’s offense level of 29 and criminal history category of VI yielded a

guidelines range of 151 to 188 months’ imprisonment. See U.S.S.G. ch. 5, pt. A,

Sentencing Table (2000).


       1
        Bryant’s other felony offense was possession of cocaine and cocaine base. The PSI also
noted that the § 2K2.1(b)(5) enhancement was appropriate because Bryant transferred a firearm
to another person and reasonably should have known that the firearm would be used in another
felony.


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      The PSI also raised Bryant’s offense level from 29 to 33 under U.S.S.G.

§ 4B1.4(b)(3)(B), the armed-career-criminal guideline. This armed-career-

criminal classification did not change Bryant’s criminal history category of VI,

which was already the highest available. The offense level of 33, combined with a

criminal history category of VI, resulted in a guidelines range of 235 to 293

months in prison.

D.    Objections to the PSI and Sentencing Hearing in 2002

      Bryant raised several objections to the PSI, including an objection to his

classification as an armed career criminal. Bryant reiterated this objection at the

sentencing hearing, arguing that his prior concealed-firearm conviction, which was

referenced in the indictment, did not qualify as a “violent felony” under

§ 924(e)(2)(B) and, therefore, he should not be subject to the increased statutory

maximum penalty of life in § 924(e)(1). The government countered that Bryant

had “5 or 6 felony convictions which also could have been used” for § 924(e)

purposes.

      In response to the government’s claim that Bryant had several other

qualifying felony convictions, the district court stated: “I’m going through all of

[Bryant’s prior convictions], because there’s a reference to 4 or 5 other felonies

that could have been used from the government, and I’m going to find out if that’s

accurate.” The district court then conducted a thorough examination of the felony


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offenses listed in paragraphs 33 through 49 of the criminal history section of

Bryant’s PSI to determine which offenses could support an increased statutory

maximum penalty under § 924(e). The district court’s review was so thorough that

the court specifically addressed all of Bryant’s prior convictions, including his

misdemeanor convictions, other than Bryant’s obviously non-qualifying

misdemeanor convictions for public drinking and attempting to cash stolen checks.

      During the district court’s review, the government and Bryant were afforded

multiple opportunities to respond directly to the qualifying nature of the

convictions. The parties agreed that Bryant’s two prior convictions for delivery of

cocaine were qualifying offenses pursuant to § 924(e). These were the two drug

convictions listed in Bryant’s indictment. The parties disagreed as to the

qualifying nature of Bryant’s prior concealed-firearm conviction, which was the

third qualifying conviction listed in his indictment.

      After its exhaustive review, the district court found that, “[a]t most we’ve

got three” qualifying predicate convictions. The district court then asked the

government, “What are the four or five that you were talking about?” In response,

the government conceded, “Maybe they were non qualifying . . . .” The

government then suggested that it had mistakenly counted non-qualifying drug

offenses. The government did not object to the district court’s finding that there

were “[a]t most . . . three” qualifying predicate convictions, which were the two


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qualifying drug convictions and the single concealed-firearm conviction. The

government never directed the district court to Bryant’s prior burglary conviction.

In fact, the government failed to suggest at any point during the district court’s

thorough review of Bryant’s prior convictions that his prior burglary conviction

was a § 924(e)-qualifying offense.2

       Ultimately, the district court overruled Bryant’s objection to his concealed-

firearm conviction based on this Court’s decision in Hall, 77 F.3d at 401-02

(expressly holding that a conviction for carrying a concealed firearm under Florida

law is a “violent felony” under § 924(e)(2)(B) because that offense posed a

“serious potential risk of physical injury”). 3 Consequently, after its thorough

review of all of Bryant’s criminal history, the district court found only three

§ 924(e)-qualifying convictions: two cocaine-delivery convictions and one

concealed-firearm conviction.




       2
         The only discussion related to Bryant’s prior burglary conviction addressed whether that
conviction was a “crime of violence” under the career offender portion of the sentencing
guidelines. The district court concluded that the “Burglary of a Structure” offense “clearly [was]
not a crime of violence” because it involved burglary of a structure, not a dwelling. The
government did not object.
        After reviewing several other convictions listed in the PSI, the court returned to the
“Burglary of a Structure” offense and again found that the offense was not a “crime of violence”
as defined by U.S.S.G. § 4B1.2. Again, the government did not object.
       3
         As discussed later, the Supreme Court’s decision in Begay effectively overturned our
precedent in Hall. See United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009); United
States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).


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      This finding changed Bryant’s statutory maximum penalty from 10 years to

life in prison. The district court sentenced Bryant to 235 months in prison, the low

end of the guidelines range, to be followed by 3 years of supervised release.

E.    Direct Appeal in 2002

      Bryant filed a direct appeal, raising only a suppression issue that he had

preserved when he pled guilty. In October 2002, this Court summarily affirmed.

See United States v. Bryant, 52 F. App’x 487 (11th Cir. 2002).

F.    First § 2255 Motion in 2005

      In October 2005, Bryant filed his first § 2255 motion to vacate his sentence.

Bryant argued that he was “actually innocent” of the increased statutory penalties

in § 924(e) because the government failed to prove, using Shepard 4-approved

documents, that his two Florida drug convictions qualified as “serious drug

offense[s]” under § 924(e)(2)(A). Bryant also argued generally that the

government failed to prove, using Shepard-approved documents, that he had a

conviction for a violent felony under § 924(e)(2)(B). But, he did not specifically

reference his concealed-firearm conviction in his first § 2255 motion.

      The district court denied Bryant’s first § 2255 motion as time-barred. Both

the district court and this Court denied a Certificate of Appealability (“COA”).



      4
          Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).


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G.    Second § 2255 Motion in 2008

      In September 2008, Bryant attempted to file a second § 2255 motion in the

district court, arguing that, under the Supreme Court’s decision in Begay, he did

not qualify for the life statutory maximum penalty in § 924(e). The district court

dismissed Bryant’s second § 2255 motion because he failed to obtain the requisite

authorization from this Court required by 28 U.S.C. §§ 2244(b)(3)(A), 2255(h).

H.    Request for Leave to File Successive § 2255 Motion

      In November 2008, Bryant sought authorization from this Court to file a

second or successive § 2255 motion, relying on Begay as a “new rule” of law for

purposes of § 2255(h).

      In 1996, Congress substantially restricted second or successive collateral

attacks by enacting the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Under § 2255(h), AEDPA bars the filing of a second or successive

§ 2255 motion unless this Court certifies that the proposed § 2255 motion is based

on (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.” 28




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U.S.C. § 2255(h) (emphasis added); In re Dean, 341 F.3d 1247, 1248 (11th Cir.

2003).

      In November 2008, this Court denied Bryant’s application for leave to file a

second or successive § 2255 motion, reasoning that Begay was not a “new rule of

constitutional law” under § 2255(h) because it merely interpreted a substantive

criminal statute, i.e., § 924(e). (Emphasis added).

I.    Present § 2241 Petition

      In December 2008, in the district court, Bryant filed a pro se habeas corpus

petition, pursuant to 28 U.S.C. § 2241, and a memorandum of law in support. In

his § 2241 petition, Bryant asserted that § 2255 had been “inadequate or

ineffective” to challenge the legality of his 235-month sentence because our

Circuit’s precedent in Hall had foreclosed his § 924(e) claim during his first § 2255

motion in 2005.

      Bryant contended that, under Begay and Archer, this Court’s precedent in

Hall was effectively abrogated; therefore, his concealed-firearm conviction did not

qualify as a “violent felony” under § 924(e)(2)(B), and he did not have the three

predicate convictions necessary to increase his sentence under § 924(e). Bryant

essentially argued his 235-month sentence exceeded his statutory maximum

penalty of 10 years for his § 922(g) crime. Bryant further argued the savings




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clause in § 2255(e) permitted him to bring his § 2241 petition challenging his

illegal sentence.

       The district court dismissed Bryant’s § 2241 petition. Bryant timely

appealed in 2012.5

                           II.    PROCEDURAL DEFAULT
       At the outset, one wonders why procedural default or waiver by Bryant does

not resolve his case. Bryant did not raise on direct appeal (or even in his first

§ 2255 motion) a claim that his concealed-firearm conviction was not a “violent

felony” and that he was illegally sentenced above the 10-year statutory maximum

in § 924(a) for that reason.

       In § 2255 and § 2241 cases, this would result in a procedural default, unless

Bryant can establish “cause and prejudice for his failure to assert his claims on

direct appeal.” McCoy v. United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001)

(applying the procedural-default rule to a § 2255(a) motion to vacate); Sawyer v.

Holder, 326 F.3d 1363, 1366 (11th Cir. 2003) (applying the procedural-default rule

to a § 2241 habeas petition).




       5
         Bryant does not need a COA to appeal the district court’s dismissal of his § 2241
petition. See Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003) (stating that, pursuant
to 28 U.S.C. § 2253(c)(1)(B), a federal prisoner needs a COA only when proceeding under
§ 2255, not when proceeding under § 2241).


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      This Court has made clear that futility of a claim due to adverse Circuit

precedent at the time of direct appeal does not constitute cause to excuse a

procedural default in a first § 2255 motion. McCoy, 266 F.3d at 1258-59 (applying

the procedural default rule in a first § 2255 motion because petitioner did not raise

his Apprendi6 claim on direct appeal, even though the claim was rejected by “every

circuit which had addressed the issue” at the time). A ruling based on procedural

default would obviate the need for us to address the difficult issue here about the

savings clause in § 2255(e).

      We cannot take that easy way out because the procedural-default rule is not

jurisdictional, but is an affirmative defense that is subject to waiver by the

government. Howard v. United States, 374 F.3d 1068, 1073 (11th Cir. 2004);

Shukwit v. United States, 973 F.2d 903, 904 (11th Cir. 1992); United States v.

Jordan, 915 F.2d 622, 629 (11th Cir. 1990). In the district court and now on

appeal, the government has not asserted any procedural default as a defense to

Bryant’s § 2241 petition or his attempt to proceed under the § 2255(e) savings

clause. By every reasoned measure, the government intentionally has waived any

procedural default defense. See Shukwit, 973 F.2d at 904; Jordan, 915 F.2d at 629.

Nothing herein should be read as indicating that Bryant has shown cause and

prejudice.

      6
          Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).


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      Before leaving procedural default, there is one more reason why Bryant’s

failure to raise this particular § 924(e)-violent felony claim in his first § 2255

motion does not matter here. As discussed below, the language of § 2255(e) states

that the savings clause applies regardless of whether a federal prisoner “has failed

to apply” for § 2255 relief or whether the sentencing court “has denied him”

§ 2255 relief. See 28 U.S.C. § 2255(e). Therefore, Bryant’s failure to raise this

particular § 924(e) claim in his first § 2255 motion does not preclude him from at

least attempting to proceed under the savings clause in § 2255(e).

      In addition, this Court recently held that whether the savings clause in

§ 2255(e) may open the portal to a § 2241 petition is a “threshold” jurisdictional

issue that must be decided before delving into the merits of the petitioner’s claim

and the applicable defenses. See Williams, 713 F.3d at 1337-40 (concluding the

savings clause is jurisdictional and, thus, limits the district court’s subject-matter

jurisdiction to entertain a § 2241 petition even when the government wishes to

concede that the savings clause allows the § 2241 petitioner’s claim); see also

Sawyer, 326 F.3d at 1366-67 (concluding the savings clause in § 2255(e) did not

apply to § 2241 petitioner’s claim, but alternatively assuming that the petitioner

had made the necessary showing to invoke the savings clause, and only then

deciding the petitioner’s claim was procedurally defaulted).




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      For these reasons, we must decide the jurisdictional question of whether the

savings clause in § 2255(e) permits Bryant to bring a § 2241 petition claiming that

his sentence is above the authorized statutory maximum penalty.

                         III.   STANDARD OF REVIEW
      “Whether a prisoner may bring a 28 U.S.C. § 2241 petition under the

savings clause of § 2255(e) is a question of law we review de novo.” Williams,

713 F.3d at 1337. The petitioner bears the burden of demonstrating that the § 2255

remedy was “inadequate or ineffective to test the legality of his detention” for

purposes of § 2255(e). Turner v. Warden, 709 F.3d 1328, 1333 (11th Cir.), cert.

denied, 133 S. Ct. 2873 (2013).

                          IV.    THE SAVINGS CLAUSE
      Section 2255(e) states in full:

              An application for a writ of habeas corpus in behalf of a
              prisoner who is authorized to apply for relief by motion
              pursuant to this section, shall not be entertained if it
              appears that the applicant has failed to apply for relief, by
              motion, to the court which sentenced him, or that such
              court has denied him relief, unless it also appears that the
              remedy by motion is inadequate or ineffective to test the
              legality of his detention.

28 U.S.C. § 2255(e). Section 2255(e)’s language—“An application for a writ of

habeas corpus”—includes a petition filed under 28 U.S.C. § 2241, which Bryant

filed here.




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        Section 2255(e) thus provides that a § 2241 petition “shall not be

entertained” if a federal prisoner has failed to apply for relief by a § 2255 motion,

or has already been denied such relief, “unless it also appears that the remedy by

motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C.

§ 2255(e) (emphasis added). This quoted exception to § 2255(e)’s bar on a § 2241

petition is commonly referred to as the “savings clause.”

        Section 2255(e)’s language—“shall not be entertained”—speaks “in

imperative terms regarding a district court’s power to entertain a [§ 2241] claim,”

and “in enacting § 2255(e), Congress clearly restricted the subject-matter

jurisdiction of the federal courts” over § 2241 petitions. Williams, 713 F.3d at

1340.

        And, as noted earlier, § 2255(e) by its own terms applies regardless of

whether a federal prisoner “has failed to apply” for § 2255 relief or whether the

sentencing court “has denied him” § 2255 relief. Rather, the touchstone of the

savings clause is whether a § 2255 motion would have been “inadequate or

ineffective to test the legality of [the prisoner’s] detention.” 28 U.S.C. § 2255(e).

        In prior cases, we found nothing in the legislative history explaining what

this language in the savings clause means. See Wofford, 177 F.3d at 1239-41; see

also Gilbert II, 640 F.3d at 1307 (“The history behind the savings clause does not

provide much help with its meaning.”). However, our decisions in Wofford,


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Gilbert II, and Williams do discuss what the terms “inadequate or ineffective”

and/or “detention” mean and what type of claim might open the savings clause

portal to § 2241 jurisdiction. See Wofford, 177 F.3d 1236; Gilbert II, 640 F.3d

1293; Williams, 713 F.3d 1332. We review these decisions, which guide our

analysis.

                       V.    WOFFORD v. SCOTT (1999)
      In our first case addressing the savings clause, we framed the issue before

this Court as a broad one, asking “what circumstances other than those involving

practical difficulties are covered by the savings clause[?]” Wofford, 177 F.3d at

1242. In light of § 2255’s legislative history and other circuits’ decisions, we

identified only one situation, conviction of a non-existent offense, when the

savings clause applies, and only speculated as to the possible existence of another

in the sentencing context. See id. at 1244-45.

      In Wofford, the petitioner, Charlie Wofford, pled guilty in federal court to a

drug conspiracy and being a felon in possession of a firearm. Wofford, 177 F.3d at

1237. He was sentenced to 300 months for the drug conspiracy and 60 months,

concurrently, for the felon-in-possession offense. Wofford’s first § 2255 motion

was denied. Id. This Court denied Wofford’s application to file a second § 2255

motion because he failed to meet § 2255(h)’s exceptions to AEDPA’s bar on

second or successive § 2255 motions. Id. at 1238.


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      Wofford then filed a § 2241 habeas petition, raising, inter alia, a claim that

his classification as a career offender under the guidelines “was improperly

predicated upon the [district] court’s belief that it could not examine the underlying

offenses in making that determination.” See id. Wofford did not claim, however,

that his 300-month sentence exceeded the statutory maximum penalty. See id.

The district court dismissed the § 2241 petition, and Wofford appealed. Id.

A.    Meaning of the Savings Clause

      On appeal, this Court described the savings clause’s legislative history,

which, as mentioned above, yielded no concrete answers. See id. at 1239-42.

After canvassing other circuits’ decisions, we determined that the best approach

was the Seventh Circuit’s decision in In re Davenport, 147 F.3d 605 (7th Cir.

1998). See Wofford, 177 F.3d at 1242-44. The Seventh Circuit’s Davenport

decision rejected the argument that the § 2255(e) savings clause allows a § 2241

habeas petition whenever AEDPA bars a second or successive § 2255 motion. See

Wofford, 177 F.3d at 1244. The essence of habeas relief, and all that the

Constitution requires, is to allow a prisoner “‘a reasonable opportunity to obtain a

reliable judicial determination of the fundamental legality of his conviction and

sentence,’” either on direct appeal, in a first § 2255 motion, or in a successive

§ 2255 motion authorized by AEDPA. Id. (quoting Davenport, 147 F.3d at 609).




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       Citing Davenport, this Court in Wofford described, in dicta, two

circumstances under which the savings clause may allow a federal prisoner to

proceed under § 2241. First, the Wofford panel opined, in dicta, that the savings

clause “applies to a claim” when (1) a petitioner’s claim “is based upon a

retroactively applicable Supreme Court decision”; (2) “the holding of that Supreme

Court decision establishes the petitioner was convicted for a nonexistent offense”;

and (3) “circuit law squarely foreclosed such a claim at the time it otherwise

should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Id.

at 1244. This analysis in Wofford covers actual innocence challenges akin to the

post-Bailey7 § 2241 petitions, such as when a Supreme Court decision subsequent

to conviction means that a petitioner’s offense conduct is no longer criminal. See

Williams, 713 F.3d at 1343 (discussing Wofford).

       Second, Wofford observed, in dicta again, that the savings clause “might

apply to some claims involving a ‘fundamental defect’ in sentencing where the

petitioner had not had an opportunity to obtain judicial correction of that defect

earlier.” Wofford, 177 F.3d at 1244 (quoting Davenport, 147 F.3d at 611). We

declined to decide, however, “whether the savings clause extends to [such]

       7
         Bailey v. United States, 516 U.S. 137, 144, 149, 116 S. Ct. 501, 506, 508 (1995)
(holding that a person may be convicted of the crime of “using” a firearm under 18 U.S.C.
§ 924(c) only if he “actively employed” the firearm, not merely possessed it), superseded by
statute, 18 U.S.C. § 924(c), as recognized in United States v. Timmons, 283 F.3d 1246, 1249,
1252 (11th Cir. 2002).


