           Case: 17-13913   Date Filed: 06/05/2018   Page: 1 of 4


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13913
                         Non-Argument Calendar
                       ________________________

       D.C. Docket Nos. 9:16-cv-81110-DTKH, 9:05-cr-80193-DTKH-1



ROBERTO DELGADO,

                                                          Petitioner-Appellant,


                                  versus


UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                       ________________________

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

                              (June 5, 2018)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Roberto Delgado, a federal prisoner represented by counsel, appeals the

district court’s dismissal of his second 28 U.S.C. § 2255 motion to vacate, set

aside, or correct sentence for lack of jurisdiction. On appeal, Delgado argues that

his sentence, which was enhanced under the career offender guideline in U.S.S.G.

§ 4B1.1, was unlawful following the Supreme Court’s decision in Johnson v.

United States, 135 S. Ct. 2551 (2015).

      We review de novo the district court’s dismissal of a § 2255 motion as

second or successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir.

2002). A federal prisoner who wishes to file a second or successive motion to

vacate, set aside, or correct sentence is required to move the court of appeals for an

order authorizing the district court to consider such a motion. See 28 U.S.C.

§ 2255(h). Without such authorization, the district court lacks jurisdiction to

consider a second or successive § 2255 motion to vacate. United States v. Holt,

417 F.3d 1172, 1175 (11th Cir. 2005).

      Under the 2005 version of the Sentencing Guidelines, a defendant was a

career offender subject to an enhanced sentence where the instant offense was a

felony that was either a crime of violence or a controlled substance offense and the

defendant 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 Sentencing Guidelines




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defined “crime of violence” as any offense under federal or state law, punishable

by 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a
       forcible sex offense, robbery, arson, extortion, involves use of
       explosives, or otherwise involves conduct that presents a serious
       potential risk of physical injury to another.

Id. § 4B1.2(a) (emphasis added). The first clause was referred to as the “elements”

clause, the beginning of the second clause as the “enumerated crimes” clause, and

the latter portion as the “residual” clause. Although Johnson involved an Armed

Career Criminal Act (“ACCA”) challenge, not a guideline career offender dispute,

the Sentencing Commission amended this guideline effective August 2016 to strike

the “residual clause.” Id. § 4B1.2(a)(2), Amendment 798.

      On June 26, 2015, the Supreme Court held in Johnson that the “residual”

clause of the ACCA was unconstitutionally vague. Johnson, 135 S. Ct. at 2563.

Later, the Supreme Court held that Johnson was retroactively applicable to cases

on collateral review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

Further, the Supreme Court held in Beckles v. United States, 137 S. Ct. 886 (2017)

that the advisory Sentencing Guidelines were not subject to a vagueness challenge

under the Due Process Clause, and that the “residual” clause formerly in the career

offender guideline, U.S.S.G. § 4B1.2(a), was not void for vagueness. Id. at 895.


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      Here, Delgado’s sentence was enhanced under the career offender guideline,

not under the ACCA. Moreover, he did not raise any of his claims in an authorized

second or successive § 2255 motion, and thus, the district court properly dismissed

his second § 2255 motion for lack of jurisdiction. McIver, 307 F.3d at 1329. As

this was Delgado’s second § 2255 motion, he was required to receive our

authorization to file it. See 28 U.S.C. § 2255(h). However, we denied his

application to file the successive § 2255 motion in 2016. As such, under §

2255(h), the district court lacked jurisdiction to review the present motion.

      Moreover, to the extent that Delgado argues that his total sentence is

unlawful after Johnson because the “residual” clause in the former version of

U.S.S.G. § 4B1.2(a)—which was identical to the ACCA’s residual clause—is void

for vagueness, his argument is without merit. As the Supreme Court found in

Beckles, the advisory Guidelines are not subject to void-for-vagueness challenges,

and the holding in Johnson did not extend to the “residual” clause formerly in

U.S.S.G. § 4B1.2(a). Beckles, 137 S. Ct. at 895. Accordingly, as Delgado did not

have authorization to file his second § 2255 motion, the district court properly

dismissed it for lack of jurisdiction, and we affirm.

      AFFIRMED.




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