     Case: 16-10328       Document: 00513553287         Page: 1    Date Filed: 06/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-10328
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
In re: DEQUINTAN ARNICK,                                                     June 17, 2016
                                                                            Lyle W. Cayce
                                                  Movant                         Clerk



                          Motion for an order authorizing
                     the United States District Court for the
                   Northern District of Texas, Dallas to consider
                       a successive 28 U.S.C. § 2255 motion


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Dequintan Arnick, federal prisoner # 39501-177, moves for authorization
to file a successive 28 U.S.C. § 2255 motion. He may file a successive motion
if he makes a prima facie showing that his motion “contain[s]” either “newly
discovered evidence that . . . would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty,” or “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.”
§ 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 897–98 (5th Cir.
2001). Arnick relies on the “new rule” prong of the statute.



       *The opinions in this case have been circulated to all active judges on the court. The
following members of the court agree that successive 28 U.S.C. § 2255 motions seeking relief
under Johnson from the application of U.S.S.G. § 4B1.2(a)(2) should be denied: Judges Davis,
Jones, Smith, Clement, Owen, Southwick, Haynes, Higginson, and Costa.
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                                  No. 16-10328

      Arnick’s sentence was based in part on Section 2K2.1(a)(1) of the
Sentencing Guidelines, under which one of his prior convictions was deemed a
“crime of violence” pursuant to the “residual clause” of Guidelines Section
4B1.2(a)(2), which defines a “crime of violence” for purposes of Section
2K2.1(a)(1). United States v. Arnick, 418 F. App’x 334, 334 (5th Cir. 2011); see
§ 2K2.1 cmt. n.1. The Supreme Court has held that the residual clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally
vague.   Johnson v. United States, 135 S. Ct. 2551, 2555–57, 2563 (2015).
Arnick seeks application of Johnson to the identically worded residual clause
of Section 4B1.2(a)(2).
      Johnson announced a new rule of constitutional law that has been made
retroactive by the Supreme Court to cases on collateral review. Welch v. United
States, 136 S. Ct. 1257, 1264–65 (2016). However, Johnson did not address
Section 4B1.2(a)(2) of the Guidelines. See Johnson, 135 S. Ct. at 2555–57. Nor
has the Supreme Court held that a Guidelines enhancement that increases the
Guidelines range implicates the same due process concerns as a statute that
increases a statutory penalty. See United States v. Pearson, 910 F.2d 221, 223
(5th Cir. 1990); see also United States v. Wilson, 622 F. App’x 393, 405 n.51
(5th Cir. 2015), cert. denied, 136 S. Ct. 992 (2016).
      We note that even in direct appeals, rather than collateral review as
presented here, federal courts of appeals disagree on whether Johnson applies
to the Guidelines, demonstrating that the Supreme Court has not decided the
question. Compare Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015),
and United States v. Maldonado, 2016 WL 229833, at *3 (2d Cir. Jan. 20, 2016),
and United States v. Goodwin, 2015 WL 5167789, at *3 (10th Cir. Sept. 4, 2015)
(applying Johnson to Section 4B1.2(a)(2)), with United States v. Matchett, 802
F.3d 1185, 1194–95 (11th Cir. 2015) (Guidelines provisions are not subject to



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void-for-vagueness challenges).    Further, even if Johnson does implicate
Section 4B1.2(a)(2), the Supreme Court has not addressed whether this
arguably new rule of criminal procedure applies retroactively to cases on
collateral review.   Arnick has therefore not shown that he is entitled to
authorization to proceed based on Johnson.
      IT IS ORDERED that Arnick’s motion for authorization is DENIED. The
Office of the Federal Public Defender’s motion on Arnick’s behalf for the
appointment of a Federal Public Defender is also DENIED.