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sentencing claims . . . or what a ‘fundamental defect’ in a sentence might be.” Id.

at 1244-45. “It is enough to hold, as we do, that the only sentencing claims that

may conceivably be covered by the savings clause are those based upon a

retroactively applicable Supreme Court decision overturning circuit precedent.”

Id. at 1245.

B.      Application to Wofford’s Claims

        Applying these principles, we concluded that the savings clause did not

cover Wofford’s claims because (1) he “was not convicted of any crime which a

retroactively applicable Supreme Court decision overturning prior circuit precedent

has made clear is nonexistent”; (2) none of his sentencing claims rested upon a

“circuit law-busting, retroactively applicable Supreme Court decision”; and (3) he

had a “procedural opportunity to raise each of his claims and have it decided either

at trial or on appeal.” Id. at 1245. We concluded that Wofford was “attempting to

use § 2241 simply to escape the restrictions on second or successive § 2255

motions.” Id.

                   VI.    GILBERT v. UNITED STATES (2011)
        In our next savings clause decision, Gilbert II, we held definitively that the

savings clause does not reach a guidelines-error sentencing claim when the

prisoner’s sentence does not exceed the statutory maximum. Gilbert II, 640 F.3d at

1295.


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A.    Procedural History in Gilbert’s Case

      In 1997, petitioner Ezell Gilbert pled guilty to two drug crimes, including

possession of crack cocaine with intent to distribute. Id. at 1298. His offense

involved 50 grams or more of crack cocaine and carried a maximum penalty of life

imprisonment under 21 U.S.C. § 841(b)(1)(A) (1996). Id. At Gilbert’s sentencing

in 1997, the district court classified him as a career-offender under § 4B1.1 of the

guidelines (which were mandatory at the time), in part due to his prior Florida

§ 790.01 concealed-firearm conviction. Id. at 1298-99. This career-offender status

increased Gilbert’s offense level and criminal history category, yielding a

guidelines range of 292 to 365 months’ imprisonment. Id. at 1299-1300. The

district court sentenced Gilbert to 292 months in prison. Id. at 1300. Importantly,

this sentence was less than Gilbert’s statutory maximum sentence of life

imprisonment for his drug offense. Id. at 1298-1300.

      On direct appeal, Gilbert challenged his career-offender status, arguing that

a concealed-firearm offense did not qualify as a “crime of violence” under § 4B1.2

of the guidelines. Id. at 1300. In 1998, in United States v. Gilbert (Gilbert I), 138

F.3d 1371, 1372 (11th Cir. 1998), this Court rejected Gilbert’s argument, based on

our 1996 Hall decision, and held that a concealed-firearm offense under Fla. Stat.




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§ 790.01 “‘presents a serious potential risk of physical injury’” within the meaning

of § 4B1.2(a)(2)’s definition of “crime of violence.” 8 Gilbert I, 138 F.3d at 1372.

       In 1999, Gilbert filed his first § 2255 motion but did not challenge his

career-offender status under § 4B1.1 of the guidelines. Gilbert II, 640 F.3d at

1301. The district court denied the motion, and this Court denied a COA. Id.

       Ten years later in 2009, Gilbert filed a motion to reopen or amend his first

§ 2255 motion. Gilbert wanted to challenge his § 4B1.1 career-offender status due

to the intervening decisions from the Supreme Court in Begay and our Circuit in

Archer. We review Begay and Archer to place our subsequent en banc decision in

Gilbert II in context.

B.     Intervening Decisions in Begay and Archer

       In 2008, the Supreme Court, in Begay, addressed § 924(e)(2)(B)(ii), which

defines “violent felony” as a crime that “is burglary, arson, or extortion, involves

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

risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The question

       8
       Section 4B1.2 of the guidelines defines the term “crime of violence” as follows:
              The term “crime of violence” means any offense under federal or
              state law, punishable by imprisonment for a term exceeding one
              year, that--
              (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).


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before the Supreme Court was whether a New Mexico conviction for driving under

the influence (“DUI”) qualified as a “violent felony” under the last clause in

§ 924(e)(2)(B)(ii). Begay, 553 U.S. at 139-48, 128 S. Ct. at 1584-88.

      The Supreme Court determined in Begay that the term “violent felony” (1)

does not apply to “every crime that presents a serious potential risk of physical

injury to another,” but (2) refers only to crimes that are “roughly similar, in kind as

well as in degree of risk posed,” to the offenses enumerated in § 924(e)(2)(B)(ii),

namely, “burglary, arson, extortion, or crimes involving the use of explosives.” Id.

at 142-43, 128 S. Ct. at 1584-85 (internal quotation marks omitted). These

enumerated crimes “all typically involve purposeful, violent, and aggressive

conduct.” Id. at 144-45, 128 S. Ct. at 1586 (internal quotation marks omitted).

The Supreme Court concluded that (1) strict liability crimes such as DUI generally

do not involve purposeful, violent, and aggressive conduct and can be committed

without “any criminal intent at all,” and (2) thus, New Mexico’s DUI offense did

not qualify as a “violent felony” under the last clause in § 924(e)(2)(B)(ii). Id. at

145, 148, 128 S. Ct. at 1586-88.

      Several months after Begay, this Court decided Archer v. United States,

concluding that Begay “clearly set forth a new standard to evaluate which crimes

constitute ‘violent felonies’ and ‘crimes of violence.’” Archer, 531 F.3d at 1352.

Although Begay was a “violent felony” case under the § 924(e) statute, we applied


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Begay to the “crime of violence” designation in the guidelines because the

definitions of those terms are virtually identical. Id. In Archer, we held that Begay

undermined Gilbert I to the point of abrogation, and that “the crime of carrying a

concealed firearm may no longer be considered a crime of violence under the

Sentencing Guidelines.” Id.

C.    Gilbert II En Banc

      Based on these intervening decisions in Begay and Archer, Gilbert’s motion

asked the district court either to reopen his first § 2255 proceeding or to construe

his motion as a § 2241 petition and allow it to proceed under the savings clause in

§ 2255(e). Id. at 1301-02. After the district court denied relief, Gilbert appealed.

Id. at 1302.

      On rehearing en banc in Gilbert II, this Court framed the issue presented as

follows: “Does the savings clause of § 2255(e) apply to claims that the sentencing

guidelines were misapplied in the pre-Booker9 mandatory guidelines era in a way

that resulted in a substantially longer sentence that does not exceed the statutory

maximum?” Id. at 1306 (emphasis added). We included the statutory-maximum

qualification “to make it clear we are not deciding that issue, and we do not imply

any view about how that issue should be decided when and if it is presented in

some other case.” Id.

      9
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).


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D.     Two Assumptions in Gilbert II

       Before delving into its discussion, the en banc Court in Gilbert II made two

assumptions. Id. at 1302-05. First, we assumed that, if Begay and Archer had

been decided at the time of Gilbert’s sentencing, his guidelines range would have

been lower, and he would have received a lesser sentence than his current 292

months. Id. at 1305. Second, we assumed that, were we to rule in Gilbert’s favor,

he would receive a lesser sentence on remand, given his lowered guidelines range.

Id. We stressed, however, that these were only assumptions and that we were “not

so sure of either proposition.” Id. at 1302-05.10

E.     Gilbert’s Sentence Did Not Exceed the Statutory Maximum

       Even assuming Gilbert’s guidelines range and sentence would have been

lower, we rejected Gilbert’s argument that, because he was sentenced in the pre-

Booker, mandatory-guidelines era, his statutory maximum sentence was the high

end of his guidelines range, not the maximum penalty prescribed by statute. Id. at

1306-07. We indicated that a critical difference existed between pre-Booker


       10
           Regarding the first assumption, we explained that the government had waived its right
to insist on a mandatory life sentence as part of its plea bargain with Gilbert and that the
government may not have done so “if it could not have counted on the career offender
enhancement to double [his] sentence.” Gilbert II, 640 F.3d at 1303-04. As to the second
assumption, we stated that, given the post-Booker, advisory nature of the guidelines, Gilbert’s
sentence on remand “could be the same or even longer.” Id. at 1304. We described the
aggravated nature of Gilbert’s two offenses and stated that, based on the 18 U.S.C. § 3553(a)
factors, “[a] sentence of 292 months, or even a life sentence, would not be unreasonable or
disproportionate to the crime.” Id. at 1305.


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mandatory guidelines and statutory maximum penalties. Id. We explained that a

“statutory maximum sentence” is a “punishment ceiling beyond which no

defendant convicted for committing that particular crime may be sentenced

regardless of the circumstances of the crime, regardless of the defendant’s history,

and regardless of the sentencing guidelines.” Id. at 1306. “To the extent of any

inconsistency [between the guideline range and the statute], the guidelines would

have to bend to statutorily prescribed limits, not the other way around.” Id. at

1307. We reiterated that Gilbert’s statutory maximum penalty was life

imprisonment for his crack cocaine offense under 21 U.S.C. § 841(b)(1)(A) (1996),

without regard to his criminal history. See id. at 1306. Gilbert’s statutory

maximum penalty was not the top end of the correctly calculated guidelines range.

Id. at 1306-07.

F.    Savings Clause Does Not Trump § 2255(h)

      In addressing the meaning of the savings clause in § 2255(e), we also

concluded in Gilbert II that the AEDPA restrictions in § 2255(h) on successive

motions do not render a § 2255 remedy “‘inadequate or ineffective’” for purposes

of the savings clause in § 2255(e). Id. at 1308. Otherwise, we explained, “the

savings clause would eviscerate [AEDPA’s] second or successive motions bar [in

§ 2255(h)], and prisoners could file an endless stream of § 2255 motions, none of

which could be dismissed without a determination of the merits of the claims they


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raise.” Id. We observed that other circuits addressing the relationship between

§ 2255(e) and (h) also refused to interpret the savings clause in § 2255(e) “in a way

that would drop the § 2255(h) bar on second and successive motions, defeat its

purpose, and render it pointless.” Id. Moreover, according to fundamental canons

of statutory construction, the “generally worded and ambiguous savings clause” in

§ 2255(e) could not override AEDPA’s “specifically worded and clear statutory

bar on second or successive motions” in § 2255(h). Id.

G.    Finality Interests

      The en banc Gilbert II Court then heavily emphasized the importance of

finality interests in criminal convictions and balanced those finality interests

against challenges to guidelines-based errors. We reasoned: “The critically

important nature of the finality interests safeguarded by § 2255(h) . . . weighs

heavily against an interpretation of the savings clause [in § 2255(e)] that would

lower the second or successive motions bar and permit guidelines-based attacks

years after the denial of an initial § 2255 motion.” Id. at 1309. We explained that

the “[s]entencing guidelines provisions are many and complex, the English

language and those who use it are imperfect, and the case law about what various

and sundry guidelines mean and whether they apply in different factual situations

is in a constant state of flux.” Id.




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      Gilbert sought to create a rule that “would apply to every type and kind of

enhancement, of which there are scores in the sentencing guidelines.” Id. at 1309-

10. We stated, however, that allowing a guidelines-misapplication claim to

proceed under the savings clause and avoid the AEDPA bar in § 2255(h) “would

wreak havoc on the finality interests that Congress worked so hard to protect with

the AEDPA provisions.” Id. at 1310.

      The en banc Gilbert II Court stressed that finality of judgments was one of

the central principles behind AEDPA’s restrictions on second or successive § 2255

motions. Id. After all, if second or successive § 2255 motions were not “greatly

restricted,” there would be “no end to collateral attacks on convictions and

sentences.” Id. at 1311 (internal quotation marks omitted and alteration adopted).

We cited several Supreme Court cases explaining the importance of finality, such

as McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454 (1991), which stated that a

“‘procedural system which permits an endless repetition of inquiry into facts and

law in a vain search for ultimate certitude implies a lack of confidence about the

possibilities of justice that cannot but war with the effectiveness of underlying

substantive commands.’” Gilbert II, 640 F.3d at 1311 (quoting McCleskey, 499

U.S. at 492, 111 S. Ct. at 1469). We concluded that, “for claims of sentence error,

at least where the statutory maximum was not exceeded, the point where finality




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holds its own against error correction is reached not later than the end of the first

round of collateral review.”11 Id. at 1312 (emphasis added).

H.     Savings Clause May Permit Actual-Innocence Claims

       In Gilbert II, the en banc Court acknowledged that other circuits permit

federal prisoners to use the savings clause to bring “actual innocence” claims in

§ 2241 petitions, such as claims originating under Bailey. Id. at 1318-19. We

explained that the Wofford panel had Bailey-type, actual-innocence-of-the-crime

claims in mind when it stated that the savings clause would permit a prisoner to

bring a § 2241 petition based on a “retroactively applicable, circuit law-busting”

Supreme Court decision establishing that he was “convicted of a nonexistent

crime.” Id. at 1319.

       We cautioned, however, that this statement in Wofford was dicta because

(1) all of Wofford’s claims “were sentencing claims, ‘none of which rested upon a

circuit law-busting, retroactively applicable Supreme Court decision’”; and

(2) “[a]ll of them could have been presented at trial or on appeal.” Id. (quoting

Wofford, 177 F.3d at 1245) (alteration omitted). We stated: “The actual holding of

the Wofford decision, which is undoubtedly correct, is simply that the savings


       11
          We added that a restrictive interpretation of the savings clause in § 2255(e) did not
violate the Suspension Clause of the Constitution. Id. at 1316-17. We relied primarily on the
Supreme Court’s decision in Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333 (1996), which held
that the AEDPA restrictions imposed on state prisoners did not violate the Suspension Clause.
Gilbert II, 640 F.3d at 1317.


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clause does not cover sentence claims that could have been raised in earlier

proceedings.” Id. (citing Wofford, 177 F.3d at 1244-45).

I.    Savings Clause May Permit Pure § 924(e)-Begay Error Claims

      In Gilbert II, the en banc Court also appended a footnote explaining what the

Wofford Court may have meant when it suggested that “the savings clause ‘may

conceivably’ apply to some sentencing claims in some circumstances where there

was a fundamental defect in sentencing that the prisoner had no opportunity to

have corrected before the end of his § 2255 proceeding.” Id. at 1319 n.20 (citing

Wofford, 177 F.3d at 1244-45). We explained in dicta that “the Wofford panel

may have had in mind . . . pure Begay errors, by which we mean errors in the

application of the ‘violent felony’ enhancement, as defined in 18 U.S.C.

§ 924(e)(2)(B), resulting in a higher statutory minimum and maximum sentence

under § 924(e).” Id. (emphasis added). We noted that a “Begay error in the

classification of a prior conviction that was used to impose an enhanced sentence

under § 924(e) would necessarily have resulted in the defendant being sentenced to

a term of imprisonment that exceeded what would have been the statutory

maximum without the error.” Id. Thus, a pure Begay error “would fit within the

government’s concession that the savings clause applies to errors that resulted in a

sentence beyond the statutory maximum that would have applied but for the error.”

Id. (emphasis added).


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      We reiterated that pure Begay error was not Gilbert’s claimed error. Id.

Gilbert’s claimed error was “that his sentence calculation involved an Archer error

in the application of § 4B1.1 of the guidelines, and that error did not result in a

sentence beyond the statutory maximum.” Id. What the en banc Court decided in

Gilbert II was that “the savings clause does not apply to sentencing errors that do

not push the term of imprisonment beyond the statutory maximum.” Id.

J.    Gilbert Was Not Actually Innocent of Being a Career Offender

      We also rejected Gilbert’s argument that he was actually innocent of being a

career offender under § 4B1.1 of the guidelines, explaining that Gilbert “was not

charged with, nor was he convicted of, being a career offender.” Id. at 1320. “If

guidelines enhancements were crimes, they would have to be charged in the

indictment and proven to the jury beyond a reasonable doubt.” Id. And, the

actual-innocence exception articulated in Sawyer v. Whitley, 505 U.S. 333, 112

S. Ct. 2514 (1992), did not apply to Gilbert because (1) his case was not a death

penalty case; (2) his claim was not a constitutional claim; (3) he would fail to meet

the requirement that, but for the error, he would have been statutorily ineligible for

the sentence he received; and (4) the narrow pre-AEDPA actual-innocence-of-

sentence exception did not survive after AEDPA was enacted. Id. at 1320-22.

      We pointed out in Gilbert II that, because of “the drug crimes for which he

was convicted, Gilbert was statutorily eligible for a sentence of between 10 years


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and life.” Id. at 1322 (emphasis added). And “[e]ven if the error in application of

the § 4B1.1 career offender enhancement were undone, Gilbert would still be

statutorily eligible for a sentence of 10 years to life.” Id. (emphasis added).

      In Gilbert II, because Gilbert’s sentence did not exceed his statutory

maximum penalty of life imprisonment, we emphasized we were not deciding

whether the savings clause would permit a prisoner to bring a § 2241 petition

claiming his sentence exceeds the statutory maximum penalty:

             We do not decide whether a claim that the sentencing
             guidelines were misapplied may be brought in a first time
             § 2255 motion. Nor do we decide if the savings clause in
             § 2255(e) would permit a prisoner to bring a § 2241
             petition claiming that he was sentenced to a term of
             imprisonment exceeding the statutory maximum. What
             we do decide is that the savings clause does not authorize
             a federal prisoner to bring in a § 2241 petition a claim,
             which would otherwise be barred by § 2255(h), that the
             sentencing guidelines were misapplied in a way that
             resulted in a longer sentence not exceeding the statutory
             maximum.

Id. at 1323 (emphasis added).

                     VII. WILLIAMS v. WARDEN (2013)
      Our third savings clause decision, Williams, did involve a prisoner’s claim

that his sentence exceeded the authorized statutory maximum penalty. Williams,

713 F.3d at 1334. In Williams, we faced the issue left open in Wofford and Gilbert

II—whether the savings clause reaches claims that a sentence exceeds the statutory

maximum. See id.

