              Case: 17-13788   Date Filed: 10/18/2018   Page: 1 of 5


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-13788
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket Nos. 1:16-cv-22608-JIC,
                             1:03-cr-20226-JIC-8


COREY KIRKPATRICK STERLING,

                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                               (October 18, 2018)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Corey Sterling appeals from the district court’s order denying his 28 U.S.C.

§2255 motion to vacate. This Court granted Sterling a certificate of appealability
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on two issues: (1) whether the district court erred in denying Sterling’s claim that

he was unconstitutionally sentenced under the then-mandatory sentencing

guidelines in light of Johnson v. United States, 135 S. Ct. 2551 (2015); and

(2) whether In re Griffin, 823 F.3d 1350 (11th Cir. 2016), which denied an

application for a second or successive motion under § 2255, is binding precedent

on the merits of Sterling’s § 2255 motion. Because Griffin answers the first

question in the negative, and because Griffin is binding precedent in this collateral

proceeding based on our recent decision in United States v. St. Hubert, 883 F.3d

1319 (11th Cir. 2018), we affirm the denial of Sterling’s § 2255 motion.1

       To briefly recap the legal background, the Armed Career Criminal Act

(“ACCA”) requires a prison sentence of at least fifteen years for a defendant who

is convicted of unlawfully possessing a firearm and who has at least three prior

convictions for either violent felonies or serious drug offenses. In Johnson, the

Supreme Court held that a portion of the ACCA’s definition of “violent felony”—

commonly called the residual clause—was unconstitutionally vague. Johnson, 135

S. Ct. at 2557–58, 2563. The Court then made that new rule retroactive, making

clear that it applies to cases on collateral review. Welch v. United States, 136 S.

Ct. 1257, 1265 (2016).


       1
         When reviewing the district court’s denial of a § 2255 motion, we review questions of
law do novo and findings of fact for clear error. Spencer v. United States, 773 F.3d 1132, 1137
(11th Cir. 2014) (en banc).
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      Like the ACCA, the Sentencing Guidelines also provide enhanced penalties

for recidivist offenders. Specifically, the “career offender” guideline substantially

increases the guideline range of a defendant who, among other requirements, has at

least two prior convictions for crimes of violence or controlled-substance offenses.

U.S.S.G. § 4B1.1(a). At the time of Sterling’s sentencing, and until quite recently,

the guidelines defined the term “crime of violence” in materially similar terms as

the term “violent felony” in the ACCA, including the residual-clause language that

Johnson invalidated in the ACCA. See U.S.S.G. § 4B1.2(a) (2002).

      Following Johnson, this Court held in United States v. Matchett that

Johnson did not render the residual clause of the career-offender guideline

unconstitutional because the vagueness doctrine does not apply to advisory

guidelines.   802 F.3d 1185, 1194–96 (11th Cir. 2015).         The Supreme Court

subsequently adopted that same view in Beckles v. United States, holding that “the

advisory Sentencing Guidelines are not subject to a vagueness challenge under the

Due Process Clause and that § 4B1.2(a)’s residual clause is not void for

vagueness.” 137 S. Ct. 886, 895 (2017).

      Neither Matchett nor Beckles addressed whether the vagueness doctrine

applies to mandatory guidelines. See id. at 903 n.4 (Sotomayor, J., concurring)

(noting that the Court’s adherence to the distinction between mandatory and

advisory rules leaves open the question whether defendants sentenced under the


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mandatory guidelines may mount vagueness attacks on their sentences). Because

Sterling was sentenced before United States v. Booker, 543 U.S. 220 (2005), when

the guidelines were still mandatory, Matchett and Beckles left open the possibility

that Sterling could challenge the residual clause of the mandatory guidelines on

vagueness grounds.

      That brings us to Griffin. In Griffin, which denied an application for a

second or successive motion under § 2255, we extended the holding of Matchett to

the mandatory guidelines.      823 F.3d at 1354 (“[T]he logic and principles

established in Matchett also govern our panel as to Griffin’s guidelines sentence

when the Guidelines were mandatory.”). We held that “[t]he Guidelines—whether

mandatory or advisory—cannot be unconstitutionally vague because they do not

establish the illegality of any conduct and are designed to assist and limit the

discretion of the sentencing judge.” Id.

      Sterling concedes that Griffin, if binding, forecloses his Johnson-based

vagueness challenge to the mandatory guidelines. To avoid that outcome, he

argues that Griffin is not binding for two reasons: (1) it was decided in the context

of an application to file a second or successive § 2255 motion, so it’s not binding

precedent outside of that context; and (2) Beckles, which was decided after Griffin,

undermines Griffin to the point of abrogation. Both arguments are unavailing.




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      First, we recently held in St. Hubert that “law established in published three-

judge orders issued pursuant to 28 U.S.C. § 2244(b) in the context of applications

for leave to file second or successive § 2255 motions are binding precedent on all

subsequent panels of this Court, including those reviewing direct appeals and

collateral attacks.” 883 F.3d at 1329. Under St. Hubert, which was decided on

direct appeal, we are bound by Griffin’s holding that Johnson does not apply to the

residual clause of the mandatory career-offender guideline, even if we may believe

that Griffin was wrongly decided. See United States v. Steele, 147 F.3d 1316,

1317–18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel

cannot overrule a prior one’s holding even though convinced it is wrong.”).

      Second, the Supreme Court’s decision in Beckles does not abrogate Griffin

because Beckles did not decide or address whether the vagueness doctrine applies

to the mandatory guidelines. For a Supreme Court decision to overcome the prior-

precedent rule, it must be “squarely on point” and “actually abrogate or directly

conflict with, as opposed to merely weaken, the holding of the prior panel.”

United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). Because Beckles is

not “squarely on point” and does not directly conflict with Griffin, we remain

bound by Griffin.

      In sum, we affirm the district court’s denial of Sterling’s § 2255 motion.

      AFFIRMED.


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