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                                                                             [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                 ________________________

                                  No. 16-13013-J, 16-13232-J
                                 ________________________

IN RE: DENNIS D. WILLIAMS,

                                                                                        Petitioner.

                                __________________________

                      Application for Leave to File a Second or Successive
                                 Motion to Vacate, Set Aside,
                           or Correct Sentence, 28 U.S.C. § 2255(h)
                                _________________________

Before HULL, MARCUS and JULIE CARNES, Circuit Judges.

B Y T H E P A N E L:

       Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Dennis D. Williams has filed an

application seeking an order authorizing the district court to consider a second or successive

motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization

may be granted only if this Court certifies that the second or successive motion contains a claim

involving:

              (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.
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28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a prima facie showing that the

application satisfies the requirements of this subsection.”         Id. § 2244(b)(3)(C); see also

Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this

Court’s determination that an applicant has made a prima facie showing that the statutory criteria

have been met is simply a threshold determination).

       Williams has filed two applications—one through counsel and one pro se—indicating that

he wishes to raise one claim in a second or successive § 2255 motion. Because the applications

raise substantially the same claim, we consider them together. In the applications, Williams

asserts that his claim relies upon a new rule of constitutional law, citing Johnson v. United States,

576 U.S. __, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), in which the Supreme Court held that the

residual clause of the violent felony definition in the Armed Career Criminal Act (“ACCA”) is

unconstitutionally vague and that imposing an increased sentence under that provision, therefore,

violates due process. He also cites Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 194 L.

Ed. 2d 387 (2016), in which the Supreme Court held that Johnson announced a new substantive

rule that applies retroactively to cases on collateral review. Specifically, Williams argues that the

district court enhanced his sentence pursuant to the residual clause of the ACCA and, as a result,

violated his due process rights. He also argues that his sentence was enhanced under the

career-offender guideline, and that he was subject to a mandatory life sentence under 21 U.S.C.

§§ 841(b)(1)(A) and 851 and 18 U.S.C. § 3559(c), and that the ruling in Johnson should be

extended to render those enhancements unconstitutionally vague.




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         The ACCA defines the term “violent felony” as any crime punishable by a term of

imprisonment exceeding one year that:

         (i)    has as an element the use, attempted use, or threatened use of physical force
                against the person of another; or

         (ii)   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). The first prong of this definition is sometimes referred to as the

“elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is

commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir.

2012).

         Section 4B1.1 of the Sentencing Guidelines provides that a defendant is classified as a

career offender if (1) he was at least 18 years old at the time of the offense of conviction; (2) the

offense of conviction was either a crime of violence or a controlled substance offense; and (3) he

had at least two prior felony convictions of either a crime of violence or a controlled substance

offense. U.S.S.G. § 4B1.1(a). The guidelines define “crime of violence” as any offense under

federal or state law that is punishable by imprisonment for more than one year and:

         (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).

         Under the federal “three-strikes” statute, 18 U.S.C. § 3559(c), a person who is convicted of

a “serious violent felony” shall receive a mandatory sentence of life imprisonment if he has


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previously been convicted of two or more “serious violent felonies,” or one or more “serious

violent felonies” and one or more serious drug offenses. 18 U.S.C. § 3559(c); see United States v.

Fulford, 267 F.3d 1241, 1247 (11th Cir. 2001). For purposes of § 3559(c), “serious violent

felony” includes various enumerated crimes as well as

       any other offense punishable by a maximum term of imprisonment of 10 years or
       more that has an element the use, attempted use, or threatened use of physical force
       against the person of another or that, by its nature, involves a substantial risk that
       physical force against the person of another may be used in the course of
       committing the offense.

18 U.S.C. § 3559(c)(2)(F).

       According to 21 U.S.C. § 841(b)(1)(A)(ii), a person who manufactures, distributes,

dispenses, or possesses with intent to distribute 5 kilograms or more of a mixture or substance

containing cocaine shall be sentenced to a term of imprisonment of 10 years to life. 21 U.S.C.

