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                                                                          [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 15-13089-C
                           ________________________

In re: GILBERTO RIVERO,

                                                                           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 TJOFLAT, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

      This application for leave to file a second or successive motion to vacate, set

aside, or correct a federal sentence requires us to decide whether the decision of the

Supreme Court in Johnson v. United States,        U.S.     , 

(2015),

established “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2). Gilberto Rivero

was sentenced as a career offender under what were mandatory United States

Sentencing Guidelines, and his judgment of conviction and sentence was upheld on

direct appeal and collateral review, 

Rivero now applies for leave to file

a second or successive motion under section 2255. Because we hold that Johnson
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did not establish a new rule of constitutional law made retroactive to cases on

collateral review by the Supreme Court, we deny Rivero’s application.

      Rivero filed an application seeking an order permitting the district court to

consider a second or successive motion to vacate, set aside, or correct his federal

sentence, 

2244(b)(3)(A). His application may be granted only if

this Court certifies that the second or successive motion involves one of the

following “two narrow circumstances,” Gilbert v. United States, 

,

1305 (11th Cir. 2011) (en banc):

      (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.

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.”

      A “new rule of constitutional law,” 

applies retroactively to

criminal cases that became final before the rule was announced only if that rule

falls within one of two narrow exceptions. See Teague v. Lane, 

, 308,

, 1074 (1989) (plurality opinion). The first exception requires the
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retroactive application of “[n]ew substantive rules.” Schriro v. Summerlin, 

, 351, 

, 2522 (2004) (emphasis omitted). And the second

exception requires the retroactive application of “a small set of watershed rules of

criminal procedure implicating the fundamental fairness and accuracy of the

criminal proceeding.” 

124 S. Ct. at 2523 (internal quotation marks and

citation omitted). The first exception limits the application of new substantive

constitutional rules on collateral review of criminal convictions to those rules that

“necessarily carry a significant risk that a defendant stands convicted of an act that

the law does not make criminal or faces a punishment that the law cannot impose

upon him,” 

124 S. Ct. at 2522–23 (internal quotation marks and citation

omitted); see also 

, 109 S. Ct. at 1075 (plurality opinion)

(internal quotation marks and citation omitted) (explaining that a new substantive

rule applies retroactively if it “places certain kinds of primary, private individual

conduct beyond the power of the criminal law-making authority to proscribe”), and

the second exception limits the application of new procedural constitutional rules

on collateral review of criminal convictions to those rules “without which the

likelihood of an accurate conviction is seriously diminished,” 

, 109 S. Ct. at 1077.

      Rivero seeks permission to raise one claim in a second or successive motion

under section 2255. Rivero asserts that he was sentenced as a career offender under

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mandatory Sentencing Guidelines because his prior conviction for attempted

burglary was a “crime of violence” under the residual clause of section 4B1.2(a)(2)

of the Sentencing Guidelines. U.S.S.G. § 4B1.2(a)(2) (Nov. 2003). Rivero argues

that we should grant him leave to file a second or successive motion to vacate, set

aside, or correct his sentence because Johnson created a new rule of constitutional

law that falls within the exception that permits the retroactive application of new

substantive rules. Although we agree that Johnson announced a new substantive

rule of constitutional law, we reject the notion that the Supreme Court has held that

the new rule should be applied retroactively on collateral review.

      “The new rule announced in [Johnson] is substantive rather than procedural

because it narrow[ed] the scope of [section] 924(e) by interpreting its terms,

specifically, the term violent felony.” Bryant v. Warden, FCC Coleman-Medium,

, 1278 (11th Cir. 2013) (internal quotation marks and citation

omitted) (second alteration in original). In Johnson, the Supreme Court held that

“imposing an increased sentence under the residual clause of the Armed Career

Criminal Act violates the Constitution's guarantee of due 

. That is, Johnson “narrowed the class of people who are eligible for” an

increased sentence under the Armed Career Criminal Act. 

(emphasis omitted).