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                                       No. 16-10328

JENNIFER WALKER ELROD, Circuit Judge, dissenting. 1
       Dequintan Arnick seeks our permission to file a successive motion under
28 U.S.C. § 2255(h), in which he would argue that his sentence must be vacated
in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015). Johnson held that the Armed Career Criminal Act’s (ACCA)
residual clause is unconstitutionally vague, and Arnick would ask the district
court to extend Johnson’s holding to the identically worded provision of the
Sentencing Guidelines that was used to determine his sentence. See U.S.
Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S. Sentencing Comm’n 2010).
Because I would authorize this successive § 2255 motion to proceed, I
respectfully dissent.
       Congress has tasked us with screening successive § 2255 petitions before
they can be filed in the district court, but our review in this posture is modest:
we ask only whether “the application makes a prima facie showing” “that the
claim relies 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. § 2244(b)(2)(A), (b)(3)(C); see also id. § 2255(h)(2). 2 The rule announced
in Johnson is uncontrovertibly “a new rule of constitutional law, made



       1The opinions in this case have been circulated to all active judges on the court. The
following members of the court believe that successive 28 U.S.C. § 2255 motions seeking relief
under Johnson from the application of U.S.S.G. § 4B1.2(a)(2) should be authorized: Chief
Judge Stewart and Judges Jolly, Dennis, Prado, Elrod, and Graves.
       2  We have held that § 2255(h) incorporates § 2244’s standards and procedures for
filing successive habeas petitions. Reyes-Requena v. United States, 243 F.3d 893, 897–99 (5th
Cir. 2001). With regard to motions based on new rules, § 2255(h)(2) and § 2244(b)(2)(A)
contain a minor linguistic difference: § 2255(h)(2) requires that the movant show that his
motion “contain[s]” the qualifying new rule, whereas § 2244(b)(2)(A) requires that the movant
show that his claim “relies on” the new rule. Nevertheless, the two provisions codify
“identical” legal standards, In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005), and we have used
language in the two provisions interchangeably, including evaluating successive § 2255
motions using the “relies on a new rule” formulation from § 2244(b)(2)(A), e.g., In re Williams,
806 F.3d 322, 324 (5th Cir. 2015); In re Jackson, 776 F.3d 292, 293 (5th Cir. 2015).
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                                  No. 16-10328

retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” See Welch v. United States, 136 S. Ct. 1257, 1268
(2016). Accordingly, Arnick’s statutory burden reduces to only this: he must
“make[] a prima facie showing” that his claim “relies on” the rule announced
in Johnson.
      Arnick has met that burden. Arnick’s claim “relies on” Johnson, even if
he would need an extension of Johnson to get relief. The statute requires that
we ask whether the qualifying new rule substantiates the movant’s claim—not
whether it conclusively decides his claim. In In re Sparks, for example, a
successive § 2255 movant invoked the Supreme Court’s decision in Graham v.
Florida, 560 U.S. 48 (2010), even though Graham addressed only juvenile non-
homicide offenders, and the movant had been convicted of “aiding and abetting
a carjacking resulting in death.” 657 F.3d 258, 260 (5th Cir. 2011). We allowed
Sparks’s motion to proceed, reasoning that “he might be entitled to relief under
Graham.” Sparks, 657 F.3d at 262 (emphasis added). “We express[ed] no
opinion as to the ultimate merits of the motion,” content that “[t]he motion
surely contain[ed] 3 this nonfrivolous argument” based on Graham. Id. at 262
n.3. A successive § 2255 movant who seeks a non-frivolous extension of a
qualifying new rule “relies on” that new rule and should easily clear the modest
screening process prescribed for our court.
      Three of our sister circuits have published decisions considering whether
to authorize successive § 2255 motions that seek non-foreclosed extensions of
Johnson, and all three have authorized the motions to proceed. See In re
Hubbard, No. 15-276, 2016 WL 3181417, at *4 (4th Cir. June 8, 2016)
(authorizing successive § 2255 challenge to 18 U.S.C. § 16(b), as incorporated


      3  Sparks’s focus on whether the motion “contained” the Graham argument was in
reference to the language of § 2255(h)(2). 657 F.3d at 262 n.3; see supra note 2.