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      In 1998, the petitioner, Albert Williams, was tried and convicted on one

count of being a felon in possession of a firearm, in violation of § 922(g). See id.

at 1335. Williams was subject to the increased statutory penalty of life in prison

under § 924(e) due to his three prior Florida convictions: two for burglary of a

dwelling and one for robbery. Id. Williams was sentenced to 293 months’

imprisonment. Id. At trial and on direct appeal, Williams did not object to the

application of increased statutory penalties under § 924(e)(1) based on the theory

that his prior convictions did not qualify as “violent felonies” under § 924(e)(2)(B).

Id. In 1999, this Court affirmed Williams’s conviction and sentence. United

States v. Williams, 182 F.3d 936 (11th Cir. 1999) (unpublished table op.).

      In his first § 2255 motion, Williams argued that his counsel rendered

ineffective assistance by failing to object to the use of his burglary convictions as

predicate offenses to support his increased statutory penalties under § 924(e).

Williams, 713 F.3d at 1335. He also argued that the Florida crime of burglary of a

dwelling was not a “violent felony” under § 924(e)(2)(B). Id. The district court

denied Williams’s § 2255 motion and his request for a COA. Id. In 2004, this

Court denied a COA and his motion for reconsideration, noting that, even if

Williams’s burglary conviction did not qualify as a violent felony, his other prior

convictions supported the increased statutory penalties under § 924(e). Id.




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       After several other unsuccessful collateral attacks, 12 and after Begay was

decided, Williams filed another § 2255 motion. Id. at 1336. In that motion,

Williams argued that, under Begay, his burglary offenses did not qualify as violent

felonies for § 924(e) purposes and, therefore, his 293-month sentence exceeded the

10-year statutory maximum for his § 922(g)(1) felon-in-possession conviction. Id.

Denying relief, the district court concluded that it lacked jurisdiction over

Williams’s successive § 2255 motion because he had not moved this Court for

authorization to file a successive § 2255 motion. Id. Williams did not appeal. Id.

        In 2010, Williams filed a § 2241 habeas petition, arguing that the savings

clause in § 2255(e) allowed the district court to hear his § 2241 petition and rule

upon the Begay claim he raised in his previous § 2255 motion, i.e., that his prior

burglary convictions did not qualify as predicate felonies under § 924(e) and that,

as a result, his sentence was above the statutory maximum applicable to his

§ 922(g)(1) offense. Id. The district court dismissed Williams’s § 2241 petition.

Id. The government conceded in the district court and on appeal that the savings

clause applied to the type of sentencing claim Williams sought to bring in his




       12
          Specifically, relying on the Supreme Court’s decisions in Shepard and Taylor v. United
States, 495 U.S. 575, 110 S. Ct. 2143 (1990), Williams twice unsuccessfully sought relief under
Federal Rule of Civil Procedure 60(b) from the denial of his first § 2255 motion. Williams, 713
F.3d at 1336. Williams also filed an unsuccessful § 2241 petition based on Shepard and Taylor.
Id.


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§ 2241 petition—a claim of pure-Begay error in a § 924(e) sentence that exceeds

the statutory maximum penalty for a § 922(g) crime. Id.

A.    Savings Clause is Jurisdictional

      On appeal, this Court in Williams first addressed the question of whether we

could accept the government’s concession that the savings clause applied to

Williams’s claim. Id. at 1337-38. After a thorough discussion, we concluded that

“in enacting § 2255(e), Congress clearly restricted the subject-matter jurisdiction

of the federal courts” over § 2241 petitions. Id. at 1340. Because the savings

clause in § 2255(e) was jurisdictional, the government could not waive the issue of

its applicability. See id. at 1337-40.

B.    The Williams Court Explained Why Gilbert II Did Not Apply

      In determining whether the savings clause applied to Williams’s § 924(e)

claim, we first noted that Gilbert II “addressed—and explicitly limited its holding

to—circumstances where a federal prisoner sought to attack a potential

misapplication of the Sentencing Guidelines that resulted in a higher sentence, but

one that remained within the statutory maximum.” Id. at 1341. Gilbert II

“expressly reserved the issue of whether the savings clause applied to [Williams’s]

species of claim,” that is, claims that an erroneous application of § 924(e)

increased a sentence above the statutory maximum penalty. Id. We then




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concluded that Wofford, not Gilbert II, was “fatal to Williams’s attempt to pass

through the savings clause.” Id.

C.    Wofford and the Tension Between § 2255(e) and § 2255(h)

      In Williams, this Court stated that the Wofford Court approved of the

Seventh Circuit’s Davenport because that approach “addressed and harmonized

two serious concerns that are in some tension with one another.” Id. On the one

hand, “the essential function of habeas corpus is to give a prisoner a reasonable

opportunity to obtain a reliable judicial determination of the fundamental legality

of his conviction and sentence, and it may be necessary to apply the savings clause

to some claims inadequately addressed in a first § 2255 motion in order to satisfy

the Constitution’s Suspension Clause.” Id. (internal quotation marks and alteration

omitted). On the other hand, “letting the savings clause apply too broadly would

eviscerate [AEDPA’s] bar on second or successive motions, which was intended to

limit most prisoners to one clean shot at postconviction relief.” Id.

      We reasoned in Williams that “the savings clause cannot simply mean that

every § 2255 motion that appears to have been incorrectly decided based on

subsequent Supreme Court precedent may be revisited through a § 2241 habeas

petition; if it did, then the bar on second or successive motions would effectively

be written out of the statute . . . .” Id. “Yet by the same token, the circumstances

delineated in [AEDPA’s] § 2255(h)(1) and (2) cannot be the only instances in


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which the § 2255 remedy is inadequate; if that were true, then it would be the

savings clause that was rendered meaningless. Id. at 1342-43 (emphasis added).

We stated that a statute should not be interpreted “in such a way that any part of it

becomes mere surplusage.” Id. at 1343.

      The Williams Court observed that Wofford, in dicta, described two different

kinds of challenges to which the savings clause may conceivably apply that are not

covered by § 2255(h) in AEDPA. Id. As discussed above, these two

circumstances are: (1) when a retroactively-applicable Supreme Court’s decision

establishes that the petitioner was convicted of a “nonexistent offense,” and circuit

law squarely foreclosed the petitioner from raising that claim at “trial, [direct]

appeal, or first § 2255 motion”; and (2) when a “fundamental defect in sentencing”

occurred, and, again, the petitioner had no “opportunity to obtain judicial

correction of that defect earlier.” Id. (emphasis added) (quoting Wofford, 177 F.3d

at 1244) (internal quotation marks omitted).

      Referring to these two circumstances, the Williams Court stated: “This

interpretation of the savings clause harmonizes [the savings clause] with the bar on

second or successive motions [in AEDPA] while also avoiding constitutional

questions under the Suspension Clause.” Id.

      This Court in Williams concluded that the Wofford decision “establishes

two necessary conditions—although it does not go so far as holding them to be


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sufficient—for a sentencing claim to pass muster under the savings clause.” Id.

“First, the claim must be based upon a retroactively applicable Supreme Court

decision.” Id. Second, “the Supreme Court decision must have overturned a

circuit precedent that squarely resolved the claim so that the petitioner had no

genuine opportunity to raise it at trial, on appeal, or in his first § 2255 motion.” Id.

(emphasis added).13

       This Court in Williams explained why, under the second condition, the

savings clause requires a prisoner’s § 2241 claim to have been squarely foreclosed

by prior Circuit precedent at the time of his trial, direct appeal, and first § 2255

motion. Id. at 1347. We stated that, if an issue had not been decided against a

prisoner’s position by prior precedent, then his first § 2255 motion “would have

been an adequate procedure for testing his claim.” Id. “The courts would have

heard the claim and decided its merits, unlike in the case where adverse precedent

already existed and thus stare decisis would make us unwilling to listen to him.”

Id. (internal quotation marks and ellipses omitted).

       In Williams, we cautioned, however, that an incorrect decision on a non-

foreclosed claim does not render a proceeding inadequate or ineffective. Id. at


       13
          In a footnote, we emphasized again that “the petitioner must point to then-binding
circuit precedent, subsequently overruled by the Supreme Court, that barred his claim during his
earlier proceedings. Otherwise, there was nothing preventing him from raising his claim on
direct appeal or in his first § 2255 motion.” Id. at 1344 n.4.


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1348. We explained that, “simply because a procedurally adequate test may get

the answer wrong . . . cannot mean that a petitioner is entitled to utilize the savings

clause to have his claim reevaluated still again in light of novel Supreme Court

precedent.” Id. We reiterated that what makes the § 2255 proceeding inadequate

is when “erroneous circuit precedent foreclosed [the petitioner’s] argument” at

trial, direct appeal, or in his first § 2255 proceeding. Id.

      Similar to the Williams analysis, we observe that simply because a

defendant faces a procedural bar in his first § 2255 motion—such as a limitations

period or procedural default—this also does not render the first § 2255 motion

inadequate or ineffective. Otherwise, a defendant could sit on his § 924(e) claim at

trial and direct appeal, have it procedurally barred in a first § 2255 motion, but

much later raise it in a § 2241 petition through the § 2255(e) portal. What makes

the § 2255 proceeding “inadequate or ineffective” for petitioner Bryant is that he

had no “genuine opportunity” to bring his § 924(e) claim because Circuit precedent

squarely foreclosed that claim throughout his trial, direct appeal, and first § 2255

motion. See Williams, 713 F.3d at 1343, 1348.

D.    Circuit Precedent Did Not Foreclose Williams’s Burglary Claim

      In Williams, we concluded that Williams could not “show that this Circuit’s

law foreclosed him from raising an objection to the treatment of his two Florida

burglary convictions [under Fla. Stat. 810.02] as violent felonies under the


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ACCA.” Id. at 1343-44. During Williams’s “direct and collateral attacks” from

1998 to 2004, no Eleventh Circuit precedent “squarely held that burglary of a

dwelling, as defined in Fla. Stat. § 810.02, was a violent felony for ACCA

purposes.” Id. at 1344. “[I]t was an open question in this Circuit whether § 810.02

might categorically constitute a violent felony . . . under the so-called residual

clause . . . [in] § 924(e)(2)(B)(ii).” Id. at 1345. “Only after both Williams’s direct

appeal and his collateral attack did this Court decide” that burglary of a dwelling

under Florida law qualified as a violent felony under the last clause in

§ 924(e)(2)(B)(ii). Id.

      The Williams Court concluded that “no Circuit precedent on the books

during Williams’s collateral attack foreclosed his argument and rendered his §

2255 motion an ineffective test of his claims.” Id. (emphasis added). Stated

differently, “there was no adverse precedent at the time of Williams’s § 2255

motion that would have made us unwilling to listen to his claim.” Id. at 1347.

Even if Williams’s initial § 2255 proceeding had resulted in the wrong answer, this

was “not dispositive of the question of whether Williams now may pursue relief

through the savings clause.” Id. at 1348. “[W]hat is dispositive is that his claim

was not foreclosed at the time by binding Eleventh Circuit precedent that Begay

overruled or abrogated.” Id.




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      In Williams, we rejected the petitioner’s attempt to use Begay as the

“‘circuit law-busting, retroactively applicable Supreme Court decision’” demanded

by Wofford. Id. at 1346. We explained that, for Begay to be “circuit-law busting”

in the savings clause context, “we must find that Begay overturned circuit

precedent specifically addressing the claim Williams now asserts [in his § 2241

petition]—namely, that Fla. Stat. § 810.02 [the burglary statute] is not a violent

felony for ACCA purposes.” Id. at 1347 (emphasis added) (internal quotation

marks omitted).

      Begay was not “circuit law-busting” in Williams’s case because (1) Begay

“changed the analytical framework for determining whether a given state offense is

a violent felony at a high level of abstraction” and “did not abrogate all of this

Court’s pre-Begay violent-felony jurisprudence,” (2) Begay would not have

necessarily abrogated any Circuit precedent holding that Florida’s burglary statute

was a violent felony; and, (3) in any event, “there was no circuit precedent for

Begay to bust” at the time Williams’s first § 2255 proceeding ended in 2004. Id. at

1345, 1347 (emphasis added).

      For all of these reasons, we determined that “Williams’s first § 2255 motion

was not ‘inadequate or ineffective to test the legality’” of his increased statutory

penalties under § 924(e). Id. at 1348 (quoting § 2255(e)).




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E.    Williams Did Not Show Miscarriage of Justice

      We also rejected Williams’s argument that he could open the savings clause

portal using an alternative, miscarriage-of-justice standard set forth in Davis v.

United States, 417 U.S. 333, 346-47, 94 S. Ct. 2298, 2305 (1974) (holding that,

where a precedent later establishes that the prisoner was convicted and punished

“for an act that the law does not make criminal,” he may seek collateral relief in his

first § 2255 motion despite losing the issue on direct appeal). Williams, 713 F.3d

at 1345. First, we reasoned that Williams was not convicted of a “nonexistent

offense,” in Wofford’s sense of the term, because he was “not asserting that he is

‘actually innocent’ of either his possession of a firearm offense or his underlying

burglary offenses, nor could he.” Id. at 1345-46. “[H]e is asserting only legal

innocence: that his burglary convictions should not have been considered violent

felonies under the ACCA.” Id. at 1346.

      Second, in Williams we said that Davis involved “a different issue: whether

a claim ‘unsuccessfully litigated on direct review’ could be ‘asserted on collateral

attack.’” Id. (quoting Davis, 417 U.S. at 342, 94 S. Ct. at 2303 (ellipses omitted

and alteration adopted)). In Davis, the Supreme Court held that, “where a

precedent later establishes that the prisoner was convicted and punished ‘for an act

that the law does not make criminal,’ he may seek collateral relief in his first

§ 2255 motion despite losing the issue on direct appeal.” Id. (quoting Davis, 417


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U.S. at 346-47, 94 S. Ct. at 2305). But, “Davis did not address whether the savings

clause permits what is effectively a second or successive motion under the

miscarriage of justice standard.” Id.

      The Williams Court concluded that the miscarriage-of-justice standard in

Davis was inapplicable to Williams’s sentencing claim concerning the savings

clause. Id.

      VIII. SYNTHESIS OF WOFFORD, GILBERT II, & WILLIAMS
      Wofford, Gilbert II, and Williams guide us on what the statutory terms in

§ 2255(e)’s savings clause mean and how to read § 2255(e) in a way that does not

eviscerate or undermine § 2255(h)’s restrictions on second or successive § 2255

motions but also affords some meaning to the savings clause.

      To show his prior § 2255 motion was “inadequate or ineffective to test the

legality of his detention,” Bryant must establish that (1) throughout his sentencing,

direct appeal, and first § 2255 proceeding, our Circuit’s binding precedent had

specifically addressed Bryant’s distinct prior state conviction that triggered

§ 924(e) and had squarely foreclosed Bryant’s § 924(e) claim that he was

erroneously sentenced above the 10-year statutory maximum penalty in § 924(a);

(2) subsequent to his first § 2255 proceeding, the Supreme Court’s decision in

Begay, as extended by this Court to Bryant’s distinct prior conviction, overturned

our Circuit precedent that had squarely foreclosed Bryant’s § 924(e) claim; (3) the


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new rule announced in Begay applies retroactively on collateral review; (4) as a

result of Begay’s new rule being retroactive, Bryant’s current sentence exceeds the

10-year statutory maximum authorized by Congress in § 924(a); and (5) the

savings clause in § 2255(e) reaches his pure § 924(e)-Begay error claim of illegal

detention above the statutory maximum penalty in § 924(a).

       We now explain why Bryant has satisfied each of these requirements.

                          IX.    BRYANT’S § 924(e) CLAIM
A.     Foreclosure by Circuit Precedent

       As to the first requirement, Bryant has carried his burden to show that his

specific § 924(e) claim in his § 2241 petition was squarely foreclosed by binding

Circuit precedent throughout his sentencing in 2002, direct appeal in 2002, and

first § 2255 proceeding in 2005. Throughout that time, the law in this Circuit

squarely held that a concealed-firearm offense under Fla. Stat. § 790.01 was a

“violent felony” under § 924(e). See Hall, 77 F.3d at 401. 14 As stated in Williams,

what makes a § 2255 motion inadequate or ineffective is when “erroneous circuit

precedent foreclosed [the petitioner’s] argument.” Williams, 713 F.3d at 1348.

Because our Circuit precedent in Hall squarely foreclosed Bryant’s § 924(e) claim,

       14
          Throughout the record, as well as in our relevant case law, the terms “concealed
weapon” and “concealed firearm” are used interchangeably. The term “concealed firearm” is
more appropriate, however. Under the pertinent Florida statute, carrying a concealed “weapon”
is merely a misdemeanor, while carrying a concealed “firearm” is a third-degree felony. Fla.
Stat. § 790.01(1)-(2). According to the indictment and the PSI, Bryant was convicted of carrying
a concealed firearm.


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he had no “genuine” procedural opportunity to test whether his Florida concealed-

firearm crime was a “violent felony” that could be used as a predicate conviction to

increase his statutory maximum penalty under § 924(e). See id. (emphasis added).

Williams tells us that, before Begay, “stare decisis would make us unwilling . . . to

listen to him.” See id. at 1347 (internal quotation marks omitted).

B.    Begay’s Circuit-Busting Effect

      As to the second requirement, Bryant has established that Begay, as

extended by Archer and Canty, busted our precedent in Hall that had foreclosed his

§ 924(e) claim about his Florida concealed-firearm conviction.

      We recognize that this Court in Williams stated that Begay “is not circuit

law busting in Wofford’s sense of the term” because the Supreme Court in Begay

had only “changed the analytical framework for determining whether a given state

offense is a violent felony at a high level of abstraction by crafting its ‘purposeful,

violent, and aggressive’ test.” Id. The Williams Court explained that Begay had

not abrogated “all of this Court’s pre-Begay violent felony jurisprudence,” and as

to Williams specifically, it was “not at all clear that Begay would have abrogated

any circuit precedent holding § 810.02 [burglary] was a violent felony.” Id. In

other words, Begay’s abstract statutory interpretation of § 924(e)’s residual clause

in the context of its review of New Mexico’s DUI statute did not necessarily

dictate that Williams’s distinct prior Florida burglary conviction could no longer


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qualify as a predicate violent felony. See id. Under Williams’s analysis, Circuit

precedent would still “squarely foreclose” any Begay-based sentencing claim

unless and until Begay’s holding was extended to a discrete situation involving a

specific prior state conviction. 15 Begay essentially provided the basic legal

foundation for raising a new sentencing challenge based on the Supreme Court’s

interpretation of the language of § 924(e)(2)(B)(ii).