§ 841(b)(1)(A)(ii); see also id. § 841(a)(1). Such a person shall be subject to a mandatory life

sentence if he commits the offense “after two or more prior convictions for a felony drug offense

have become final,” and the government files an information setting forth the prior convictions

pursuant to § 851. 21 U.S.C. §§ 841(b)(1)(A), 851(a).

       On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA

is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by

a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at ___, 135

S. Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is

void, it did not call into question the application of the elements clause and the enumerated crimes

of the ACCA’s definition of a violent felony. Id. at ___, 135 S. Ct. at 2563.




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       Thereafter, in September 2015, we issued a decision in United States v. Matchett, 802 F.3d

1185, 1193-96 (11th Cir. 2015), holding that the vagueness doctrine, upon which the Supreme

Court invalidated the ACCA’s residual clause in Johnson, did not similarly apply to advisory

Sentencing Guidelines. We explained that the vagueness doctrine applies both to statutes that

define elements of crimes and to statutes fixing sentences, but noted that “the advisory guidelines

do neither.” Id. at 1194. We then emphasized that, because the pre-Guidelines sentencing

scheme that gave plenary discretion to sentencing judges did not violate the notice requirement of

the Due Process Clause, advisory guidelines that merely “inform a sentencing judge’s discretion

also cannot violate the notice requirement.” Id. at 1194-95. Finally, we explicitly rejected

Matchett’s policy-based argument that allowing the identically worded residual clause in §

4B1.2(a) to stand would upend the sentencing process by forcing sentencing courts to apply a

clause that Johnson determined to lack precise meaning. Id. at 1195. We explained that

       Although Johnson abrogated the previous decisions of the Supreme Court
       interpreting the residual clause of the Armed Career Criminal Act, sentencing
       courts interpreting the residual clause of the guidelines must still adhere to the
       reasoning of cases interpreting the nearly identical language in the Act.
       [Matchett’s] policy concern is properly addressed to the United States Sentencing
       Commission . . . .

Id. at 1195-96.

       In its April 18, 2016, Welch opinion, the Supreme Court explained that, by striking down

the ACCA’s residual clause as void for vagueness, Johnson changed the ACCA’s substantive

reach and altered “the range of conduct or the class of persons that the [Act] punishes.” Id. at

___, 136 S. Ct. at 1265 (brackets in original) (quotation omitted).     Applying the retroactivity

framework set forth in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989),

and its progeny, the Court further stated that Johnson was not a procedural decision because it

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“had nothing to do with the range of permissible methods a court might use to determine whether

a defendant should be sentenced under the [ACCA].” Id.          Accordingly, the Court ruled that

“Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on

collateral review.”   Id.

       Thereafter, in In re Griffin, No. 16-12012, manuscript op. at 7-10 (11th Cir. May 25,

2016), we held that an applicant seeking leave to raise a Johnson-based challenge to his career

offender enhancement, which was imposed when the Sentencing Guidelines were mandatory, did

not make a prima facie showing that his claim satisfied the criteria of § 2255(h)(2) because he

was not sentenced under the ACCA or beyond the statutory maximum for his crime.           In doing

so, we concluded that “logic and principles established in Matchett also govern . . . when the

Guidelines were mandatory.” Id. at 7.      We reasoned that the Guidelines, whether advisory or

mandatory, cannot be unconstitutionally vague because they do not establish the illegality of any

conduct and are designed to limit and assist the sentencing judge’s discretion. Id. at 7-8.