      Even if we assume that the new substantive rule announced in Johnson also

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applies to the residual clause of section 4B1.2(a)(2) of the Sentencing Guidelines,

that rule must also be “made retroactive to cases on collateral review by the

Supreme Court,” 28 U.S.C. § 2255(h)(2), for Rivero to obtain our permission to

file a second or successive motion. Under section 2255(h)(2), “the Supreme Court

is the only entity that can ‘ma[k]e’ a new rule retroactive.” Tyler v. Cain, 

, 663, 

, 2482 (2001) (second alteration in original) (quoting 28

U.S.C. § 2255(h)(2)). “When the Supreme Court makes a rule retroactive for

collateral-review purposes, it does so unequivocally, in the form of a holding.” In

re Anderson, 

, 1339 (11th Cir. 2005). That is, “the Court does not

make a rule retroactive through dictum or through multiple holdings, unless those

holdings necessarily dictate retroactivity of the new rule.” 

marks and citation omitted); see also In re Henry, 

, 1160 (11th Cir.

2014) (internal quotation marks and citation omitted) (explaining that “the

Supreme Court could make a new rule retroactive to cases on collateral review

through multiple holdings that logically dictate the retroactivity of the new rule”).

      No combination of holdings of the Supreme Court “necessarily dictate” that

Johnson should be applied retroactively on collateral review. The Supreme Court

decided Johnson on direct 

, the decision did not

“express[ly] hold[]” that it applies retroactively, In re Moss, 

, 1303

(11th Cir. 2013), and “the Supreme Court has not since applied [Johnson] to a case

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on collateral review,” In re 

. Moreover, the rule

announced in Johnson does not meet the criteria the Supreme Court uses to

determine whether the retroactivity exception for new substantive rules applies.

Johnson held that the residual clause of the Armed Career Criminal Act does not

impose a punishment for a prior conviction for possession of a short-barreled

shotgun because that clause is unconstitutionally 

, but

Johnson did not hold that Congress could not impose a punishment for that same

prior conviction in a statute with less vague language. Indeed, the day after the

Supreme Court decided Johnson, Congress could have amended the residual clause

of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), to provide a greater

sentence for a defendant with a prior conviction for possession of a short-barreled

shotgun or, as here, a prior conviction for attempted burglary. Nothing in Johnson

suggests that “certain kinds of primary, private individual conduct [are] beyond the

power of [Congress] to proscribe,” 

, 109 S. Ct. at 1075

(plurality opinion) (internal quotation marks and citation omitted).

      There are two types of “new [substantive] rule[s] of constitutional law,” 28

U.S.C. § 2255(h)(2), that the Supreme Court has “necessarily dictate[d],” In re

(internal quotation marks and citation omitted), are to

be applied “retroactive[ly] on collateral review,” 28 U.S.C. § 2255(h)(2), and the

new rule announced in Johnson fits neither of those types. First, we apply

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retroactively on collateral review a new rule that prohibits the punishment of

certain primary conduct. Examples of this type of new rule include Lawrence v.

Texas, 

, 

(2003), in which the Supreme Court held that

the Fourteenth Amendment forbids states from making illegal private, homosexual

sodomy between consenting adults, 

123 S. Ct. at 2484, and Texas v.

Johnson, 

, 

(1989), in which the Supreme Court held

that the First Amendment forbids states from punishing an individual for burning

the American flag in protest, 

109 S. Ct. at 2545. Those rules operate

retroactively on collateral review because they “place particular conduct or persons

covered by [a] statute beyond the State’s power to punish.” Schriro, 542 U.S. at

. Second, we apply retroactively on collateral review a new

rule that prohibits a category of punishment for certain offenders or offenses.

Examples of this type of new rule include Atkins v. Virginia, 

, 

(2002), in which the Supreme Court held that the Eighth Amendment

forbids states from “tak[ing] the life of a mentally retarded offender,” 

122 S. Ct. at 2252 (internal quotation marks and citation omitted), and Kennedy v.

Louisiana, 

, 

(2008), in which the Supreme Court held

that the Eighth Amendment forbids states from executing a child rapist unless his

crime “t[ook] the life of the victim,” 

128 S. Ct. at 2665. Those rules

operate retroactively on collateral review because they prevent a defendant from

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“fac[ing] a punishment that the law cannot impose upon him.” 

, 124 S. Ct. at 2523; see also In re Holladay, 

, 1173 (11th Cir.

2003) (holding that “there is no question that the new constitutional rule . . .

articulated in Atkins is retroactively applicable to cases on collateral review”). The

new rule announced in Johnson neither prohibits Congress from punishing a

criminal who has a prior conviction for attempted burglary nor prohibits Congress

from increasing that criminal’s sentence because of his prior conviction.