       Unlike the petitioner in Williams, Bryant has shown that our Court has

already extended Begay’s holding to his distinct prior state conviction, to wit, his

§ 790.01 concealed-firearm conviction in Florida. In Archer, this Court concluded

that under Begay a concealed-firearm offense was not a “crime of violence” under

the guidelines. See Archer, 531 F.3d at 1352. Subsequently, in United States v.

Canty, 570 F.3d 1251, 1254 (11th Cir. 2009), on direct appeal, the defendant

expressly argued (and the government acknowledged) that, after Begay and

Archer, a Florida conviction for carrying a concealed firearm should not be treated

as a § 924(e) violent felony. After review in Canty, we agreed and held that


       15
          We note that, when the Supreme Court announces new rules of law, courts are bound
by those decisions from the date of the decision. However, because the Supreme Court’s
decision in Begay did not clearly abrogate all of this Court’s pre-Begay violent felony
jurisprudence, we do not decide the case wherein a rule articulated by the Supreme Court clearly
overrules or undermines our prior precedent such that a subsequent Canty-like decision is
required to express the circuit-busting effect of the Supreme Court’s decision. We only decide,
for the purposes of this case, that the DUI-related rule pronounced in Begay was so unrelated to
the concealed-firearm offense here that a decision of this Court (or the Supreme Court) was
required to show the Begay decision busted our precedent in Hall.


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“carrying a concealed weapon is not a violent felony that may be used as a

predicate conviction to enhance a defendant’s sentence under [§ 924(e)].” Id. at

1255.

        While Canty did not expressly mention our 1996 decision in Hall, Canty’s

holding regarding Florida’s concealed-firearm offense directly implies that our

precedent in Hall was undermined to the point of abrogation by Begay and Archer.

        In addition to showing that Archer and Canty busted our precedent in Hall,

Bryant has also shown that this “busting” did not occur until after Bryant’s trial,

direct appeal, and initial § 2255 proceedings had ended. While Begay may have

undermined the test we had used to evaluate whether a specific state conviction

qualified as a violent felony under § 924(e), Circuit precedent still squarely

foreclosed Bryant’s current § 924(e) claim until we then applied those abstract

principles from Begay specifically to Florida’s concealed-firearm offense in

Archer and Canty. Thus, the issuance of our decisions in Archer and Canty mark

the correct point at which Bryant’s current § 924(e) claim was no longer “squarely

foreclosed” by Circuit precedent, as required under § 2255(e)’s savings clause, and

our Hall precedent was busted.16


        16
         We point out something we are expressly not deciding today. Bryant was sentenced in
the Middle District of Florida, Tampa division, and properly filed his § 2241 petition in his
incarceration district, the Middle District of Florida, Ocala division. This Circuit’s precedent
governed Bryant’s initial sentence, his § 2255 motions, and his § 2241 petition. We have no


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       Before moving on and for completeness, we add that the recent Supreme

Court decision in Sykes v. United States, 564 U.S. __, 131 S. Ct. 2267 (2011) does

not affect our holdings in Archer in 2008 and Canty in 2009 regarding Florida’s

concealed-firearm offense. Sykes “substantially circumscribed the reach of Begay

so that its similar-in-kind requirement no longer applies to intentional crimes like

Fla. Stat. § 810.02” (burglary). Williams, 713 F.3d at 1347 n.6. For intentional

crimes, the central inquiry under § 924(e)(2)(B)(ii) is “whether the offense

‘presents a serious potential risk of physical injury to another’ comparable to the

risk posed by the ACCA’s enumerated crimes.” Id. (emphasis added) (quoting

Sykes, 564 U.S. at __, 131 S. Ct. at 2273). Sykes reserved Begay’s “purposeful,

violent, and aggressive” inquiry for crimes with a mens rea of strict liability,

negligence, or recklessness. Sykes, 564 U.S. at __, 131 S. Ct. at 2275-76; United

States v. Chitwood, 676 F.3d 971, 979 (11th Cir. 2012) (“Sykes makes clear that

Begay’s ‘purposeful, violent, and aggressive’ analysis does not apply to offenses

that are not strict liability, negligence, or recklessness crimes . . . .”). In Sykes, the

Supreme Court concluded that intentional vehicular flight under Indiana law was a




occasion to address or decide any issues specific to another scenario, where the § 2241 petition is
filed in this Circuit, but the § 2241 petitioner was originally sentenced in another circuit under
that circuit’s law and his first § 2255 motion would thus have been filed in another circuit.


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“violent felony” under § 924(e)(2)(B)(ii). Sykes, 564 U.S. at __, 131 S. Ct. at

2270.

        Unlike intentional vehicle flight, carrying a concealed firearm under Florida

law is akin to a strict-liability crime and, therefore, continues to fall under the

“purposeful, violent, and aggressive” framework announced in Begay. See

Dorelus v. Florida, 747 So. 2d 368, 371 (Fla. 1999) (“[T]he specific intent of the

defendant to conceal the weapon is not an element of the [Fla. Stat. § 790.01]

crime . . . .”); see also Archer, 531 F.3d at 1351 (“[The] lack of required specific

intent makes carrying a concealed weapon [under Fla. Stat. § 790.01] more similar

to drunk driving . . . .”). Thus, Sykes did not undermine Begay, Archer, and Canty

insofar as they apply to Florida’s concealed-firearm offense.

C.      Begay Applies Retroactively

        As to the third requirement, Bryant has established that the Supreme Court’s

decision in Begay applies retroactively. Although our precedent in Hall was

busted, Bryant still cannot rely on Begay’s new rule in any collateral review unless

the rule announced in Begay applies retroactively. We previously suggested,

tangentially, that the Begay decision may apply retroactively to cases on collateral

review in a first post-conviction motion context; however, we have never held so

expressly. See Zack v. Tucker, 704 F.3d 917, 925 (11th Cir.) (en banc) (discussing

the § 2244(d)(1) statute of limitations in a § 2254 case), petition for cert. filed,


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(U.S. June 7, 2013) (No. 12-10693).17 We now hold that the new rule announced

in Begay applies retroactively for purposes of a first § 2255 motion and the § 2241

petition Bryant seeks to bring under § 2255(e).

       When the Supreme Court announces a new rule, “a person whose conviction

is already final may not benefit from the decision in a habeas or similar

proceeding,” Chaidez v. United States, 568 U.S. __, __, 133 S. Ct. 1103, 1107

(2013), with two exceptions. First, “[n]ew substantive rules generally apply

retroactively” on collateral review, including “decisions that narrow the scope of a

criminal statute by interpreting its terms” and “constitutional determinations that

place particular conduct or persons covered by the statute beyond the State’s power

to punish.” Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S. Ct. 2519, 2522

(2004). The Supreme Court explained that such substantive rules apply

retroactively “because they necessarily carry a significant risk that a defendant

stands convicted of an act that the law does not make criminal or faces a

punishment that the law cannot impose upon him.” Id. at 352, 124 S. Ct. at

2522-23 (emphasis added) (internal quotation marks omitted).

       17
           We recognize that, in Spencer v. United States, 727 F.3d 1076 (11th Cir. 2013), this
Court applied Begay retroactively to a first § 2255 motion based on the government’s
concession, stating: “The government agreed at oral argument that Begay applies retroactively,
as it has in other cases. Given that concession, we apply Begay here.” Spencer, 727 F.3d at
1096 (internal citations omitted) (citing Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct. 948,
953 (1994) (“[A] federal court may, but need not, decline to apply Teague[’s nonretroactivity
analysis] if the [government] does not argue it.”)). In this case, we rule on the merits of the
retroactivity issue.


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      A new rule is procedural, not substantive, if it “regulate[s] only the manner

of determining the defendant’s culpability.” Id. at 353, 124 S. Ct. at 2523. Such

procedural rules “do not produce a class of persons convicted of conduct the law

does not make criminal, but merely raise the possibility that someone convicted

with use of the invalidated procedure might have been acquitted otherwise.” Id. at

352, 124 S. Ct. 2523. New procedural rules will not apply retroactively unless

they are “watershed rules of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding.” Id. (internal quotation marks

omitted); see also Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1076

(1989) (plurality opinion).

      “That a new procedural rule is fundamental in some abstract sense is not

enough; the rule must be one without which the likelihood of an accurate

conviction is seriously diminished.” Schriro, 542 U.S. at 352, 124 S. Ct. at 2523

(internal quotation marks omitted). “This class of rules is extremely narrow,” id.,

so much so that nine years ago the Supreme Court stated it was unlikely that any

more “watershed” procedural rules would emerge in the future, id.; see Howard v.

United States, 374 F.3d 1068, 1080 (11th Cir. 2004) (“[T]he second Teague

exception is so tight that very few new rules will ever squeeze through it.”).

      The new rule announced in Begay is substantive rather than procedural

because it “narrow[ed] the scope” of § 924(e) “by interpreting its terms,”


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specifically, the term “violent felony.” See Schriro, 542 U.S. at 351-52, 124 S. Ct.

at 2522. As discussed above, Begay held that, as to strict liability, negligence, or

recklessness crimes, the last clause in § 924(e)(2)(B)(ii) applies only to crimes

“roughly similar, in kind as well as in degree of risk posed,” to the offenses

enumerated in § 924(e)(2)(B)(ii) (burglary, arson, extortion, or crimes involving

the use of explosives). Begay, 553 U.S. at 142-43, 128 S. Ct. at 1584-85 (internal

quotation marks omitted). Begay thus narrowed the class of people who are

eligible for the § 924(e) increased statutory maximum of life for a § 922(g) crime.

As a result, a significant risk exists that some defendants, like Bryant, who were

sentenced before Begay have erroneously received the increased penalties under

§ 924(e) and now are serving prison terms above the otherwise applicable statutory

maximum of 10 years—“a punishment that the law cannot impose” upon them.

See Schriro, 542 U.S. at 352, 124 S. Ct. at 2522-23.

      Other circuits also have concluded (albeit in the context of a first § 2255

motion) that Begay announced a substantive new rule that applies retroactively.

See Jones v. United States, 689 F.3d 621, 625-26 (6th Cir. 2012) (explaining that,

although Begay’s new rule did not alter the underlying elements of the crime, the

new rule nonetheless “involved the substantive construction of a criminal statute”

that determined the maximum lawful punishment certain classes of defendants may

receive) (internal quotation marks and alteration omitted)); Welch v. United States,


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604 F.3d 408, 413-15 (7th Cir. 2010) (noting that Begay “did not narrow any of the

elements of a criminal offense” and that, “[w]hen the elements of a crime are

narrowed, that change serves to prohibit any punishment for the conduct”; but

Begay nonetheless altered the statutory maximum amount of punishment that the

law can impose for a § 922(g) crime, and thus Begay “prohibits some of that

punishment”).

      Before leaving retroactivity, one clarification is needed. The Supreme

Court’s above jurisprudence about retroactivity generally is quite different from

the stricter, statutory retroactivity requirements in 28 U.S.C. § 2255(h), which

govern second or successive § 2255 motions. To qualify as a retroactive “new rule

of constitutional law” under § 2255(h), “the Supreme Court itself must make the

rule retroactive.” In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005). “[I]t is

not enough that this Court may retroactively apply a new rule of constitutional law

or hold that a new rule of constitutional law satisfies the criteria for retroactive

application set forth by the Supreme Court . . . .” Id.

      The Fifth Circuit in In re Bradford concluded that Begay was not retroactive

for purposes of § 2255(h) because there were no Supreme Court cases “declaring”

it to be retroactive. In re Bradford, 660 F.3d 226, 231 (5th Cir. 2011). While that

is true, the retroactivity issue here is not about a second or successive motion under

§ 2255(h). Rather, the issue here is whether Bryant can bring a § 2241 petition


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under § 2255(e) and whether Begay applies retroactively to a § 2241 petition,

which we conclude it does.

D.     Bryant’s Sentence Exceeds the Statutory Maximum

       As to the fourth requirement, Bryant has established that his sentence

exceeds the authorized statutory maximum penalty. As a result of the retroactive

decision in Begay and our decisions in Archer and Canty, Bryant’s concealed-

firearm conviction under Fla. Stat. § 790.01 is not a “violent felony” within the

definition of § 924(e)(2)(B). This means that Bryant does not have the three

predicate felonies required to increase his statutory maximum sentence from

10 years in § 924(a)(2) to life imprisonment in § 924(e). Bryant’s 235-month

sentence thus exceeds his statutory maximum penalty of 10 years for his 922(g)(1)

offense. Bryant has proven a “pure Begay error,” as aptly denominated in

Gilbert II.

       Before leaving the “statutory maximum” question, we address the

government’s argument that Bryant’s prior 1988 burglary conviction could be used

as a third § 924(e) predicate felony and thus his sentence does not exceed the

statutory maximum penalty.

       We disagree because the government waived this burglary issue at the initial

sentencing. At sentencing, the district court found that Bryant had at most three

qualifying predicate convictions, which were the concealed-firearm conviction and


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the two drug convictions listed in the indictment. The government never objected

to that finding by the district court. Despite repeated opportunities to do so at

sentencing, the government also never suggested at any point that Bryant’s 1988

burglary conviction could serve as a § 924(e)-qualifying felony. At no time during

Bryant’s direct criminal proceedings did the government ever rely on the burglary

conviction as a predicate felony for § 924(e) purposes. See Canty, 570 F.3d at

1257 (stating that, while the government was “entitled to an opportunity to offer

evidence and seek rulings from the sentencing court in support of” a § 924(e)

application,” the government was “entitled to only one such opportunity, . . . it had

that opportunity at the sentencing hearing,” and “when given the opportunity, the

Government failed to voice any objection”); see also United States v. Petite, 703

F.3d 1290, 1292 n.2 (11th Cir. 2013) (“The government cannot offer for the first

time on appeal a new predicate conviction in support of an enhanced ACCA

sentence.”), petition for cert. filed, (U.S. June 13, 2013) (No. 12-10831).

Therefore, we deny the government’s request to substitute the burglary conviction.

                  X.     SCOPE OF THE SAVINGS CLAUSE
      Because Bryant has met the above four requirements derived from Wofford,

Gilbert II, and Williams, we now examine the fifth requirement which involves the

issue left open in Gilbert II. That is, whether the savings clause reaches not only

an actual-innocence claim, but also Bryant’s sentencing claim that his § 924(e)-


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erroneous sentence exceeds the statutory maximum penalty in § 924(a) for his

§ 922(g) crime.

A.     Other Circuits’ Decisions

       There is a deep and mature circuit split on the reach of the savings clause.

The Tenth Circuit has rejected the possibility of savings-clause relief for both

actual-innocence claims and all sentencing claims, regardless of whether the

petitioner’s claim was foreclosed by circuit precedent at the time of his first § 2255

motion. See Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (“The relevant

metric . . . is whether a petitioner’s argument challenging the legality of his

detention could have been tested in an initial § 2255 motion.”), cert. denied, 132

S. Ct. 1001 (2012). The only possibility left open by the Tenth Circuit in Prost is

that the savings clause may be available “when the application of § 2255(h)’s bar

against a second or successive motion for collateral review would seriously

threaten to render the § 2255 remedial process unconstitutional,” id. at 593,

although the Tenth Circuit did not elaborate upon what circumstances would be

serious enough to trigger this concern.

       In contrast, eight circuits have held definitively that the savings clause

allows a district court to entertain an actual-innocence claim. 18 See Poindexter v.


       18
         The circuits differ with respect to what constitutes actual innocence. But, we need not
address that distinction to resolve Bryant’s case.


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Nash, 333 F.3d 372, 378 (2d Cir. 2003), cert. denied, 124 S. Ct. 1486 (2004); In re

Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997); In re Jones, 226 F.3d 328, 333-34

(4th Cir. 2000); Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th Cir.

2001); United States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001), cert. denied,

122 S. Ct. 493 (2001); Brown v. Caraway, 719 F.3d 583, 586-87 (7th Cir. 2013);

Marrero v. Ives, 682 F.3d 1190, 1192, 1194-95 (9th Cir. 2012), cert. denied, 133 S.

Ct. 1264 (2013); In re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002); see also Trenkler v.

United States, 536 F.3d 85, 99 (1st Cir. 2008), cert. denied, 129 S. Ct. 1363 (2009).

These circuits are split on whether sentencing claims may open the savings-clause

portal.

      The Second, Fourth, and Fifth Circuits limit the reach of the savings clause

to actual-innocence claims. In those circuits, no type of sentencing claim justifies

savings-clause relief. See Poindexter, 333 F.3d at 378 (“The application not only

must show that relief is procedurally unavailable under § 2255, but also must assert

a claim of actual innocence . . . .”); Reyes-Requena, 243 F.3d at 903-04 (stating the

savings clause is available only for an actual-innocence claim based on a Supreme

Court decision that has overturned circuit precedent foreclosing the petitioner’s

claim); United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008) (“Fourth

Circuit precedent has likewise not extended the reach of the savings clause to those

petitioners challenging only their sentence.”). In the Second, Fifth, and Tenth


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Circuits, prisoners cannot mount a savings-clause challenge to any erroneous

sentencing enhancement, whether above or within the otherwise applicable

statutory maximum penalty.

      The First, Sixth, and Ninth Circuits appear to be in line with this Court’s

jurisprudence. Those circuits (1) have held that the savings clause is available for

actual-innocence claims, (2) have rejected—as this Court did in Gilbert II—the

possibility that the savings clause is available for sentencing claims alleging that

the district court misapplied the guidelines provisions but imposed a sentence

within the statutory maximum penalty, and (3) have reserved the issue regarding

sentences above the statutory maximum penalty. See Marrero, 682 F.3d at 1194-

95 (noting that “some courts have suggested that a petitioner may qualify for the

escape hatch if he received a sentence for which he was statutorily ineligible”—in

other words, beyond the statutory maximum—but reserving the question of

“whether to endorse” this exception); Trenkler, 536 F.3d at 99 (petitioner’s claim

was “incompatible with engagement of the savings clause” because it did not

“charge that [the] sentence is beyond the statutory maximum for the crimes of

conviction” or assert actual innocence); Peterman, 249 F.3d at 462 (“Courts have

generally declined to collaterally review sentences that fall within the statutory

maximum.”).