       Furthermore, we concluded in Griffin that the Supreme Court’s ruling in Welch did not

“make[] Johnson retroactive for purposes of a second or successive § 2255 motion premised on

the applicability of Johnson to a guidelines challenge, just because the guidelines challenge

happens to be based on the residual clause.”        Id. at 8.    We reasoned that, whereas the

“application of Johnson to the ACCA was a substantive change in the law because it altered the

statutory range of permissible sentences,” a rule that extended Johnson to the residual clause of

the career offender guideline would only establish that the guideline range had been incorrectly

calculated within the statutory boundaries.    Id. at 8-9.   Thus, the extension of Johnson to a

guidelines context would only create changes in “how the sentencing procedural process is to be


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conduct—changes that are not entitled to retroactive effect in cases on collateral review in a

second or successive § 2255 motion.” Id. at 9.

       Here, Williams was convicted by a jury in 2008 of conspiracy to possess with intent to

distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)

(Count 1); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18

U.S.C. §§ 924(c) and 2 (Count 2); and possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 3). He was sentenced as a career offender under the

Guidelines based on: (1) a 1989 Florida conviction on three counts of armed robbery with a deadly

weapon, all of which were part of the same criminal episode, and (2) a 2004 Florida conviction for

aggravated assault with a weapon and shooting at a vehicle, which were part of the same criminal

episode. He was also sentenced as an armed career criminal under the ACCA on only Count 3.

Before Williams was convicted, the government filed a § 851 notice stating that Williams had the

following felony drug convictions that subjected him to a mandatory life sentence for Count 1

under § 841(b)(1)(A): (1) a 1990 Florida conviction for sale of a counterfeit drug; and (2) a 1994

Florida conviction for possession of cocaine. As a result of his sentencing enhancements from his

prior drug convictions, Williams was subject to a mandatory life sentence for Count 1 under 21

U.S.C. § 841(b)(1)(A) and a mandatory consecutive five-year sentence for Count 2 under 18

U.S.C. § 924(c)(1).    In 2009, the district court sentenced Williams to two concurrent life

sentences for Counts 1 and 3, and a 5-year consecutive sentence for Count 2.

       To the extent Williams relies on Johnson to invalidate his mandatory life sentence for

Count 1 under 18 U.S.C. § 3559(c), his claim fails because the record shows he was not sentenced

under § 3559(c). Instead, he was sentenced to a mandatory life sentence on Count 1 pursuant to


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21 U.S.C. § 841(b)(1)(A). Since the § 841(b)(1)(A) mandatory life sentence is triggered by prior

convictions for a “felony drug offense,” it is not even arguably affected by Johnson’s holding

regarding the ACCA’s residual-clause definition of a violent felony.

       To the extent Williams relies on Johnson to invalidate his sentence enhancement under the

career-offender guidelines, his claim also fails. Even though the Supreme Court has held in

Welch that Johnson applies retroactively to cases on collateral review, our binding precedent holds

that Welch does not make Johnson retroactive for purposes of filing a successive § 2255 motion

raising a Johnson-based challenge to the Sentencing Guidelines. See Griffin, No. 16-12012,

manuscript op. at 8-9; Welch, 578 U.S. at ___, 136 S. Ct. at 1264-65. Furthermore, Williams

cannot make a prima facie showing that Johnson applies to his career-offender claim in light of our

holdings in Matchett and Griffin that the Sentencing Guidelines—whether advisory or

mandatory—cannot be unconstitutionally vague. See Griffin, No. 16-12012, manuscript op. at 7;

Matchett, 802 F.3d at 1195.

       Finally, as for his claim that his ACCA-enhanced sentence on his conviction for Count 3 is

invalid in light of Johnson, Williams has made a prima facie showing that he meets the statutory

criteria, but we nevertheless deny his application. As the record shows, the district court did not

identify which ACCA clause it used in counting Williams’s three ACCA predicate convictions,

and it is not clear that he has more than two predicate convictions after Johnson. Accordingly,

Williams has presented a prima facie showing that his designation as an armed career criminal

under the ACCA, which subjected him to a mandatory minimum sentence of 15 years and a

statutory maximum sentence of life imprisonment—which he received—for Count 3, falls within

the scope of the rule announced in Johnson.