      We acknowledge that one of our sister circuits has held that Johnson applies

retroactively to decisions on collateral review, but we are unpersuaded by that

decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015). In Price,

the Seventh Circuit explained that “[t]here is no escaping the logical conclusion

that the [Supreme] Court itself has made Johnson categorically retroactive to cases

on collateral review” because “[a] defendant who was sentenced under the residual

clause necessarily bears a significant risk of facing a punishment that the law

cannot impose upon him.” 

We disagree. We can “escap[e] th[at] logical

conclusion” because Congress could impose the punishment in Johnson if

Congress did so with specific, not vague, language.

      Our dissenting colleague assumes that the new rule announced in Johnson

also applies to the residual clause of the career offender enhancement in the

Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), but that assumption makes clear

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that precedents of the Supreme Court do not “necessarily dictate,” In re 

(internal quotation marks and citation omitted), that Rivero may

file his second or successive motion to vacate, set aside, or correct his sentence.

See Dissenting Op. at 15 n.2. The Supreme Court has never held that the

Sentencing Guidelines are subject to a vagueness challenge. And four of our sister

circuits have held that the Sentencing 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.” United States v. Tichenor, 

, 363–66, 365 n.3 (7th

Cir. 2012); see also United States v. Smith, 

, 1418 (6th Cir. 1996);

United States v. Pearson, 

, 223 (5th Cir. 1990); United States v.

Wivell, 

, 159–160 (8th Cir. 1990). But the absence of Supreme Court

precedent provides an alternative ground for why we must deny Rivero’s

application for leave to file a second or successive motion.

      Our dissenting colleague also misunderstands the precedents of the Supreme

Court on which she relies. In Schriro v. Summerlin, 

, 

,

the Supreme Court explained that new substantive rules “generally apply

retroactively” on collateral review, and it listed as examples of new substantive

rules “decisions that narrow the scope of a criminal statute by interpreting its

terms” and “constitutional determinations that place particular conduct or persons

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covered by the statute beyond the State’s power to punish,” 

124

S. Ct. at 2522. As an example of a “decision that narrow[s] the scope of a criminal

statute by interpreting its terms,” the Supreme Court cited Bousley v. United States,

, 

(1998), in which the Supreme Court explained that a

new substantive rule that narrowed the definition of the word “use” applied

retroactively on collateral review, 

, 124 S. Ct. at 2522; see

also Bousley, 

, 

(discussing the new substantive rule

announced in Bailey v. United States, 

, 139, 

, 503

(1995)). But that new rule was the product of statutory interpretation, see 

, 116 S. Ct. at 503 (interpreting 18 U.S.C. § 924(c)(1)), and it was

not a new rule of constitutional law. The discussion in Schriro acknowledged that

the type of new substantive rule at issue in Bousley is not a constitutional rule. See

542 U.S. at 

(drawing a distinction between new rules

that “narrow the scope of a criminal statute by interpreting its terms” and

“constitutional determinations that place particular conduct or persons covered by

the statute beyond the State's power to punish”) (emphasis added). If Rivero—like

the petitioner in Bousley—were seeking a first collateral review of his sentence, the

new substantive rule from Johnson would apply retroactively. But Rivero has

applied for leave to file a second or successive motion to vacate, set aside, or

correct a federal sentence, and we may permit that leave only if his second or

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successive motion involves “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2)

(emphasis added). Bousley did not involve a new rule of constitutional law, so its

holding cannot “necessarily dictate,” In re 

(internal

quotation marks and citation omitted), that we apply the new rule from Johnson

retroactively on collateral review.

