                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2424
                         ___________________________

                                     Jeffrey Russo,

                        lllllllllllllllllllllPetitioner - Appellant,

                                            v.

                              United States of America,

                       lllllllllllllllllllllRespondent - Appellee.
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                              Submitted: May 17, 2018
                              Filed: September 6, 2018
                                   ____________

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

       Jeffrey Russo sought post-conviction relief in the district court1 on the ground
that his sentence was imposed in violation of the Constitution. Russo was sentenced
under the United States Sentencing Guidelines when they were mandatory. He

      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
asserts that in light of Johnson v. United States, 135 S. Ct. 2551 (2015), the district
court violated his rights under the Due Process Clause by sentencing him as a career
offender based on the residual clause of USSG § 4B1.2(a)(2). The district court
dismissed Russo’s claim as untimely on the view that Johnson did not recognize the
right that Russo asserts, and that Russo thus could not benefit from the limitations
period in 28 U.S.C. § 2255(f)(3). Russo appeals, and we affirm.

                                          I.

       In 2004, Russo pleaded guilty to various drug and firearm offenses. The
parties agree that the court sentenced Russo as a career offender under USSG
§ 4B1.1, with a guideline range of 646 to 711 months’ imprisonment. The court
arrived at a guideline sentence of 646 months and then reduced the term to 235
months for reasons unrelated to his career-offender status. Russo argues that if the
court had not sentenced him as a career offender, then the guideline range would have
been lower, and his final sentence would have been shorter.

      After Russo was sentenced, the Supreme Court declared the sentencing
guidelines effectively advisory. United States v. Booker, 543 U.S. 220, 245 (2005).
In 2015, the Court in Johnson announced a new rule of constitutional law by
declaring unconstitutionally vague the so-called “residual clause” of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). 135 S. Ct. at 2563.

      Within one year of Johnson, Russo moved to vacate his sentence under 28
U.S.C. § 2255. Russo asserted that the district court relied on the residual clause of
USSG § 4B1.2(a)(2) to conclude that he was a career offender under the guidelines.
Russo argued that the residual clause in § 4B1.2(a)(2) was unconstitutionally vague
because it was almost identical to the ACCA’s residual clause held unconstitutional
in Johnson. Thus, Russo urged, the court should vacate his sentence because it was



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calculated based on an unconstitutionally vague provision in the mandatory
guidelines.

        After Russo filed his motion, the Supreme Court held that Johnson applies
retroactively to cases on collateral review. Welch v. United States, 136 S. Ct. 1257,
1265 (2016). In Beckles v. United States, 137 S. Ct. 886 (2017), however, the Court
ruled that the residual clause of § 4B1.2(a)(2) in the post-Booker advisory guidelines
is not subject to a vagueness challenge. Id. at 890. Following these decisions, Russo
argued that Johnson supported his claim because the mandatory guidelines “fix” a
defendant’s sentence like the statute in Johnson, and that the advisory guidelines at
issue in Beckles are distinguishable because of their flexibility.

       The district court dismissed Russo’s motion as untimely. The court reasoned
that Russo’s motion was timely only if he filed it within one year of “the date on
which the right asserted was initially recognized by the Supreme Court.” 28 U.S.C.
§ 2255(f)(3). The court concluded that Russo’s claimed right to be sentenced without
reference to the residual clause of the mandatory guidelines required “an extension,
not an application, of the rule announced in Johnson.” The court therefore ruled that
the Supreme Court had not recognized the right that Russo asserted, and that his
motion was untimely. We review the district court’s determination de novo. Anjulo-
Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008).

                                         II.

      28 U.S.C. § 2255 provides that a federal prisoner “may move the court which
imposed [his] sentence to vacate, set aside or correct the sentence” if the sentence
“was imposed in violation of the Constitution or laws of the United States.” Id.
§ 2255(a). A prisoner typically must file a motion under § 2255 within one year of
the date on which the judgment of conviction becomes final. Id. § 2255(f)(1). He
may file at a later date, however, if the motion comes within one year of “the date on

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which the right asserted was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.” Id. § 2255(f)(3). Russo filed his motion more than ten
years after his conviction became final, but he contends that his motion is timely
under § 2255(f)(3) because he filed it within one year of Johnson.