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       Importantly, however, Williams received a concurrent mandatory life sentence on Count 1

that was unrelated to his ACCA status. See 21 U.S.C. § 841(b)(1)(A). We have held under the

“concurrent sentence doctrine” that, if a defendant has concurrent sentences on multiple counts of

conviction and one count is found to be invalid, an appellate court need not consider the validity of

the other counts unless the defendant would suffer “adverse collateral consequences from the

unreviewed conviction.”     United States v. Bradley, 644 F.3d 1213, 1293 (11th Cir. 2011)

(quotations omitted) (decided on direct appeal). Additionally, we have said, in the § 2255(e)

savings-clause context, that a defendant could not successfully challenge his detention under the

savings clause where his erroneous ACCA sentence exceeded the statutory maximum on only one

count of conviction because “if a prisoner is serving multiple sentences, his detention may be legal

even if one of his sentences is not.” Brown v. Warden, FCC Coleman-Low, 817 F.3d 1278,

1284-85 (11th Cir. 2016). In United States v. Pacchioli, a direct appeal case, we held, in the

alternative, that any error in sentencing as a result of multiplicitous counts was harmless where the

arguably multiplicitous counts resulted in concurrent sentences. 718 F.3d 1294, 1308 (11th Cir.

2013). Finally, the former Fifth Circuit affirmed the denial of an initial § 2255 motion to vacate

based on the concurrent sentence doctrine where the defendant attacked the validity of only one

judgment of conviction, for which he was sentenced concurrently with his sentences for other

violations. Streator v. United States, 431 F.2d 567, 568 (5th Cir. 1970).

       Based on the record, it appears that Williams’s potential Johnson claim would impact only

his sentence for Count 3. Although we have not directly applied harmless error or the concurrent

sentence doctrine in the context of an application to file a second or successive § 2255 motion, see

Bradley, 644 F.3d at 1293; Brown, 817 F.3d at 1284-85; Pacchioli, 718 F.3d at 1308; Streator, 431


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F.2d at 568, we have said in the § 2255(h) context that “[a]n applicant must show a reasonable

likelihood that he would benefit from the new rule he seeks to invoke in a second or successive

petition.” In re Henry, 757 F.3d 1151, 1162 (11th Cir. 2014) (citing, inter alia, In re Vassell, 751

F.3d 267, 270–71 (4th Cir. 2014) (“[W]hile our primary consideration in reviewing a request for

authorization in this kind of case is whether the applicant made the requisite prima facie showing

about a new rule of constitutional law, nothing in either § 2255 or § 2244 requires us to ignore

other considerations and authorize the filing of a successive § 2255 motion that, for instance,

would clearly be time-barred. The statute, we conclude, simply does not require such an exercise

in futility.”)); accord In re Hires, __ F.3d __, 2016 WL 3342668, at *2 (11th Cir. June 15, 2016)

(“When a petitioner seeks leave to pursue a successive § 2255 motion under § 2255(h)(2), we have

held that a petitioner must demonstrate a ‘reasonable likelihood’ that they will benefit from a new,

retroactive, and previously unavailable constitutional rule in order to make a prima facie showing

that their application satisfies the requirements of §§ 2244(b) and 2255(h).”).

        In this case, although Williams has made a prima facie showing under Johnson as to Count

3, he is unable to show that he would “benefit” from Johnson, since he received a concurrent

mandatory life sentence on Count 1 that was unrelated to his ACCA status and is unaffected by

Johnson. Nor has he made any showing of adverse collateral consequences in this instance.

Because “nothing in either § 2255 or § 2244 requires us to . . . authorize the filing of a successive §

2255 motion that . . . would clearly be . . . an exercise in futility,” In re Vassell, 751 F.3d at 271, we

cannot grant Williams leave to file a second or successive § 2255 motion that can provide him no

relief in the district court at this time.




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       Accordingly, Williams has not demonstrated that he will benefit from Johnson, and his

applications for leave to file a second or successive § 2255 motion are hereby DENIED.




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