      Our dissenting colleague asserts that the government “d[id] not contest

Johnson’s retroactivity,” Dissenting Op. at 14, in another appeal, Price v. United

States, No. 15-2427 (7th Cir. Aug. 4, 2015), but the government used tentative

language to explain its position. See Dissenting Op. at 14 n.1, 26–27. In Price, the

government explained in its brief that the applicant made a “plausible argument

that Johnson is a new . . . rule of constitutional law that the Supreme Court has,

through a combination of holdings, made . . . retroactive to cases on collateral

review,” Response to Application, Price v. United States, No. 15-2427, at 19 (July

14, 2015) (internal quotation marks and citation omitted). Although the

government did not contest that the new rule announced in Johnson applies

retroactively on collateral review, the government did not concede that the

applicant was entitled to relief. See 

(asserting that the applicant’s “claim

[has] possible merit”) (internal quotation marks omitted). Moreover, the argument

that the government asserted might “plausibl[y],” 

make the new rule from

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Johnson apply retroactively on collateral review is not the argument upon which

the Seventh Circuit relied in its decision in Price, No. 15-2427. The government,

like our dissenting colleague, relied upon Bousley, but the Seventh Circuit held that

the new rule in Johnson “prohibited a certain category of punishment for a class of

defendants because of their status,” Price, No. 15-2427, at *7. That is, even the

Seventh Circuit did not hold that Bousley “necessarily dictate[s],” In re 

(internal quotation marks and citation omitted), that the new rule

announced in Johnson applies retroactively on collateral review.

      Our dissenting colleague also asserts that, “[w]hen a person serving a term in

prison was sent there pursuant to an unconstitutional provision [of a statute], future

Congresses are not in a position to fix it[, b]ut we are.” Dissenting Op. at 32–33.

Our dissenting colleague has the law backwards. Congress enacted section

2255(h)(2) to prohibit us from granting leave to file a second or successive motion

to vacate, set aside, or correct a federal sentence unless “the Supreme Court” has

made “a new rule of constitutional law . . . retroactive to cases on collateral

review,” 28 U.S.C. § 2255(h)(2), and only Congress can amend that statute.

Congress is “in a position to fix it,” Dissenting Op. at 32, by permitting prisoners

like Rivero to benefit from the new rule announced in Johnson. But unless

Congress amends section 2255(h)(2), we cannot permit Rivero to file his second or

successive motion.

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      Rivero’s application for leave to file a second or successive motion to

vacate, set aside, or correct his sentence is DENIED.




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JILL PRYOR, J., dissenting:

       I dissent because I believe that in Johnson v. United States, 

(2015), the Supreme Court announced a new substantive rule of constitutional law

that the Court has made retroactive to cases on collateral review. In no uncertain

terms, the Supreme Court has said that “decisions that narrow the scope of a

criminal statute by interpreting its terms . . . . apply retroactively . . . .” Schriro v.

Summerlin, 

, 351-51. The majority concedes that Johnson is that very

type of narrowing decision. So does the government, which does not contest

Johnson’s retroactivity. 1

       I do not disagree with the foundation upon which the majority opinion builds

its analysis. To be permitted to file a second or successive motion to vacate, set

aside, or correct his sentence, Gilberto Rivero must make a prima facie showing

that his application to file the motion relies upon “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. § 2255(h)(2). In concluding that the residual

clause of the Armed Career Criminal Act (“ACCA”) was impermissibly vague

under the Due Process Clause, Johnson announced a new rule of constitutional

       1
         Although the United States has not been asked to weigh in here, in another case raising
the identical issue, when asked by the Seventh Circuit to respond to the application to file a
second or successive motion, the government stated, “the United States submits that the
application should be granted.” United States Response to Application, Price v. United States,
No. 15-2427, at 1 (July 14, 2015); see 

(“[F]or this Court to grant Price’s application, it
must find that Johnson is a (1) previously unavailable (2) new rule (3) of constitutional law that
(4) has been made retroactive by the Supreme Court to cases on collateral review.”).
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law. 2 Maj. Op. at 4; see 

(“We hold that imposing an

increased sentence under the residual clause of the Armed Career Criminal Act

violates the Constitution’s guarantee of due process.”); see also Chaidez v. United

States, 

, 1107 (2013) (“[A] case announces a new rule if the result

was not dictated by precedent existing at the time the defendant’s conviction

became final.” (internal quotation marks omitted)). And there is no doubt that the

rule announced in Johnson previously was unavailable to Mr. Rivero: he was

convicted and sentenced in 2004, and we affirmed his sentence on direct appeal in

2005. See United States v. Rivero, 141 F. App’x 800 (2005) (unpublished).

       The question, then, is whether Johnson’s new rule of constitutional law

applies retroactively to cases like Mr. Rivero’s on collateral review. For second or

successive petitions, a new rule is retroactive only if the Supreme Court itself has

made it so.        Tyler v. Cain, 

, 662 (2001) (citing 28 U.S.C.