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      The Seventh Circuit has taken the most permissive position. See Brown,

719 F.3d 583. Rejecting this Court’s Gilbert II, the Seventh Circuit held that “a

misapplication of the mandatory career offender Guideline presented a cognizable

non-constitutional claim . . . [that] resulted in a miscarriage of justice” and thus is

“a ‘fundamental sentencing defect’ justifying successive § 2241 relief under

Davenport.” Id. at 587. Brown’s secondary import is that the Seventh Circuit also

will consider savings-clause claims alleging an erroneous application of increased

statutory maximums under § 924(e).

      The Eighth Circuit has the least developed savings-clause jurisprudence and

has neither affirmed nor rejected the savings clause’s availability for either actual-

innocence or sentencing claims. See Abdullah v. Hedrick, 392 F.3d 957, 960-64

(8th Cir. 2004) (canvassing other circuits’ case law but ultimately concluding that

the prisoner in that case had had an “unobstructed procedural opportunity” to

obtain review of his claim in his first § 2255 motion), cert. denied, 125 S. Ct. 2984

(2005).

      Our review of other circuit’s law shows most circuits agree about actual-

innocence claims but are far from uniform as to whether sentencing claims can

pass through the narrow savings-clause portal. And, even those who do not allow

guidelines-misapplication claims within the statutory maximum penalty to proceed

under § 2255(e) (as we held in Gilbert II), have not answered the § 2255(e)


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questions as to a sentence above the statutory maximum penalty. We now must do

so.

B.    Why § 2255(e) Reaches Bryant’s Statutory-Maximum Claim

      As discussed above, all of our cases on point—Wofford, Gilbert II, and

Williams—kept open the possibility that the savings clause would allow relief in

cases of some limited type of a fundamental sentencing defect. In Gilbert II, we

hinted in “footnote-dicta” that such a “fundamental defect in sentencing” may

potentially include an erroneous application of the “violent felony” term in

§ 924(e) that results in a sentence above the statutory maximum penalty, as shown

above. See Gilbert II, 640 F.3d at 1319 n.20. For the following reasons, we now

hold that § 2255(e) reaches Bryant’s pure § 924(e)-Begay claim of illegal detention

above the statutory maximum penalty in § 924(a).

      First, we have never doubted that the savings clause, at the very least,

applies to actual-innocence claims due to a conviction for a non-existent offense.

See Wofford, 177 F.3d at 1244; Gilbert II, 640 F.3d at 1318-19; Williams, 713

F.3d at 1342-43. After all, the savings clause must apply to some claims not

covered by § 2255(h); otherwise, the savings clause would be “rendered

meaningless.” See Williams, 713 F.3d at 1342-43.

      Second, the plain text of § 2255(e) supports the proposition that the savings

clause should not be restricted simply to actual-innocence claims. The savings


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clause makes § 2241 available to a prisoner whose first § 2255 motion was

“inadequate or ineffective” to test the legality of his “detention.” 28 U.S.C.

§ 2255(e) (emphasis added). Congress’s use of the term “detention” is highly

significant to the scope of the savings clause. In other sections of § 2255 and the

related statutes, Congress uses different terminology when it wishes to restrict the

prisoner’s universe of possible challenges solely to actual-innocence claims.

      For instance, AEDPA contains two exceptions to the prohibition on second

or successive § 2255 motions. One of those exceptions allows a claim based on

“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.” 28

U.S.C. § 2255(h)(1) (emphasis added); In re Dean, 341 F.3d 1247, 1248 (11th Cir.

2003) (rejecting a federal prisoner’s request for a second or successive § 2255

motion raising a sentencing claim because § 2255’s newly discovered evidence

exception “does not apply to claims asserting sentencing error”). AEDPA’s

restriction on second or successive § 2254 petitions for state prisoners contains a

similar exception. See 28 U.S.C. § 2244(b)(2)(B)(ii) (permitting a second or

successive petition only where, among other things, “no reasonable factfinder

would have found the applicant guilty of the underlying offense” (emphasis

added)). The use of the term “detention” in the savings clause suggests that


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Congress intended for at least some species of sentencing claims (other than

actual-innocence claims) to justify savings-clause relief.

      Section 2255’s structure also favors opening the savings-clause portal to

claims of an erroneous § 924(e) sentence above the authorized statutory maximum

in § 924(a). As this Court explained in Williams, the structure of § 2255 provides

two distinct escape hatches or pressure valves (or whatever metaphor one wants to

deploy) that a prisoner may use to overcome the bar on second or successive

§ 2255 motions. The first is the savings clause in § 2255(e), and the second is the

limited right for second or successive motions found in § 2255(h). To harmonize

the two, and to ensure that § 2255 does not run afoul of the Suspension Clause, we

interpret the savings clause to cover some claims that § 2255(h) does not, and vice

versa. See Williams, 713 F.3d at 1342-43.

      Section 2255(h) is by far the clearer of the two sections and offers two kinds

of claims for which a second or successive § 2255 motion is possible: (1) a claim

of actual innocence based on newly discovered evidence, as discussed above, 28

U.S.C. § 2255(h)(1); and (2) a claim based on “a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable,” 28 U.S.C. § 2255(h)(2). The purpose behind § 2255(h),

to frame it simply, is to make sure that two kinds, and only two kinds, of very

serious, substantive claims will receive review on the merits regardless of the


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posture of the prisoner’s case. Section 2255(h) focuses on the substantive nature

of the claim.

      Section 2255(e) has a different thrust. The savings clause is concerned not

only with the substantive basis for the claim, but also with the procedural adequacy

of the original review of the § 2255 claim. For this reason, the savings clause

permits review of “detention” when the prisoner’s first § 2255 motion was

“inadequate or ineffective” to test those claims. The issue is whether the movant

had a procedural opportunity to raise his § 924(e) claim in an “adequate and

effective” fashion. This Court’s decision in Williams honored this distinction by

establishing, as the necessary if not sufficient conditions for receiving savings-

clause relief, that a prisoner must demonstrate that his sentencing claim was

squarely foreclosed by Circuit precedent at the time of his trial, direct appeal, or

first § 2255 proceeding; that the Supreme Court subsequently overruled that

erroneous Circuit precedent; and that the Supreme Court decision applies

retroactively on collateral review. Williams, 713 F.3d at 1343. If there is ever to

be any sentencing claim that is serious enough to warrant a second look when the

prisoner’s first procedural opportunity for review was inadequate or ineffective, an

erroneous § 924(e) statutory maximum claim fits the bill.

      This Court consistently has drawn a distinction between sentences above the

authorized statutory maximum penalty and those beneath that statutory maximum.


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In Gilbert II, this Court took great pains to make clear that its holding applied only

to sentences erroneously enhanced under the sentencing guidelines, not to

sentences exceeding the statutory maximum penalty authorized by Congress for

the crime of conviction. See Gilbert II, 640 F.3d at 1295, 1306-07, 1312, 1319

n.20, 1323. The concern with an erroneous sentence above the statutory maximum

is that the sentencing court “exceeded [the punishment] authorized by the

legislature.” Jones v. Thomas, 491 U.S. 376, 383, 109 S. Ct. 2522, 2526 (1989);

see also United States v. DiFrancesco, 449 U.S. 117, 139, 101 S. Ct. 426, 438

(1980) (“[A] defendant may not receive a greater sentence than the legislature has

authorized.”); United States v. Bushert, 997 F.2d 1343, 1350 n.18 (11th Cir. 1993)

(“It is both axiomatic and jurisdictional that a court of the United States may not

impose a penalty for a crime beyond that which is authorized by statute.”). Thus,

there are serious, constitutional, separation-of-powers concerns that attach to

sentences above the statutory maximum penalty authorized by Congress.

      In this respect, a sentence exceeding the authorized statutory maximum in

§ 924(a) is more akin to an actual-innocence claim, which every circuit to have

considered the savings clause, but the Tenth, acknowledges would qualify under

the savings clause. The prisoner who was convicted and sentenced under the

§ 924(e) statute that the Supreme Court subsequently decides never punished his

conduct is being held without authorization by any congressional statute.


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Similarly, when a prisoner convicted of a § 922(g) crime serves more than the

applicable 10-year maximum in § 924(a) due to an erroneous § 924(e) sentence, he

too is being detained without authorization by any statute.

      Our conclusion today is consistent with, and in no way undermines, our en

banc decision in Gilbert II. There, we rested our holding in large part on the

finality interests espoused by AEDPA, which were strong enough to override

claims of guidelines error within the statutory maximum penalty. See Gilbert II,

640 F.3d at 1309-12. This case does not implicate those finality concerns in the

same way. We are not creating a rule that “would apply to every type and kind of

[guideline] enhancement, of which there are scores.” See id. at 1309. Nor are we

permitting “an endless repetition of inquiry into facts and law in a vain search for

ultimate certitude.” See id. at 1311 (quoting McCleskey v. Zant, 499 U.S. 467,

492, 111 S. Ct. 1454, 1469 (1991)) (internal quotation marks omitted). We are

simply recognizing that the savings clause, in addition to § 2255(h), contains a

very narrow exception to AEDPA’s prohibition on successive collateral relief—an

exception that is supported by statutory language in § 2255(e), and one that we

have foreseen and preserved since Wofford.

      The need to correct a sentence above the authorized statutory maximum

penalty weighs significantly heavier against finality interests than the need to

amend a within-statutory-maximum sentence that simply might have been lower


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but for an erroneous guidelines application. Gilbert II illustrates this point well.

There, we observed that, were we to remand Gilbert’s case for resentencing, it was

by no means clear that he would receive a lesser sentence than he was presently

serving, given that the guidelines were no longer mandatory. See Gilbert II, 640

F.3d at 1304-05. We explained that the district court, on remand, could easily give

Gilbert an above-guidelines sentence based on the 18 U.S.C. § 3553(a) factors. Id.

If Gilbert was resentenced to the original 292 months or even life imprisonment,

his sentence “would not be unreasonable or disproportionate to the crime.” Id. at

1305.

        In stark contrast in this case, we can say with absolute certainty that, on

remand, the district court must, and thus would, give Bryant a lower sentence than

his current term of 235 months. Indeed, a lower sentence of 10 years is guaranteed

because—in light of Begay, Archer, and Canty—Bryant’s authorized statutory

maximum penalty is 10 years, and there is nothing a district court judge could do

to vary upwards above 10 years. See 18 U.S.C. § 924(a)(2); see also U.S.S.G.

§ 5G1.1(a). As with cases of proven actual innocence, finality interests must yield

in cases of current sentences proven to be above the statutory maximum penalty

authorized by Congress. Given the above already-narrowed confines of the

savings clause, there is little undermining of finality interests to grant relief to




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prisoners who are serving illegal sentences above the authorized statutory

maximum penalty.

                        XI.    AMICUS’S ARGUMENTS
      The government does not contest that the savings clause applies when and if

Circuit precedent foreclosed a petitioner’s claim that he lacks the requisite three

predicate felonies but the petitioner has now proven that his § 924(e) sentence

exceeds the statutory maximum penalty, as described above. Rather, the

government wants a remand to substitute Bryant’s burglary conviction, which we

denied for the reasons stated earlier. Amicus counsel was thus appointed to brief

and argue on appeal whether the savings clause applies when a prisoner establishes

that his sentence exceeds the statutory maximum penalty. While the amicus offers

four well-developed counterarguments, none of them persuade us.

A.    Mandatory Guidelines Versus Statutory Maximums

      First, the amicus asserts that there is no meaningful difference between

mandatory sentencing guidelines and sentencing statutes. However, as discussed

above, this Court already has distinguished between the pre-Booker mandatory

sentencing guidelines and statutory maximum penalties. See Gilbert II, 640 F.3d at

1306-07 (explaining that a “statutory maximum sentence” is a “punishment ceiling

beyond which no [convicted] defendant . . . may be sentenced” and noting that,

where a statute and mandatory guideline sentence are inconsistent, “the guideline[]


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[sentence must] . . . bend to statutorily prescribed limits, not the other way

around”). Because of this distinction, this Court carefully cabined its holding in

Gilbert II to sentences that did not exceed the permitted statutory maximum

penalty.

      There is a significant distinction between a sentence that exceeds the

statutory maximum sentence stated in § 924(a) and a sentence that, although

enhanced by application of mandatory sentencing guidelines, remains within the

permitted statutory maximum penalty. Even in the mandatory-guidelines era, a

sentencing judge was bound by the absolute upper-limit of a statutorily authorized

maximum penalty. Accord Booker, at 543 U.S. at 234, 125 S. Ct. at 750 (noting

that, where a sentencing judge “is bound only by the statutory maximum[,] . . .

there [is] no Apprendi problem”). We recognize that Congress made the pre-

Booker sentencing guidelines mandatory by congressional statute. See 18 U.S.C.

§ 3553(b)(1). The guidelines, even if mandatory, do not override, and indeed must

yield to, congressionally-enacted statutory maximum penalties. See U.S.S.G.

§ 5G1.1(a).

      Consider the following example: a person convicted of federal bank robbery

faces a statutory maximum of 20 years. See 18 U.S.C. § 2113(a). Even under the

old mandatory guidelines sentencing scheme, if the prisoner’s guidelines range

with an erroneous career-offender enhancement exceeded 20 years, the prisoner


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would still be sentenced to 20 years pursuant to 18 U.S.C. § 2113(a). See U.S.S.G.

§ 5G1.1(a) (2001) (“Where the statutorily authorized maximum sentence is less

than the minimum of the applicable guideline range, the statutorily authorized

maximum sentence shall be the guideline sentence.”); see also Gilbert II, 640 F.3d

at 1307 (“To the extent of any inconsistency, the guidelines would have to bend to

statutorily prescribed limits, not the other way around.”).

      Statutory maximum penalties take precedence over sentences set forth in the

sentencing guidelines. This was true even when the sentencing guidelines were

mandatory. A statutory maximum penalty is not on equal footing with the

guidelines but are more bedrock, fundamental features of sentences.

B.    Actual-Innocence Claims

      Second, the amicus asserts that there is a critical difference between actual

innocence and sentencing error. The amicus suggest that only those movants who

are “innocent of an actual crime” are eligible for the savings clause relief.

      It is true that one cannot be actually innocent of a sentencing enhancement.

Gilbert II, 640 F.3d at 1320. However, the savings clause is not limited to actual-

innocence claims. The savings clause applies where a § 2255 motion was

“inadequate or ineffective to test the legality of [one’s] detention.” See 18 U.S.C.

§ 2255(e). As discussed above, the use of the term “detention” strongly indicates

that the savings clause covers more than actual-innocence claims.


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      Anticipating this conclusion, the amicus asserts that, even if the savings

clause covers some sentencing claims, it does not allow relief here because

Bryant’s sentence does not exceed the applicable statutory maximum penalty. The

amicus argues that there is only one statutory maximum penalty for a § 922(g)

crime: life imprisonment. According to the amicus, because the statutory

maximum penalty for a § 922(g) crime was always life imprisonment, there was no

sentencing error in Bryant’s case because his 235-month sentence was less than

life in prison. In reaching its conclusion, the amicus relies on Almendarez-Torres

v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998).

      In Almendarez-Torres, the Supreme Court noted that, in statutes like

§ 924(e), recidivism is not an element of the offense but is a “sentencing factor.”

See 523 U.S. at 230, 118 S. Ct. at 1224. Because it is a sentencing factor, the

amicus argues that the recidivism enhancement contained in § 924(e) does not

define a separate crime. This is true. However, the amicus asks this Court to read

into the Almendarez-Torres opinion what is not there: if an unenhanced § 922(g)

conviction and an enhanced § 922(g) conviction have the same offense elements,

they must also have the same statutory maximum penalty of life imprisonment.

      The problem with the amicus’s argument is that the language of § 924

contains a separate and distinct statutory maximum penalty. Section 924(a)(2)

states that the maximum sentence for a violation of § 922(g) is 10 years. See


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Turner, 709 F.3d at 1332 (“Had he not been subject to the ACCA enhancement,

[the prisoner’s] maximum sentence would have been 10 years in prison.” (citing

§ 924(a)(2)). A sentencing judge cannot sentence above this statutorily-imposed

maximum threshold unless the sentencing factors contained in § 924(e) exist. Only

if such sentencing factors exist is the statutory penalty increased to life

imprisonment. If such factors do not exist, the maximum statutory penalty

remains—as is clearly stated in § 924(a)(2)—10 years imprisonment. We thus

cannot say there is only one statutory maximum penalty of life imprisonment.

      Adoption of the amicus’s position in the facts of this case would effectively

limit the reach of the savings clause to actual-innocence claims of the elements of

the underlying criminal offense. If subsequent Supreme Court precedent

establishes that the government had to prove an additional element to convict and

sentence the prisoner, the prisoner’s claim would not fairly be characterized as a

sentencing claim. When an element has not been proven, the prisoner has a basis

to attack both his conviction and his sentence, not just the sentence. The amicus

brief’s fallback position is essentially offering just another species of actual-

innocence claim as the sole example of the kind of sentencing claim that warrants

savings-clause relief.




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C.    Statutory Versus Constitutional Claims

      Third, the amicus brief warns that allowing the correction of erroneous

§ 924(e) applications via the savings clause would “privilege[] statutory sentencing

error over meritorious constitutional claims” and thereby “frustrate AEDPA’s

greater tolerance for the latter.” This argument sounds attractive on its face, but its

key underlying assumption—which we think is wrong—is that the savings clause

merely recapitulates the same limitations imposed by other sections of § 2255. In

other words, the amicus’s logic is that § 2255(h) treats only a small set of

constitutional claims as serious enough to require a second look, and, thus, §

2255(e) must do the same. Under amicus’s reasoning, the savings clause in §

2255(e) cannot allow consideration of mere statutory claims, because such claims

could never be more serious than the myriad constitutional claims that will not pass

muster under § 2255(h)(2).