       Russo asserts a right under the Due Process Clause to be sentenced without
reference to the residual clause of § 4B1.2(a)(2) under the mandatory guidelines.
Whether Johnson restarted the one-year limitations period turns on whether Johnson
“newly recognized” this asserted right. As we have explained, the inquiry into
whether a right is “newly recognized” under § 2255(f)(3) tracks the analysis used to
determine “whether the Supreme Court announced a ‘new rule’ within the meaning
of the Court’s jurisprudence governing retroactivity for cases on collateral review.”
Headbird v. United States, 813 F.3d 1092, 1095 (8th Cir. 2016); see Teague v. Lane,
489 U.S. 288, 301 (1989) (plurality opinion). Thus, the timeliness of Russo’s claim
depends on whether he is asserting the right initially recognized in Johnson or
whether he is asserting a different right that would require the creation of a second
new rule. See Donnell v. United States, 826 F.3d 1014, 1017 (8th Cir. 2016). If
Johnson merely “serves as a predicate for urging adoption of another new rule that
would recognize the right asserted by” Russo, then he cannot benefit from the
limitations period under § 2255(f)(3). Id.

       “[A] case announces a new rule if the result was not dictated by precedent
existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at
301. A rule is not dictated by existing precedent “unless it would have been ‘apparent
to all reasonable jurists.’” Chaidez v. United States, 568 U.S. 342, 347 (2013)
(quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)). In other words, if the
result sought is “susceptible to debate among reasonable minds,” then the movant
seeks declaration of a new rule. Butler v. McKellar, 494 U.S. 407, 415 (1990).



                                         -4-
       Russo’s asserted right is not dictated by Johnson. It is reasonably debatable
whether Johnson’s holding regarding the ACCA extends to the former mandatory
guidelines. When the guidelines were still mandatory, this court held that “the
limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s
right to due process by reason of being vague.” United States v. Wivell, 893 F.2d
156, 160 (8th Cir. 1990). One circuit has adhered to this view after Johnson. In re
Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016). Johnson did not address the
sentencing guidelines, and Beckles rejected a vagueness challenge to the advisory
guidelines. Both decisions recognized that vagueness principles apply to “statutes
fixing sentences,” Johnson, 135 S. Ct. at 2557; Beckles, 137 S. Ct. at 892, but neither
addressed possible distinctions between a provision that establishes a statutory
penalty and a mandatory guideline provision that affects sentences within a statutory
range, subject to authorized departures. Cf. Beckles, 137 S. Ct. at 894 (“If a system
of unfettered discretion is not unconstitutionally vague, then it is difficult to see how
the present system of guided discretion could be.”)

       The better view is that Beckles “leaves open the question” whether the
mandatory guidelines are susceptible to vagueness challenges. 137 S. Ct. at 903 n.4
(Sotomayor, J., concurring in the judgment); see also United States v. Ellis, 815 F.3d
419, 421 (8th Cir. 2016). Because the question remains open, and the answer is
reasonably debatable, Johnson did not recognize the right asserted by Russo. Russo
thus cannot benefit from the limitations period in § 2255(f)(3), and the district court
correctly dismissed his motion as untimely. Accord United States v. Green, No. 17-
2906, 2018 WL 3717064, at *5 (3d Cir. Aug. 6, 2018); United States v. Greer, 881
F.3d 1241, 1247 (10th Cir. 2018); United States v. Brown, 868 F.3d 297, 299 n.1,
301-03 (4th Cir. 2017); Raybon v. United States, 867 F.3d 625, 629-31 (6th Cir.
2017).

      Only the Seventh Circuit has concluded that Johnson restarts the limitations
period for a prisoner raising a vagueness challenge to the residual clause in the

                                          -5-
mandatory guidelines. See Cross v. United States, 892 F.3d 288, 293-94 (7th Cir.
2018). That court thought the contrary view reads the term “asserted” out of the
statute and “improperly reads a merits analysis into the limitations period.” Id. The
term “asserted,” however, is essential to our analysis, because we must identify the
“right asserted” by the prisoner before we can determine whether that same right has
been recognized by the Supreme Court. We conclude that Johnson did not recognize
the right asserted, but we do not resolve the merits of Russo’s constitutional claim
that a sentence based on a residual clause in the mandatory guidelines violates the
Due Process Clause. Insofar as determining whether Russo’s proposed rule is
dictated by Johnson or open to reasonable debate involves some consideration of the
merits, the inquiry is required by § 2255(f)(3) and not improper.

                                  *      *       *

      The judgment of the district court is affirmed.
                     ______________________________




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