       2
         I assume that the new rule of constitutional law announced in Johnson applies to the
residual clause of the career offender enhancement, section 4B1.2(a)(2) of the Sentencing
Guidelines. See United States v. Oliver, 

, 418 (11th Cir. 1994) (“Precisely the same
analytical framework applied by the courts in ascertaining the scope of a ‘crime of violence’
[under the career offender guideline] logically obtains with respect to the question of what kind
of conduct comprises a ‘violent felony’ [under the ACCA].”); see also U.S. Sentencing Comm’n,
News Release: U.S. Sentencing Commission Seeks Comment on Revisions to Definition of Crime
of Violence, at 1 (Aug. 7, 2015) (“[T]he statutory language the [Supreme] Court found
unconstitutionally vague [in Johnson], often referred to as the ‘residual clause,’ is identical to
language contained in the ‘career offender’ sentencing guideline . . . .”). This assumption is
bolstered by the United States Sentencing Commission’s proposed changes to the career offender
guideline “eliminat[ing] from the guideline definition of ‘crime of violence’ the residual clause.”

discussion of this issue as it relates to the majority’s alternative position, see infra at
17-19.
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§ 2244(b)(2)(A)). “‘[M]ade’ means ‘held’ and, thus, the requirement is satisfied

only if [the Supreme] Court has held that the new rule is retroactively applicable to

cases on collateral review.” 

O’Connor explained in her concurring

opinion in Tyler, a new rule of constitutional law can be made retroactive “not only

through an express pronouncement of retroactivity, but also ‘through multiple

holdings that logically dictate the retroactivity of the new rule.’” In re Holladay,

, 1172 (11th Cir. 2003) (quoting 

(O’Connor,

J., concurring)). Because the Court in Johnson (a direct review case) did not

expressly pronounce the new rule to be retroactive on collateral review, I agree

with the majority that the new rule is retroactive only if holdings of the Supreme

Court logically dictate its retroactivity. See Maj. Op. at 5.

      The Supreme Court has, on two occasions important to this case, examined

retroactivity of new rules of law. In Teague v. Lane, the Court decided that “new

constitutional rules of criminal procedure will not be applicable” to cases on

collateral review. 

, 310 (1989) (plurality opinion). But the Court

established exceptions to this general principle of non-retroactivity, including, as

relevant here, new rules that “place certain kinds of primary, private individual

conduct beyond the power of the criminal law-making authority to proscribe.” 

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at 307. 3 As the majority points out, under the Teague exception, rules that prohibit

the criminalization of certain primary conduct, as well as rules that prohibit a

category of punishment for certain persons or conduct — rules that are essentially

substantive in nature — are retroactive. See Maj. Op. at 7.

       Nine years later in Bousley v. United States, 

(1998), the

Supreme Court refused an invitation to apply Teague’s general rule of non-

retroactivity. Kenneth Bousley was convicted in 1990 of “using” a firearm in

violation of 18 U.S.C. § 924(c)(1). 

After the Eighth Circuit Court of

Appeals affirmed his conviction, Mr. Bousley sought collateral relief. 

While Mr. Bousley’s appeal from the district court’s denial of habeas relief was

pending, the Supreme Court held in Bailey v. United States that § 924(c)(1)’s “use”

prong required the government to establish “active employment of the firearm.”

, 144 (1995). Because Mr. Bousley asserted that he merely possessed

the firearm, he argued based on Bailey that his conduct was not a crime under

§ 924(c)(1) and that his guilty plea to that charge was therefore involuntary.

. The Eighth Circuit concluded that Mr. Bousley was

not entitled to collaterally attack his guilty plea based on Bailey, and, when the

government declined to argue in support of the Eighth Circuit’s decision, the

       3
          Teague also provided an exception to non-retroactivity for rules involving “procedures .
. . implicit in the concept of ordered liberty,” the so-called “watershed rules of criminal
procedure” exception. 

, 311. We need not concern ourselves with this
exception because neither Johnson nor the case before us presents any such rule.
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Supreme Court appointed amicus. 