       As discussed above, however, § 2255(e) has a different thrust than

§ 2255(h); its concern is not solely the substantive seriousness of the claim but also

the procedural adequacy and effectiveness of the prisoner’s original § 2255 hearing

on that claim. If § 2255(e) merely recapitulated the same policy concerns as

§ 2255(h), the former would be surplusage in the § 2255 statute. It is a

fundamental canon of statutory interpretation that this Court should read every part




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of the statute to have meaning. See United States v. Canals-Jimenez, 943 F.2d

1284, 1287 (11th Cir. 1991).

D.     Tenth Circuit Rule

       Fourth, the amicus asserts that this Court should follow the rule articulated

by the Tenth Circuit. See Prost, 636 F.3d at 584. In Prost, a federal prisoner

sought to bring a § 2241 petition claiming statutory innocence based on a new

Supreme Court interpretation of a money laundering statute. 636 F.3d at 579-80.

Prior to the Supreme Court ruling that prompted the Prost petitioner to file his §

2241 petition, there was no adverse circuit precedent in the Tenth Circuit that

squarely foreclosed his statutory innocence claim, but the petitioner did not assert

statutory innocence in his first § 2255 motion. See id. at 580, 588-90.

       The Tenth Circuit concluded that an initial § 2255 motion is not “inadequate

or ineffective to test the legality of [a petitioner’s] detention” if “a petitioner’s

argument challenging the legality of his detention could have been tested in [the]

initial § 2255 motion.” Id. at 584 (internal quotation marks omitted). Based on

this conclusion, the Tenth Circuit held that the savings clause barred the

petitioner’s § 2241 petition because he could have raised his statutory innocence

claim in his first § 2255 motion. Id. at 589. The Tenth Circuit alternatively

determined that, even if circuit precedent had squarely foreclosed the petitioner’s

claim at the time of his first § 2255 motion, § 2255(e) still would bar his § 2241


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petition because he could have challenged that circuit precedent in his first § 2255

motion. Id. at 590-93.

      As a preliminary matter, Bryant and the Prost petitioner are on a different

footing. Our Circuit’s precedent squarely foreclosed Bryant’s claim until after he

filed his first § 2255 motion. By contrast, the Prost petitioner’s claim was not

foreclosed by circuit precedent. The facts in Prost are more similar to the facts in

Williams than they are to Bryant’s case. The Tenth Circuit in Prost and this Court

in Williams reached consistent results in holding that the savings clause does not

reach claims that could have been raised in earlier proceedings.

      The amicus asks us to look more broadly at the Prost opinion and adopt the

Tenth Circuit’s alternative conclusion that even if circuit precedent had squarely

foreclosed the petitioner’s claim at the time of his first § 2255 motion, the savings

clause still would bar his § 2241 petition. However, the Tenth Circuit’s rationale

in that portion of the Prost opinion is somewhat in tension with this Court’s

precedent. As discussed above, this Court previously established that, for a claim

to “pass muster under the savings clause,” a Supreme Court decision must have

overturned “circuit precedent that squarely resolved the claim so that the petitioner

had no genuine opportunity to raise it at trial, on appeal, or in his first § 2255

motion.” See Williams, 713 F.3d at 1343 (citing Wofford, 177 F.3d 1236)




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(emphasis added). Our Circuit precedent suggests that a prisoner must have had a

genuine opportunity to raise his claim in an earlier proceeding

      Under the Tenth Circuit’s ruling, the savings clause does not apply if a

prisoner had any opportunity—regardless of how long-standing or entrenched prior

circuit precedent was—to raise his claim in an earlier proceeding. The Tenth

Circuit’s conclusion in Prost that any opportunity for relief is “adequate and

effective” to test the legality of one’s detention is inconsistent with the principles

underlying our Circuit precedent. See Williams, 713 F.3d at 1348 (stating that

what makes the § 2255 proceeding inadequate or ineffective is when “erroneous

circuit precedent foreclosed [the petitioner’s] argument”). We do not adopt the

Tenth Circuit’s alternative conclusion from Prost, but follow the analytical

requirements in Williams which Bryant has satisfied.

                   XII. SECTION 2241 HABEAS REMEDY
      Given Bryant has established that his sentence erroneously exceeds the

statutory maximum penalty, the savings clause permits his § 2241 petition to

proceed, and he should prevail on his § 2241 claim, our final task is to determine

what his § 2241 relief should be in the context of this case.

      Bryant’s initial pro se brief on appeal “respectfully requests that his sentence

be vacated and his case remanded for resentencing without the unlawful Armed

Career Criminal Enhancement.” His counseled brief requests this Court to “vacate


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the district court’s judgment and remand [his] case to the district court with

instructions to grant the habeas corpus petition.” It also states that Bryant “should

have been sentenced to a maximum of ten years.” Of course, the government asks

us to affirm the dismissal of Bryant’s § 2241 petition by letting the government

substitute Bryant’s burglary conviction on appeal or on remand, but we have

already denied that request.

      In fashioning § 2241 relief in a case brought under the savings clause, we

must consider the “history of and purpose behind § 2255, and its relationship to the

habeas remedy,” codified in § 2241, which we discussed in Wofford. See

Wofford, 177 F.3d at 1238-39. Section 2255 channels a federal prisoner’s attack

on the validity of his sentence to the initial sentencing court so that, if the

defendant establishes a sentencing error, he can be resentenced by the court where

the sentencing records and witnesses are located. 28 U.S.C. § 2255(a); see

Wofford, 177 F.3d at 1239 (describing purpose behind § 2255’s enactment as to

avoid “serious administrative problems” encountered by habeas courts in the

jurisdiction of federal prisons due to an “inordinate number of habeas corpus

actions far from the scene” of the facts, the witnesses, and the records of the

sentencing court). After § 2255’s enactment, § 2241 habeas petitions, which must

be filed in the incarceration district, are generally reserved for challenges to

execution of a sentence or the nature of confinement, not the validity of the


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sentence itself or the fact of confinement. See Antonelli v. Warden, 542 F.3d

1348, 1352 (11th Cir. 2008); United States v. Plain, 748 F.2d 620, 621 n.3 (11th

Cir. 1984).

      Although Congress did channel collateral attacks on the validity of a

sentence to sentencing courts, Congress still provided one exception: a federal

prisoner may resort to § 2241 to attack his conviction or sentence if he satisfies the

savings clause. See 28 U.S.C. § 2255(e). Thus, we conclude that allowing the

§ 2241 habeas court itself to reduce Bryant’s sentence immediately to the 10-year

statutory maximum does not thwart the purpose and division of labor in § 2255.

      Indeed, in Bryant’s § 2241 case, his sentence exceeds the statutory

maximum penalty due to pure § 924(e)-Begay error, and all that is required to

correct that statutory error is a reduction to the statutory maximum of 10 years by

the district court where the defendant is incarcerated. See 18 U.S.C. § 924(a)(2);

see also U.S.S.G. § 5G1.1(a) (providing that if the statutory maximum sentence is

less than the guidelines range, the statutory maximum controls). There is no need

for the § 2241 court or the sentencing court to hold a resentencing hearing or to

further determine the appropriate sentencing range within the statutory maximum

penalty. After all, any § 2241 challenge to a sentence that is already below the

authorized statutory maximum could not open the § 2255(e) portal. See Gilbert II,

640 F.3d at 1323. And, Bryant in a § 2241 petition is not able to attack any


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misapplication of the guidelines below the statutory maximum. See id. 19 Thus,

allowing Bryant’s above-statutory-maximum claim to proceed in a § 2241 petition

through § 2255(e)’s savings clause and allowing the § 2241 court to reduce

Bryant’s sentence to the statutory maximum penalty do not undermine the

collateral-relief structure built by Congress in § 2255.

                     XIII. RESPONSE TO PARTIAL DISSENT
       Although the Court grants Bryant significant habeas relief in this case and

reduces his 235-month sentence to 120 months, the partial dissent takes this case as

an opportunity to voice again dissatisfaction with our binding precedent.

       Our dissenting colleague’s arguments about guidelines-calculation errors

and granting a full and unrestricted resentencing are, in part, restatements of

arguments from her earlier dissenting opinion in Gilbert v. United States (Gilbert

II), 640 F.3d 1293 (11th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1001 (2012).

Rather than addressing the partial dissent, we simply respond that our majority

opinion follows the legal principles in our binding precedent in Gilbert II, and we

adopt here Gilbert II’s response to the same type of dissenting arguments made

there. See 640 F.3d at 1313-18.



       19
         As recounted earlier, Bryant’s advisory guidelines range was 235 to 293 months’
imprisonment. Even without the § 4B1.4 increase to his offense level, Bryant’s offense level
was 29 and his criminal history category was VI (due to 18 points), yielding a guidelines range
of 151 to 188 months’ imprisonment, also above the 10-year statutory maximum penalty.


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      Similarly, our dissenting colleague’s arguments about the requirement of

circuit-law-foreclosure of a § 924(e) claim at the time of sentencing, direct appeal,

and the first § 2255 proceeding are restatements of arguments from her earlier

dissenting opinion in Williams v. Warden, 713 F.3d 1332 (11th Cir. 2013). The

Williams Court explained (1) why to satisfy §2255(e)’s requirement—that the

§ 2255 remedy was “inadequate or ineffective”—a petitioner must show his

sentencing claim was squarely foreclosed by circuit law at the time of trial, direct

appeal, and the first § 2255 proceeding and (2) why letting the § 2255(e) savings

clause apply in the broad way the dissent argues would eviscerate the statutory bar

on second or successive petitions. See 713 F.3d at 1342-43.

      If our Circuit’s precedent did not foreclose defendant Bryant’s § 924(e)

statutory claim at the time of sentencing, direct appeal, and a first § 2255

proceeding, then the remedy in § 2255 was not “inadequate or ineffective” to raise

that claim. Williams, 713 F.3d at 1344 & n.4; Gilbert II, 640 F.3d at 1319; see

Wofford v. Scott, 177 F.3d 1236, 1244-45 (11th Cir. 1999). This is why, to meet

the “inadequate or ineffective” test in § 2255(e), the Williams Court required the

defendant to show that he had “no genuine opportunity to raise [his claim] at trial,

on appeal, or in his first § 2255 motion.” 713 F.3d at 1343. The Williams Court

explained: “if we follow the dissent’s reasoning to its ultimate conclusion, every

§ 2255 motion that a panel of this Court comes to believe, years later, is wrongly


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decided could be revived under § 2241 by virtue of the savings clause. This view

is unsustainable because it is wholly inconsistent with the bar on second or

successive motions” and “would eviscerate the bar.” Id. at 1348 n.7.

       Although the partial dissent agrees that relief should be granted, what is

most striking and merits some reply is the dissent’s fulsome attack on the majority

opinion’s remedy-holding, despite the fact the majority’s careful navigation has

secured a safe passage for Bryant through the narrow § 2255(e) portal to

substantial § 2241 relief.20 It is undisputed that § 2243 directs courts to

“summarily hear and determine the facts, and dispose of the matter as law and

justice require.” 28 U.S.C. § 2243. Our disagreement is over what remedy the law

and justice require to correct the identified error here. And, in that regard, our

panel does not write on a clean slate as the dissent would have us do. Importantly,

under Gilbert II, Bryant cannot obtain a § 2241 writ through the § 2255(e) portal




       20
          Pending before this Court are three separate appeals, briefed separately, under three
separate appeal numbers involving defendants in three separate criminal cases: Bryant v.
Warden, FCC Coleman-Medium, appeal docketed, No. 12-11212 (11th Cir. Mar. 7, 2012),
McKinney v. FCC Coleman-Medium, appeal docketed, No. 12-12953 (11th Cir. June 6, 2012);
and Mackey v. Warden, FCC Coleman-Medium, appeal docketed, No. 12-14729 (11th Cir. Sept.
13, 2012). This opinion decides Appeal No. 12-11212. While the appeals present some of the
same sentencing issues and were scheduled and consolidated for oral argument on the same day,
the individual defendants’ appeals are to be decided individually and were not consolidated for
decisional purposes. And, as to the dissent’s claim as to a lack of adversarial arguments, the
government’s main position is that Bryant’s burglary conviction should be substituted for his
concealed-firearm conviction and, thus, no illegal detention exists at all.


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based on any guidelines-based sentencing errors. 21 Bryant is entitled to a grant of

the writ only because his sentence exceeds the statutory maximum penalty and

only to that extent.

       Our majority opinion’s express holding that the habeas remedy is limited to

a sentence reduction to the statutory maximum penalty is precisely what helps

open the § 2255(e) portal for Bryant without running afoul of our en banc and

other circuit precedent, the statutory bar on successive habeas motions, and the

finality interests that Congress incorporated into AEDPA’s provisions. The § 924

error that opens the portal to a § 2241 claim and the nature of the § 2241 relief are

inextricably intertwined in this case of statutory sentencing error.

       If our panel opinion allowed district courts to wholly resentence Bryant and

revisit earlier guidelines calculations, our panel opinion effectively would chart an

end-run course around our en banc Gilbert II decision and eviscerate Congress’s

statutory bar on successive habeas petitions. To avoid this end-run, the majority

opinion harmonizes the law and rationale from Gilbert II with our statutory habeas

authority by voiding only that portion of the sentence that is beyond the maximum

limits prescribed by law and by expressly refraining from permitting resentencing


       21
          The dissent acknowledges: “Mr. Bryant’s pure Begay error claim is not based on a
mistake about the guidelines. As is well established by now, his claim instead arises from the
fact that his sentence exceeds the maximum term of incarceration authorized by Congress.”
Dissenting Op. at 101.


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based on guidelines miscalculations. Contrary to the partial dissent’s argument

that we should not reach the remedy issue at all, it makes no sense to explain how

and why Bryant is entitled to habeas relief without also telling him and the district

court exactly what the scope of that relief is and what it takes to correct the

statutory error in his sentence.

       Not one of the habeas cases cited in the dissent involves the § 924(e)

statutory sentence error here, much less Gilbert II and Williams. 22 If anything, the

decisions cited in the partial dissent that granted the habeas writ often tailored the

remedy to remove the particular constitutional or statutory error (or directed that it

be removed) as precisely and efficiently as possible. 23 In the case before us, the

§ 924(e) statutory error is clear; and, the error can be remedied in a precise way:


       22
          The dissent relies on United States v. Triestman, 178 F.3d 624 (2d Cir. 1999), a
materially different case. In the 1999 Triestman case under a mandatory sentencing regime, the
district court invalidated a prisoner’s separate firearm conviction and resentenced the defendant
on his remaining drug conviction without that firearm conviction. 178 F.3d at 628. The Second
Circuit affirmed. Id. at 626.
       23
          See, e.g., In re Bonner, 151 U.S. 242, 257-58, 151 S. Ct. 323, 325-26 (1894) (noting
that “in rendering judgment, the court keeps within the limitations prescribed by the law,
customary or statutory” and that “[w]hen the court goes out of these limitations, its action, to the
extent of such excess, is void” (emphasis added)); Williams v. Singletary, 78 F.3d 1510, 1516-17
(11th Cir. 1996) (instructing the district court to conditionally grant the writ with the condition
that the state court either release the prisoner or vacate the prisoner’s duplicative conviction and
credit the time served for the sentence on that now-vacated conviction to the sentences of the
remaining convictions); Williams v. Jones, 571 F.3d 1086, 1088 (10th Cir. 2009) (directing the
district court to “impose a remedy that comes as close as possible to remedying the constitutional
violation” where counsel rendered constitutionally ineffective assistance by threatening to
withdraw if the defendant accepted a plea offer); Nunes v. Mueller, 350 F.3d 1045, 1057 (9th
Cir. 2003) (directing “the state to release [the petitioner] within 120 days unless it offers [the
petitioner] the same material terms that were contained in [the state’s] original plea offer”).


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reduce the sentence to 10 years to remove the § 924(e) statutory error. With that

remedy in place, Bryant’s detention is no longer illegal under § 924 and our Circuit

precedent.

                               XIV. CONCLUSION
      For all the foregoing reasons, we vacate the district court’s dismissal of

Bryant’s § 2241 petition with instructions that the district court grant Bryant

§ 2241 relief and enter an order stating Bryant’s sentence for his § 922(g)

conviction is hereby reduced to the 10-year statutory maximum penalty in

§ 924(a).

      VACATED AND REMANDED WITH INSTRUCTIONS.




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MARTIN, Circuit Judge, concurring in part and dissenting in part:

       I concur in the Majority’s conclusion that the savings clause in 28 U.S.C.

§ 2255(e), together with 28 U.S.C. § 2241, give Mr. Bryant a remedy in this case.

Mr. Bryant’s claim is that he was wrongly sentenced under the Armed Career

Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e). His case thus squarely

presents the issue left open in our en banc decision in Gilbert: whether § 2241 is

available where the asserted error in sentencing resulted in a term of incarceration

above the statutory maximum that would have applied but for the error. Gilbert v.

United States, 640 F.3d 1293, 1306–07, 1319 n.20 (11th Cir. 2011) (en banc). In

other words, this case is about a man who, because of a mistake made by a judge at

the time he was sentenced, is now in prison beyond the time allowed by the statute

setting his punishment.

       The government’s concession that savings clause relief is available for pure

Begay error is commendable.1 It is also consistent with the position it took in

Gilbert, where it argued that “[Mr.] Gilbert’s guidelines-misapplication claim d[id]

       1
          See Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008). While the
government argues that savings clause relief is available for pure Begay error, it says that Mr.
Bryant’s ACCA sentence is still valid because his criminal history still includes three qualifying
predicate convictions even absent his carrying a concealed firearm prior conviction. I agree with
the Majority that the government may not now substitute in a new predicate offense to maintain
Mr. Bryant’s ACCA sentence. As the Majority points out, the government waived any argument
that Mr. Bryant’s prior 1988 burglary conviction could be used as a third qualifying predicate
felony under the ACCA at the time he was sentenced. See Maj. Op. at 56–57 (citing United
States v. Canty, 570 F.3d 1251, 1257 (11th Cir. 2009); United States v. Petite, 703 F.3d 1290,
1292 n.2 (11th Cir. 2013)).
             Case: 12-11212     Date Filed: 12/24/2013    Page: 86 of 110


not present a ‘fundamental’ sentencing defect . . . because his actual sentence was

within statutory limits and could be reimposed today.” Br. for the U.S. on Reh’g

En Banc at 20, Gilbert, 640 F.3d 1292 (No. 09-12513), 2011 WL 493800, at *20.