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into the Sentencing Guidelines, “because it is for the district court to determine
whether the new rule [announced in Johnson] extends to the movant’s case,
not for this court in this proceeding”); In re Pinder, No. 16-12084-J, 2016 WL
3081954, at *2 (11th Cir. June 1, 2016) (authorizing successive § 2255
challenge to 18 U.S.C. § 924(c)(3)(B) because “the law is unsettled on whether
the rule announced in Johnson invalidates [the movant’s] sentence”); In re
Encinias, No. 16-8038, 2016 WL 1719323, at *1–2 & n.2 (10th Cir. Apr. 29,
2016) (holding that challenge to U.S.S.G. § 4B1.2(a)(2) was “sufficiently based
on Johnson to permit authorization under § 2255(h)(2)”).
       In reaching the contrary conclusion, the majority opinion hinges on two
inapposite propositions: (1) the Supreme Court has not decided whether the
rule of Johnson applies to section 4B1.2(a)(2) of the Guidelines; and (2) even if
Johnson did hold by implication that section 4B1.2(a)(2) is unconstitutionally
vague, the Supreme Court has not made that rule retroactive to cases on
collateral review. These points miss the mark because the statute does not
require that the movant’s winning rule—i.e. “section 4B1.2(a)(2) of the
Guidelines is impermissibly vague”—must be “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court.” It
requires only that the movant rely on such a rule, and the rule of Johnson fits
the bill.
       The standard applied by the majority opinion is inconsistent with our
cases evaluating successive § 2254 and § 2255 motions that invoke multiple
Supreme Court cases in support of a single claim. In those circumstances, we
have inquired separately whether each invoked case announced a new
constitutional rule that the Supreme Court had made retroactive. See In re
Jackson, 776 F.3d 292, 294–96 (5th Cir. 2015); In re Elwood, 408 F.3d 211,
212–13 (5th Cir. 2005). That inquiry makes perfect sense where the movant’s


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                                 No. 16-10328

claim plausibly relies on any one of the invoked cases. See Jackson, 776 F.3d
at 293 (listing four cases that the movant “relies on”). But our inquiry was
completely extraneous if we could have asked whether the movant’s winning
rule had been made retroactive by the Supreme Court, as the majority opinion
does here.
      Importantly, § 2255 does not require that we decide whether the
movant’s requested extension of the new rule is meritorious, so long as it is not
foreclosed by our precedent or otherwise frivolous. Congress has instructed us
to determine only whether the statutory prerequisites to filing a successive
§ 2255 motion are met as a “prima facie” matter. § 2244(b)(3)(C). Once we
have so determined, the district court reviews the requirements anew before
reaching the merits of the movant’s claims, § 2244(b)(4), and is free to depart
from our prima facie determination. Brown v. Lensing, 171 F.3d 1031, 1032 &
nn.8–9 (5th Cir. 1999). We have consequently described our review in this
posture as “tentative” and “not dispositive” of whether the statutory
requirements are met.     Id. at 1032 & n.8.      Our review is a fortiori not
dispositive of whether the invoked new rule should ultimately be extended in
the way that the movant proposes. Sparks, 657 F.3d at 262 n.3; Hubbard, 2016
WL 3181417, at *4. We ask only whether the movant relies on the new rule—
not whether his reliance is misplaced.
      Certainly a movant cannot invoke a new rule by reading it so expansively
as to contradict binding precedents. See In re Kunkle, 398 F.3d 683, 685 (5th
Cir. 2005).   The movant’s requested extension also cannot be so facially
implausible that he is not really “relying” on the new rule at all. See In re
White, 602 F. App’x 954, 957–58 (5th Cir. 2015) (holding that movant could not
invoke Eighth Amendment cases in support of a Sixth Amendment claim). But
where the movant seeks a non-frivolous extension of a new rule of


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constitutional law that the Supreme Court has made retroactive, our review
should be complete.
      Before the full court voted on the issue, various panels had resolved at
least sixteen requests to file successive § 2255 motions seeking to challenge
section 4B1.2(a)(2) in light of Johnson, granting six and denying ten. See In re
Pickett, No. 16-10577, slip op. at 6 & nn.4–5 (5th Cir. June 8, 2016) (Elrod, J.,
dissenting) (collecting cases). The extent of our internal disagreement alone
should satisfy us that Arnick has made “a sufficient showing of possible merit
to warrant a fuller exploration by the district court.” Reyes-Requena v. United
States, 243 F.3d 893, 899 (5th Cir. 2001) (quoting Bennett v. United States, 119
F.3d 468, 469 (7th Cir. 1997)). Because Arnick seeks a non-frivolous extension
of Johnson, I would let him make his case to the district court. I therefore
respectfully dissent.




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