      Amicus urged the Supreme Court to apply a Teague bar to Mr. Bousley’s

claim, but the Supreme Court declined to do so because “decisions of this Court

holding that a substantive federal criminal statute does not reach certain conduct,

like decisions placing conduct ‘beyond the power of the criminal law-making

authority to proscribe,’ [

,] necessarily carry a significant

risk that a defendant stands convicted of an act that the law does not make

criminal.” 

(other internal quotation marks omitted). “Accordingly, it

would be inconsistent with the doctrinal underpinnings of habeas review to

preclude petitioner from relying on our decision in Bailey in support of his claim

that his guilty plea was constitutionally invalid.” 

(emphasis added). Put

differently, Bailey necessarily was available to Mr. Bousley on collateral review.

Id.; see United States v. Peter, 

, 711 (11th Cir. 2002) (“Decisions of

the Supreme Court construing substantive federal criminal statutes must be given

retroactive effect.” (citing 

)).

      In Schriro v. Summerlin, 

(2004), the Supreme Court provided a

blueprint for the application of the types of retroactively applicable rules the Court

constructed in Teague and Bousley. There, the Court clearly stated that new

substantive rules of constitutional law apply retroactively, explaining:

      This includes decisions that narrow the scope of a criminal statute by
      interpreting its terms, see Bousley v. United States, 

, 620-
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      21 (1998), as well as constitutional determinations that place
      particular conduct or persons covered by the statute beyond the State’s
      power to punish, see . . . Teague v. Lane, 

, 311 (1989)
      (plurality opinion). Such rules apply retroactively because they
      “necessarily carry a significant risk that a defendant stands convicted
      of an act that the law does not make criminal” or faces a punishment
      that the law cannot impose upon him. 

.

(internal quotation marks and footnotes omitted). Summerlin makes

plain that the rules announced in Bousley and in Teague are related but distinct,

and that either type of rule is retroactively applicable.

      The majority and I agree that ‘‘‘[t]he new rule announced in [Johnson] is

substantive rather than procedural because it narrow[ed] the scope of [section]

924(e) by interpreting its terms, specifically, the term violent felony.’” Maj. Op. at

4 (quoting Bryant v. Warden, FCC Coleman-Medium, 

, 1278 (11th

Cir. 2013) (citing 

)). “Johnson ‘narrowed the class

of people who are eligible for’ an increased sentence under the Armed Career

Criminal Act.” 

(quoting 

(emphasis omitted)).

That is, the majority agrees that the rule announced in Johnson fits squarely into

the Bousley category of retroactive rules described by Summerlin. Our inquiry

should end there. Rules that “narrow the scope of a criminal statute by interpreting

its terms,” which are substantive in nature, apply retroactively, and Johnson

announced such a rule. 

. Thus, the rule announced




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in Johnson necessarily applies retroactively, and Mr. Rivero’s application should

be granted. 4

       Yet, despite its express acknowledgement that Johnson is precisely the type

of decision that the Supreme Court has said “generally appl[ies] retroactively,”

, the majority nevertheless concludes that the Supreme

Court has not made Johnson retroactive. I cannot agree.

       The majority says that the retroactive application of new substantive

constitutional rules on collateral review is “limit[ed] . . . to those rules that

‘necessarily carry a significant risk that a defendant stands convicted of an act that

the law does not make criminal or faces a punishment that the law cannot impose

upon him.’” Maj. Op. at 3 (quoting 

(internal quotation

marks and citation omitted)). But Summerlin did not describe a limitation; instead,

it explained that decisions that narrow the scope of a criminal statute by

interpreting its terms apply retroactively “because they necessarily carry” such a

(emphasis added) (internal quotation marks omitted). In

other words, the Court in Summerlin imposed no additional requirement for

retroactivity with this language — it simply illustrated the reason why certain

rules, including rules narrowing a criminal law’s scope, must be retroactively


       4
        I should be clear that granting the application would mean only that Mr. Rivero has
made a prima facie showing of a claim involving Johnson. Under § 2244, the district court must
determine whether Mr. Rivero is entitled to relief.
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applicable. See 

.

       Why does this distinction matter?                 Because the majority employs a

description it incorrectly characterizes as a “limit[ation]” to eliminate one of the

two categories of rules the Supreme Court described with that language. See Maj.