But the government also told us at that time that “[f]undamental sentencing

defects, such as an erroneous ACCA sentence, should be redressable under the

savings clause under the same circumstances that would apply to a non-existent-

offense claim.” Id. So it is not surprising that the government continues to

disavow any institutional interest in keeping a person in prison beyond the

statutory maximum sentence prescribed by Congress. Indeed, the government has a

strong interest in preventing this type of injustice. See Berger v. United States,

295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935) (“The United States Attorney is the

representative not of an ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obligation to govern at all;

and whose interest, therefore, in a criminal prosecution is not that it shall win a

case, but that justice shall be done.”).

      If the savings clause means anything in the sentencing context, it must apply

to cases in which the sentence exceeds that authorized by Congress. We begin

with the precept that federal courts have limited jurisdiction and it is Congress, not

the courts, which sets the range of punishment by statute, just as Congress

establishes the elements of crimes by statute. See United States v. Lanier, 520 U.S.


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259, 267 n.6, 117 S. Ct. 1219, 1226 n.6 (1997) (“Federal crimes are defined by

Congress, not the courts . . . .”); Whalen v. United States, 445 U.S. 684, 689, 100

S. Ct. 1432, 1436 (1980) (“[T]he power to define criminal offenses and to

prescribe the punishments to be imposed upon those found guilty of them, resides

wholly with the Congress.”); United States v. Wiltberger, 18 U.S. (5 Wheat) 76, 95

(1820) (“It is the legislature, not the Court, which is to define a crime, and ordain

its punishment.”). Congress may give federal courts broad discretion to impose a

sentence within a statutory range, but separation of powers principles require that

the limits of that sentence fall within the parameters set by Congress. See

Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 1927 (1991) (“[A]

person who has been . . . convicted is eligible for, and the court may impose,

whatever punishment is authorized by statute for his offense . . . .”); Ex Parte

Lange, 85 U.S. (18 Wall.) 163, 176 (1873) (granting habeas relief to a federal

prisoner who had been sentenced to a term of imprisonment and a fine where the

statute prescribed imprisonment or a fine); see also McKleskey v. Zant, 499 U.S.

467, 478, 111 S. Ct. 1454, 1462 (1991) (confirming that Ex Parte Lange involved a

“sentence[] imposed without statutory authorization”).

      Where the Supreme Court provides an authoritative judicial interpretation of

a substantive criminal statute, like it did in Begay, the Court does not change the

meaning of the law in such a way that implicates finality concerns, but rather


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establishes what the law has always meant. See Rivers v. Roadway Express, Inc.,

511 U.S. 298, 312–13 & n.12, 114 S. Ct. 1510, 1519 & n.12 (1994); see also Fiore

v. White, 531 U.S. 225, 228–29, 121 S. Ct. 712, 714 (2001) (holding that it

violates due process to convict a defendant for conduct that a “criminal statute, as

properly interpreted, does not prohibit”). In this way, Begay, Archer,2 and Canty3

tell us that a prior offense for carrying a concealed firearm was never a “violent

felony” under the ACCA, and therefore Mr. Bryant was never an armed career

criminal. Because he never was an armed career criminal, the District Court never

had jurisdiction to impose the sentence it did. Certainly our august federal courts

are not without power to remedy a sentence mistakenly imposed by a court that

lacked jurisdiction to impose it. Indeed it is the responsibility of federal courts to

cure a detention that exceeded its legal limits.

       For these reasons, as well as those expressed by the Majority, I agree that the

savings clause must be available to habeas petitioners like Mr. Bryant who can

demonstrate that they were sentenced to a longer term than what Congress

       2
           United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (recognizing that Begay
is clearly on point and undermined prior circuit precedent to the point of abrogation such that
carrying a concealed weapon cannot be considered a “crime of violence” under the career
offender guideline in United States Sentencing Guidelines (USSG) § 4B1.2).

       3
         United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009) (applying Archer and
Begay to ACCA context and holding “that carrying a concealed weapon is not a violent felony
that may be used as a predicate conviction to enhance a defendant's sentence under the ACCA”).




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provided by statute. I cannot agree, however, with those portions of the Majority’s

opinion that go beyond what the law provides or what this case requires. To this

end, I will discuss the three ways in which I believe the Majority’s analysis is

flawed.

       1.     SCOPE OF THE § 2241 HABEAS REMEDY

       Part XII of the Majority opinion concludes that reducing Mr. Bryant’s

sentence to ten years is the remedy. While I agree this is the proper result for

Mr. Bryant here, the Majority’s analysis in Part XII goes beyond what is necessary

to decide the question his case presents.

              a.     Granting The Writ Without Resentencing Is The
                     Appropriate Remedy In Mr. Bryant’s Case Because He
                     Has Already Served More Than Ten Years In Prison.

       Our panel unanimously agrees that Mr. Bryant’s current sentence exceeds

his statutory maximum of 10 years under 18 U.S.C. § 924(a). Mr. Bryant was

sentenced on March 15, 2002 to serve 235-months imprisonment as well as three

years of supervised release for a single violation of §§ 922(g) and 924(e)(1). The

day he was sentenced, Mr. Bryant was immediately remanded to the custody of the

U.S. Marshals to await designation by the Bureau of Prisons. 4 Thus, from the date

of his sentencing until today, Mr. Bryant has already served 4,302 days (or 11


       4
         Mr. Bryant was initially taken into custody by the U.S. Marshal Service on December
22, 2000, detained, and then released on bond on December 27, 2000.


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years, 9 months, and 9 days)—well in excess of the statutory maximum of 10

years.

         Because Mr. Bryant has already served more time in prison than authorized

by Congress, we should simply grant the writ, vacate the District Court’s judgment

denying his § 2241 petition, and remand the case to the District Court for the

Middle District of Florida. There, the District Court would enter this Court’s

Order granting the writ and direct the Warden at Coleman Correctional Institution

to immediately release Mr. Bryant. See 28 U.S.C. § 2241(a) (“Writs of habeas

corpus may be granted by the Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective jurisdictions.”).

         Also in light of this fact that he has already served a term beyond what the

statute allows, it is not necessary for us to arrive at a sentence for Mr. Bryant.

Certainly, I recognize the remedy under § 2241 encompasses more than immediate

release—see 28 U.S.C. § 2243 (authorizing federal courts in habeas proceedings to

“dispose of the matter as law and justice require”); Wilkinson v. Dotson, 544 U.S.

74, 85–86, 125 S. Ct. 1242, 1250 (2005) (Scalia, J., concurring) (recognizing that

§ 2243’s “dispose of the matter as law and justice require” language has been

interpreted “to permit relief short of release” (collecting cases)). But the only

remedy now appropriate for Mr. Bryant is his immediate release. Given the statute

capping Mr. Bryant’s sentence at ten years, and that he has now served close to


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twelve years, there would be nothing for a District Court to do at a resentencing. 5

Mr. Bryant is due for immediate release from the custody of the Bureau of Prisons.

               b.      Ruling Out The Possibility Of A Resentencing In Other
                       Cases Is Inconsistent With The Text Of The Statute,
                       Historical And Current Usage, And Equitable Nature Of
                       The Writ.

       Having agreed with the Majority that a resentencing is not necessary for

Mr. Bryant, I disagree with its suggestion in dicta that resentencing may never be

necessary: 6

               There is no need for the § 2241 court or the sentencing
               court to hold a resentencing hearing or to further
               determine the appropriate sentencing range within the
               statutory maximum penalty. After all, any § 2241
               challenge to a sentence that is already below the
               authorized statutory maximum could not open the §

       5
          Even setting aside the issue of his term of incarceration, there is nothing else, such as
an unauthorized term of supervised release, which would require Mr. Bryant to be resentenced.
Upon his release, Mr. Bryant will begin serving his three years of supervised release, see 18
U.S.C. § 3624(e), which is an authorized term of supervised release for a conviction under 18
U.S.C. §§ 922(g) and 924(a). See 18 U.S.C. § 3559(a)(3) (classifying offenses with a statutory
maximum term of ten years as a Class C felony); 18 U.S.C. § 3583(b)(2) (authorizing a term of
supervised release for a Class C felony of “not more than three years”); USSG § 5D1.2(a)(2).
There may be cases in which a petitioner’s term of supervised release, like his term of
incarceration, exceeds that authorized by Congress, but Mr. Bryant’s is not one of them.

       6
         To the extent the Majority suggests that § 2241 relief could never include a
resentencing to what the original and legal sentence should have been, those portions of the
Majority’s opinion are dicta, not holding. They simply go beyond the peculiar fact pattern
presented by Mr. Bryant’s case. See Licciardello v. Lovelady, 544 F.3d 1280, 1288 n.8 (11th
Cir. 2008) (“Our holding, as always, is limited to the facts before us.”); Chavers v. Sec’y, Fla.
Dep’t of Corr., 468 F.3d 1273, 1275 (11th Cir. 2006) (“The holdings of a prior decision can
reach only as far as the facts and circumstances frame the precise issue presented in that case.”).




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              2255(e) portal. See Gilbert II, 640 F.3d at 1323. And,
              Bryant in a § 2241 petition is not able to attack any
              misapplication of the guidelines below the statutory
              maximum. See id. Thus, allowing Bryant’s above-
              statutory-maximum claim to proceed in a § 2241 petition
              through § 2255(e)’s savings clause and allowing the
              § 2241 court to reduce Bryant’s sentence to the statutory
              maximum penalty does not undermine the collateral-
              relief structure built by Congress in § 2255.

Maj. Op. at 79–80 (footnote omitted). There is simply nothing in the statute, our

precedent, or that of the United States Supreme Court, which would systematically

limit relief in all of these cases to a sentence of ten years—that is, the maximum

permitted by the statute.

       Further, principles of judicial restraint counsel against our pronouncing a

broad categorical rule that may preclude this Court and future District Courts from

ordering any remedy other than reducing a petitioner’s sentence to the very most

time the statute permits. Indeed a display of judicial restraint is especially

appropriate here, given that we have not had the benefit of adversarial briefing on

the issue of the proper remedy. 7


       7
          Neither have we had the benefit of briefing on the question of what is the proper
remedy in the two other consolidated cases involving Messrs. McKinney and Mackey. The
Majority has set aside these cases for now, but I fear this opinion dooms both men to a 10-year
sentence. To the extent the parties to Messrs. McKinney’s and Mackey’s cases did talk about it,
however, their comments support the conclusion that a straightforward resentencing without the
ACCA enhancement is the appropriate remedy. For example, the government’s joint answer
brief in McKinney, No. 12-12953, and Williams, No. 12-12841, states: “The judgment should be
vacated, and the cases remanded with instructions to grant the petitions for a writ of habeas
corpus and direct that McKinney and Williams be resentenced by the court of conviction without


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       In any event, the Majority’s unjustifiably limited view of the remedy

available under § 2241 is not consistent with the text of the statute, historical and

current usage, or the equitable nature of the writ. The Majority’s analysis fails to

recognize that § 2255 was enacted to provide a remedy in the sentencing court

exactly equal to the remedy available under § 2241. See Hill v. United States, 368

U.S. 424, 427, 82 S. Ct. 468, 471 (1962) (“[Section] 2255 was . . . intended simply

to provide in the sentencing court a remedy exactly commensurate with that which

had previously been available by habeas corpus in the court of the district where

the prisoner was confined.” (emphasis added)); see also Davis v. United States,

417 U.S. 333, 343, 94 S. Ct. 2298, 2304 (1974) (stating § 2255 provides a remedy

“identical in scope to federal habeas corpus”).




the ACCA enhancement.” Br. for the Resp. Wardens at 54, McKinney, No. 12-12953, &
Williams, 12-12841 (Jan. 11, 2013). In the same way, the government’s joint supplemental brief
in McKinney, 12-12953, and Mackey, 12-14727, concludes: “The judgment denying
McKinney’s and Mackey’s habeas petitions should be reversed and the cases remanded with
instructions to grant the writs and direct that the petitioners be resentenced accordingly.”
Supplemental Br. for Resp. Warden at 30, Mackey, 12-14727, & McKinney, 12-12953 (Aug. 5,
2013). Also, the joint counseled supplemental brief for Messrs. McKinney and Mackey states:
“The judgment should be vacated, and the cases remanded with instructions to grant the
petitions, and to dispose of the matter as law and justice require by directing that petitioners be
resentenced without the ACCA enhancement.” (Joint) Supplemental Br. for Pet’rs at 38,
McKinney, 12-12953, & Mackey, 12-14792 (June 27, 2013); see also (Joint) Rep. Br. for the
Pet’rs at 18, McKinney, 12-12953, & Mackey, 12-14792 (Aug. 19, 2013) (same).


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                    i.    Text of the Statute: 28 U.S.C. § 2243

      Federal courts have long enjoyed the power and the duty to “dispose of

[habeas corpus petitions] . . . as law and justice require.” 28 U.S.C. § 2243.

Indeed, “[s]ince 1874, the habeas corpus statute has directed the courts to

determine the facts and dispose of the case summarily, ‘as law and justice

require.’” Peyton v. Rowe, 391 U.S. 54, 66–67, 88 S. Ct. 1549, 1556 (1968)

(quoting Rev. Stat. § 761 (1874), superseded by 28 U.S.C. § 2243). The “law and

justice” requirement has historically been interpreted to confer broad remedial

powers on the federal courts: “[t]he court is invested with the largest power to

control and direct the form of judgment to be entered in cases brought up before it

on habeas corpus.” In re Bonner, 151 U.S. 242, 261, 14 S. Ct. 323, 327 (1894).

“[Section] 2243’s delineation of the scope of permissible relief applies to all

federal habeas proceedings, whether the petitioner is in federal or state custody, see

§ 2241(c).” Wilkinson, 544 U.S. at 87, 125 S. Ct. at 1251 (Scalia, J., concurring).

                    ii.   Historical and Current Usage

      For me, it is important to put Mr. Bryant’s case into the proper historical

context. While Justice Scalia has noted the broad relief now available to habeas

petitioners, this was, of course, not always the case. “For much of our history, we

interpreted [the habeas statute] . . . to reflect the common-law principle that a

prisoner seeking a writ of habeas corpus could challenge only the jurisdiction of


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the court that had rendered the judgment under which he was in custody.” Wright

v. West, 505 U.S. 277, 285, 112 S. Ct. 2482, 2486 (1992). But gradually the

category of claims considered to bestow jurisdiction in support of habeas relief

grew. Id. For example, as relevant to the pure Begay error we consider here, the

Supreme Court in 1873 held that imposition of a sentence above that authorized by

statute was recognized as a jurisdictional defect that could be remedied by federal

habeas. See Ex parte Lange, 85 U.S. (18 Wall.) at 176.

      And just as the category of cognizable habeas claims was once very narrow,

so too were the remedies. Again, it is Justice Scalia who explained:

             At the time of [42 U.S.C.] § 1983’s adoption, the federal
             habeas statute mirrored the common-law writ of habeas
             corpus, in that it authorized a single form of relief: the
             prisoner’s immediate release from custody. See Act of
             Feb. 5, 1867, § 1, 14 Stat. 386. Congress shortly
             thereafter amended the statute, authorizing federal habeas
             courts to ‘dispose of the party as law and justice require,’
             Rev. Stat. § 761. The statute reads virtually the same
             today, 28 U.S.C. § 2243 (‘dispose of the matter as law
             and justice require’). We have interpreted this broader
             remedial language to permit relief short of release.

Wilkinson, 544 U.S. at 85, 125 S. Ct. at 1250. Habeas relief was originally

confined to orders requiring the petitioner’s unconditional release from custody.

See, e.g., Ex Parte Frederich, 149 U.S. 70, 77–78, 13 S. Ct. 793, 795–96 (1893); In

re Medley, 134 U.S. 160, 173, 10 S. Ct. 384, 388 (1890). If the legal error proved

by the petitioner did not render her current custody illegal, she had no remedy.


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See, e.g., McNally v. Hill, 293 U.S. 131, 138, 55 S. Ct. 24, 27 (1934), overruled by

Peyton, 391 U.S. at 67, 88 S. Ct. at 1556. Conversely, if the error complained of

showed the petitioner’s custody was illegal, courts assumed that they lacked the

ability to order a retrial and had no choice but to order the prisoner released

unconditionally, often without prejudice to retrial. See, e.g., Ex parte Frederich,

149 U.S. at 77–78, 13 S. Ct. at 795–96; In re Medley, 10 U.S. at 173, 105 S. Ct. at

388. But the habeas remedy evolved over time. It now accommodates more

flexible remedies. For example, a habeas court may issue a conditional release

order, which only requires release of the prisoner if a retrial, resentencing, or other

action sufficient to cure the violation does not occur within an allotted period of

time. See Hilton v. Braunskill, 481 U.S. 770, 775, 107 S. Ct. 2113, 2118 (1987)

(“Federal habeas corpus practice, as reflected by the decisions of this Court,

indicates that a court has broad discretion in conditioning a judgment granting

habeas relief.”).

      Federal courts now recognize the broad use of the writ—for remedies

beyond just unconditionally or conditionally terminating physical custody. As the

Supreme Court has told us: “[The Writ] is not now and never has been a static,

narrow, formalistic remedy; its scope has grown to achieve its grand purpose—the

protection of individuals against erosion of their right to be free from wrongful




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restraints upon their liberty.” Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct.

373, 377 (1963).

       So while modern federal habeas corpus practice has moved towards full

realization of the statute’s “law and justice” command by recognizing a wide

variety of appropriate remedial orders,8 Part XII of the Majority opinion would

deprive this Court of all power and flexibility to fashion any remedy other than to

reduce a petitioner’s sentence to the maximum term of imprisonment permitted by

statute (i.e., ten years) for pure Begay error. The Majority’s pinched view of our

habeas powers and duties is simply contrary to the broad remedial interpretation

that has been given to the “law and justice” command in § 2243. The text of the

habeas “statute does not deny the federal courts power to fashion appropriate

relief.” Peyton, 391 U.S. at 66, 88 S. Ct. at 1556.




       8
          See Wilkinson, 544 U.S. at 85, 125 S. Ct. at 1250 (Scalia, J., concurring) (“We have
interpreted this broader remedial language to permit relief short of release.”); Dasher v. Att’y
Gen., Fla., 574 F.3d 1310, 1318 (11th Cir. 2009) (granting writ and ordering relief of
modification of sentence to “time served”); id. (“Our discretion to formulate such a remedy,
without disturbing the judgment of conviction, derives from 28 U.S.C. § 2243, which authorizes
federal habeas courts to ‘dispose of the matter as law and justice requires.’”); see also
Boumediene v. Bush, 553 U.S. 723, 779, 128 S. Ct. 2229, 2266 (2008) (“[T]he habeas court
must have the power to order the conditional release of an individual unlawfully detained—
though release need not be the exclusive remedy and is not the appropriate one in every case in
which the writ is granted.”); Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003)
(“Conceptually, any habeas remedy should put the defendant back in the position he would have
been in if the . . . [constitutional] violation never occurred . . . .” (quotation marks omitted)).




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                     iii.   Equitable Nature of the Writ

      Also, to the extent that the Majority implies that the remedy for a pure

Begay error is limited to reducing a petitioner’s sentence to the statutory

maximum, it either does not consider or unreasonably discounts the equitable

nature of the writ. The writ of habeas corpus is an equitable remedy. See Gomez

v. U.S. Dist. Court for N. Dist. of Cal., 503 U.S. 653, 653–54, 112 S. Ct. 1652,

1653 (1992) (per curiam) (“Whether [a] claim is framed as a habeas petition or as a

[42 U.S.C.] § 1983 action, [what is sought is] an equitable remedy”; as a result,

equity must be “take[n] into consideration”); Duckworth v. Eagan, 492 U.S. 195,

213, 109 S. Ct. 2875, 2886 (1989) (O’Connor, J., concurring) (“[T]he Court has

long recognized that habeas corpus [is] . . . governed by equitable principles . . . .”

(quotation marks omitted)); Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 848

(1963) (“[H]abeas corpus has traditionally been regarded as governed by equitable

principles.”), overruled in part on other grounds by Wainwright v. Sykes, 433 U.S.

72, 87–90, 97 S. Ct. 2497, 2507–08 (1977). The Supreme Court “repeatedly has

recognized that principles of fundamental fairness underlie the writ of habeas

corpus.” Sawyer v. Whitley, 505 U.S. 333, 351, 112 S. Ct. 2514, 2525 (1992)

(Blackmum, J., concurring); Sanders v. United States, 373 U.S. 1, 17, 83 S. Ct.

1068, 1078 (1963).




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       This being the case, traditional principles of equity require us to consider the

individual facts and circumstances of a petitioner’s case and then fashion the

remedy that is proper for him. See Dasher, 574 F.3d at 1318 (reducing a habeas

petitioner’s sentence to time served based on counsel’s inadequate legal advice to

plead guilty without a plea agreement); id. (recognizing that a court’s “discretion to

formulate such a remedy, without disturbing the judgment of conviction, derives

from 28 U.S.C. § 2243”).9

       Mr. Mackey’s case illustrates how important it is for us to leave future

courts free to fashion the appropriate remedy in the savings clause cases yet to

come. In September 2003, Mr. Mackey was indicted in the Southern District of

Florida on a single count of being a felon in possession of firearms and

ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He pleaded guilty.

The presentence investigation report (PSR) set forth that he was subject to an

enhanced sentence based on the following three prior convictions:

       1.      Robbery
       2.      Carrying a concealed firearm
       3.      Carrying a concealed firearm


       9
          See also Boria v. Keane, 99 F.3d 492, 498–99 (2d Cir. 1996) (granting habeas relief
and reducing sentence to time served and discharging petitioner from prison because he had
already served sentence “at least twice as long as would have been possible” if trial counsel had
not been ineffective in persuading the petitioner to accept a plea offer); Williams v. Singletary,
78 F.3d 1510, 1516–17 (11th Cir. 1996) (granting habeas relief for unconstitutional imposition of
cumulative sentences for single incident of criminal behavior and vacating one sentence and
crediting of time already served to the other).


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      Mr. Mackey was sentenced to serve 180-months imprisonment plus four

years of supervised release. His guideline range at the time he was sentenced was

180–188 months with the ACCA enhancement. Without the ACCA enhancement,

which we now know was wrongly imposed, Mr. Mackey’s total offense level was

18, criminal history category II, yielding a guideline range of 30–37 months.

Because Mr. Mackey has already served at least 10 years of imprisonment towards

his ACCA sentence, we cannot now put him in a position to receive the sentence

he should have received the first time around. Were it otherwise, I would argue

that he should be resentenced without the ACCA enhancement. We do not

administer justice by stopping every defendant whose sentence was so obviously

tainted by an illegal ACCA enhancement from being resentenced simply because

of our own mistake in defining the term “violent felony” under the ACCA.

                   iv.    Reliance on Gilbert

      As support for the conclusion that “[t]here is no need for the § 2241 court or

the sentencing court to hold a resentencing hearing or to further determine the

appropriate sentencing range within the statutory maximum,” the Majority opinion

reasons, “[a]fter all, any § 2241 challenge to a sentence that is already below the

authorized statutory maximum could not open the § 2255(e) portal.” Maj. Op. at

79–80 (citing Gilbert, 640 F.3d at 1323). The Majority’s reliance on Gilbert

misses the mark in several ways.


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      First, any attempt to tether a limitation of the remedy available under § 2241

to the holding or rationale of Gilbert fails on its own terms. Gilbert denied savings

clause relief to Mr. Gilbert because he only claimed that his guidelines were

misapplied. In contrast, Mr. Bryant’s pure Begay error claim is not based on a

mistake about the guidelines. As is well established by now, his claim instead

arises from the fact that his sentence exceeds the maximum term of incarceration

authorized by Congress. This court’s ruling in Gilbert explicitly declined to rule

on whether savings clause relief was available for pure Begay error. Id. at 1319

n.20. It cannot properly be said, therefore, that Gilbert even considered—much

less decided—anything at all about the scope, limit, or propriety of a particular

remedy for errors, like pure Begay errors, that are cognizable under § 2241.

      Second, once it is established that the remedy under § 2255 is “inadequate

and ineffective” under § 2255(e) for pure Begay errors, it follows that the portal to

§ 2241 is open for those errors. “In a case where the Section 2255 procedure is

shown to be ‘inadequate or ineffective’, . . . the habeas corpus remedy shall remain

open to afford the necessary hearing.” United States v. Hayman, 342 U.S. 205,

223, 72 S. Ct. 263, 274 (1952). Once the § 2241 portal is open, therefore, the

statute seems to me to require us to look at the facts and circumstances of each

individual case and “dispose of the matter as law and justice require.” 28 U.S.C.

§ 2243.


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      Third, the potential administrative problems of resentencing some petitioners

under § 2241 should not foreclose the possibility of resentencing others in an

appropriate case. The statute offers no workload protection for federal courts. To

the contrary, our authority to grant the writ of habeas corpus extends to prisoners

who are in custody within our jurisdiction at the time the habeas petition is filed.

See 28 U.S.C. § 2241(a). In the same way, “[d]istrict courts are limited to granting

habeas relief ‘within their respective jurisdictions.’” Rumsfeld v. Padilla, 542 U.S.

426, 442, 124 S. Ct. 2711, 2722 (2004) (quoting 28 U.S.C. § 2241(a)). Again, the

reason § 2255 was enacted in 1948 was “to minimize the difficulties encountered

in habeas corpus hearings by affording the same rights in another and more

convenient forum.” Hayman, 342 U.S. at 219, 72 S. Ct. at 272 (1952) (emphasis

added); Wofford v. Scott, 177 F.3d 1236, 1238–39 (11th Cir. 1999), implied

overruling recognized by Turner v. Warden Coleman FCI (Medium), 709 F.3d

1328, 1333 (11th Cir. 2013). In Hayman, the Supreme Court pointed to Walker v.

Johnston, 312 U.S. 275, 61 S. Ct. 574 (1941) as an example of the “practical

problem presented when an application for habeas corpus alleges a meritorious

claim not controverted by the records of the trial court.” 342 U.S. at 213, 72 S. Ct.

at 269.

      Without getting too far into the weeds on Walker, the resolution of that

habeas petition required holding an evidentiary hearing in the Northern District of


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California even though the events complained of by the petitioner happened in

Texas and that is where the federal officers who were witnesses were located. See

Walker, 312 U.S. at 278–82, 286–87, 61 S. Ct. at 576–77, 579; see also Hayman,

342 U.S. at 213, 72 S. Ct. at 269. Thus, while Walker offers a good demonstration

of the inconveniences that § 2255 was enacted to avoid, it also teaches that it is

possible to resolve even geographically dispersed (or otherwise complicated)

factual claims in the habeas court under § 2241 when necessary.

      The same should be true today—notwithstanding the enactment of § 2255—

where we determine that § 2255 is inadequate or ineffective. After all, our Court

recognized in Wofford itself that “[t]here was no intent to make the § 2255 remedy

any different in scope from the habeas remedy that had previously been available

to them.” 177 F.3d at 1239; see also Davis, 417 U.S. at 344, 94 S. Ct. at 2304

(“Nowhere in the history of Section 2255 do we find any purpose to impinge upon

prisoners’ rights of collateral attack upon their convictions. On the contrary, the

sole purpose was to minimize the difficulties encountered in habeas corpus

hearings by affording the same rights in another and more convenient forum.”

(quotation marks omitted)).

      Finally, there is persuasive authority outside the Eleventh Circuit for

resentencing defendants under the savings clause even after the passage of the

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241, et seq.


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For example, in United States v. Triestman, then Circuit Judge Sotomayor held that

a District Court had the power to resentence a habeas petitioner on his drug

convictions after he successfully challenged his firearm conviction in a § 2241

proceeding on the basis of Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501

(1995). 178 F.3d 624, 628–30 (2d Cir. 1999); cf. Brown v. Caraway, 719 F.3d

583, 596 (7th Cir. 2013) (granting § 2241 relief to a petitioner erroneously

sentenced as a career offender for pure Begay type error pre-Booker, and

remanding “with instructions to reduce [defendant’s] sentence to reflect [the

Court’s] finding that he is not a career offender within the meaning of [USSG]

§ 4B1.1”).

      Mr. Triestman’s § 924(c) conviction was vacated in a § 2241 proceeding

pursuant to Bailey. The District Court then recalculated Mr. Triestman’s

guidelines in such a way that increased his guideline range. Triestman, 178 F.3d at

628. Mr. Triestman was resentenced on his unchallenged drug convictions to a

term of imprisonment longer that what he had received before getting habeas relief.

The sentencing court reasoned that “the Court’s power to fashion appropriate relief

is no narrower under § 2241 than it is under § 2255 and that federal courts have

broad discretion under the original habeas corpus statute to fashion appropriate

relief as law and justice require.” Id. at 627 (quotation marks omitted). The

Second Circuit agreed, stating: “We also see no reason to view a court’s remedial


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powers more narrowly in a § 2241 motion than in a § 2255 motion.” Id. at 630.

Indeed, (now) Justice Sotomayor’s opinion also indicated the § 2241 court could

rely on the habeas petitioner’s original PSR in resentencing him. Id. at 632–34.

Triestman provides more than just a persuasive example that resentencing is an

available remedy under § 2241. It also demonstrates that sometimes it is necessary

and appropriate to recalculate a defendant’s sentencing guidelines in a § 2241

proceeding to achieve the purposes of sentencing mandated by Congress in 18

U.S.C. § 3553(a).

      2.     THE TIME FOR MEASURING FORECLOSURE

      My second concern about the Majority’s opinion is the announcement of a

five-part test for determining the availability of savings clause relief:

                    To show his prior § 2255 motion was “inadequate
             or ineffective to test the legality of his detention,” Bryant
             must establish that (1) throughout his sentencing, direct
             appeal, and first § 2255 proceeding, our Circuit’s binding
             precedent had specifically addressed Bryant’s distinct
             prior state conviction that triggered § 924(e) and had
             squarely foreclosed Bryant’s § 924(e) claim that he was
             erroneously sentenced above the 10-year statutory
             maximum penalty in § 924(a); (2) subsequent to his first
             § 2255 proceeding, the Supreme Court’s decision in
             Begay, as extended by this Court to Bryant’s distinct
             prior conviction, overturned our circuit precedent that
             had squarely foreclosed Bryant’s § 924(e) claim; (3) the
             new rule announced in Begay applies retroactively on
             collateral review; (4) as a result of Begay’s new rule
             being retroactive, Bryant’s current sentence exceeds the
             10-year statutory maximum authorized by Congress in §
             924(a); and (5) the savings clause in § 2255(e) reaches

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              his pure § 924(e)-Begay error claim of illegal detention
              above the statutory maximum penalty in § 924(a).

Maj. Op. at 45–46. Of course I am aware that in Williams v. Warden, Fed. Bureau

of Prisons this Court established that in order for a habeas petitioner to get relief

under the savings clause, she must establish that relief was foreclosed to her, by

binding circuit precedent, not only at the time of the first § 2255 motion, but also at

the time of the trial and the time of the direct appeal. 713 F.3d 1332, 1349–50

(11th Cir. 2013). As I have said before, I read nothing in the statute which requires

this. See Williams, 713 F.3d at 1350–56 (Martin, J., dissenting). I adhere to my

dissenting views on this subject in Williams. Id.

       The savings clause simply provides that a § 2241 petition “shall not be

entertained if it appears that the applicant has failed to apply for relief . . . to the

court which sentenced him, or that such court has denied him relief, unless it also

appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the

legality of his detention.” 28 U.S.C. § 2255(e). Nowhere in this savings clause

provision did Congress mention that in order to get relief now, a petitioner had to

have been foreclosed from getting relief the time of trial, and sentencing, and his

direct appeal. The statute only refers to the relevant time period as the denial of

the § 2255 motion (if one was filed) and the present. Based on my reading,




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therefore, the relevant point for measuring circuit foreclosure is at the time the first

§ 2255 motion was adjudicated, not the time of sentencing or direct appeal.10

       Once again, one of our three consolidated cases (McKinney v. FCC

Coleman, No. 12-12953), demonstrates the denial of justice that can result from

requiring foreclosure of the habeas claim at the time of trial and direct appeal.

Circuit precedent did not foreclose the argument that a prior offense of carrying a

concealed firearm was not a “violent felony” at the time of Mr. McKinney’s trial

and direct appeal. He raised the issue at his trial and in his direct appeal. In fact, it

was his case (specifically that of his co-defendant) that established the circuit

precedent that foreclosed him from raising the issue at the time of his first § 2255

motion. See United States v. Hall, 77 F.3d 398, 401–02 (11th Cir. 1996) (holding

that carrying a concealed weapon in violation of Florida law constituted a “violent

felony” under the ACCA), abrogation recognized by Williams, 713 F.3d at 1346.

       And our Court will now likely deny relief to Mr. McKinney because the

relief he seeks was not foreclosed to him at the time of his trial and direct appeal.

And if we do this, we will do so in spite of the fact that the government has not



       10
            Of course, whether a defendant preserved his objection at the time of sentencing and
direct appeal may be relevant to the non-jurisdictional determination of procedural default. See,
e.g., Sawyer v. Holder, 326 F.3d 1363, 1366–67 (11th Cir. 2003) (applying the procedural
default rule to a § 2241 petition); see also Shukwit v. United States, 973 F.2d 903, 904 (11th Cir.
1992) (recognizing that procedural default rule is not jurisdictional, but is an affirmative defense
that can be waived).


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argued that this should preclude Mr. McKinney from savings clause relief. Indeed

quite to the contrary, the government’s position is that Mr. McKinney is entitled to

savings clause relief. Surely equity requires relief for Mr. McKinney when he:

preserved his ACCA argument at trial; pursued it on direct appeal; and we wrongly

decided the issue against him, thereby mistakenly establishing the circuit precedent

that carrying a concealed firearm is a violent felony under the ACCA. The

Majority Rule would deny him relief because he was the first to raise the issue.

The proper inquiry under the savings clause should be the one intended by

Congress: whether the “remedy by [§ 2255] motion is inadequate or ineffective to

test the legality of his detention.” 28 U.S.C. § 2255(e). We ignore the mandate of

the statute when we also require that the direct appeal be ineffective or inadequate.

      3.     WHO DECIDES WHEN CIRCUIT PRECEDENT IS BUSTED

      My final concern relates to the Majority’s apparent endorsement of the view

that, “[u]nder Williams’s analysis, circuit precedent would still ‘squarely foreclose’

any Begay-based sentencing claim unless and until Begay’s holding was extended

to a discrete situation involving a specific prior state conviction.” Maj. Op. at 48.

While I agree that Begay did not abrogate “all of this Court’s pre-Begay violent

felony jurisprudence,” Maj. Op. at 47 (quoting Williams, 713 F.3d at 1347), I do

not agree that savings clause relief is only available after this Court recognizes that




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Begay, or any other retroactively applicable Supreme Court decision, has busted

circuit precedent.

      Certainly, explicit recognition by this Court that a Supreme Court decision

abrogated a prior precedent would be sufficient. See, e.g., Archer, 531 F.3d at

1352 (holding that Begay “is clearly on point and has undermined Gilbert to the

point of abrogation”). But express abrogation by us may not always be necessary.

To the extent the Majority opinion implies otherwise, it suggests that District

Courts are not required to apply controlling Supreme Court precedent unless and

until this Court first recognizes that the Supreme Court has abrogated our own

prior precedent. However, “[a] circuit court’s decision binds the district courts

sitting within its jurisdiction while a decision by the Supreme Court binds all

circuit and district courts.” McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir.

2004). When the Supreme Court announces new rules of law, including

retroactively applicable cases involving statutory interpretation, District Courts are

bound by those decisions, from the date of the Supreme Court’s decision forward.

      4.     CONCLUSION

      For the reasons I have discussed here, I concur with the Majority’s

conclusion that § 2241 relief is available to Mr. Bryant because he was sentenced

above the statutory maximum. I dissent to those portions of the Majority’s opinion

that go beyond what the statute provides in narrowing both the class of prisoners


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who stand to benefit from savings clause relief for pure Begay errors and the

remedy available to them once they get that relief.




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