Op. at 3 (citing 

, for the proposition that “a new

substantive rule applies retroactively if it ‘places certain kinds of primary, private

individual conduct beyond the power of the criminal law-making authority to

proscribe’”).     By eliminating that category, the majority altogether sidesteps

Bousley (which according to Summerlin described a necessarily retroactive type of

rule related to but distinct from Teague’s exception). 5 In concluding that “[n]o

combination of holdings of the Supreme Court ‘necessarily dictate[s]’ that Johnson

should be applied retroactively on collateral review,” Maj. Op. at 5 (quoting In re

Anderson, 

, 1339 (11th Cir. 2005)), the majority writes:

       [T]he rule announced in Johnson does not meet the criteria the
       Supreme Court uses to determine whether the retroactivity exception
       for new substantive rules applies. Johnson held that the residual
       clause of the Armed Career Criminal Act does not impose a

       5
          I recognize that Bousley was a first-§ 2255 case, but that alone does not answer the
question of retroactivity here. Bousley’s holding, and not its procedural posture, does. Namely,
Bousley’s holding, combined with Johnson’s, “logically dictates” that the unconstitutionality of
the ACCA’s residual clause is retroactive in effect. 

(O’Connor, J.,
concurring); see 

(applying Justice O’Connor’s test). It would be
illogical to require one of the Supreme Court’s holdings logically dictating the retroactivity of a
rule to be a § 2244 case because the statute itself dictates that “[t]he grant or denial of an
authorization by a court of appeals to file a second or successive application shall not be
appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28
U.S.C. § 2244(b)(3)(E).
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       punishment for a prior conviction for possession of a short-barreled
       shotgun because that clause is unconstitutionally 

, but Johnson did not hold that Congress could not impose a
       punishment for that same prior conviction in a statute with less vague
       language. Indeed, the day after the Supreme Court decided Johnson,
       Congress could have amended the residual clause of the Armed
       Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), to provide a greater
       sentence for a defendant with a prior conviction for possession of a
       short-barreled shotgun or, as here, a prior conviction for attempted
       burglary. Nothing in Johnson suggests that “certain kinds of primary,
       private individual conduct [are] beyond the power of [Congress] to
       proscribe,” 

, 109 S. Ct. at 1075 (plurality
       opinion) (internal quotation marks and citation omitted).

Maj. Op. at 6.

       Here the majority again focuses only on Teague’s retroactivity exception,

overlooking Summerlin’s instruction that two different types of substantive

decisions apply retroactively: “[1] decisions that narrow the scope of a criminal

statute [as in Bousley], as well as [2] constitutional determinations that place

particular conduct or persons covered by the statute beyond the State’s power to

punish [as in Teague].” 

(emphasis added). 6 A rule

narrowing the scope of a criminal statute by interpreting its terms is one type.

       6
          The phrase “as well as” means “and,” but here it serves only to list types of substantive
rules disjunctively, each an independently sufficient condition for recognizing retroactive effect.
Cf. Pasquini v. U.S. Immigration & Naturalization Serv., 

, 538 (5th Cir. 1977)
(reasoning that the “wording of [a criminal statute] . . . [was] so broad as to require the
conclusion that violations of foreign as well as domestic marijuana laws [fell] within its ambit,”
without concluding that concurrent violations of domestic and foreign laws were required to
trigger the statutory provision at issue (emphasis added)). To read Summerlin as the majority
does would require “as well as” to modify the verbs in each phrase, but it does not. That is,
Summerlin does not say that only “decisions that narrow the scope of a statute . . . as well as . . .
place particular conduct . . . beyond the State’s power to punish” are 

.
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(citing Bousley). The Teague exception, a rule that

places conduct or persons covered by a statute beyond the State’s power to punish,

is a second type. 

      I do not doubt that new substantive rules may sometimes both narrow the

scope of a criminal statute and place certain conduct outside the State’s authority to

punish. I think the rule announced in Johnson is such a case, although the majority

disagrees. But Summerlin could not be clearer that a rule is retroactive if it falls

into one of the two related categories the Supreme Court described. So requiring a

new rule to check the boxes of both types of substantive, retroactive decisions —

when the two types are listed disjunctively — is directly contrary to Summerlin.

      The result I would reach in this case fits neatly within Justice O’Connor’s

example in Tyler. “[I]f we hold in Case One that a particular type of rule applies

retroactively to cases on collateral review and hold in Case Two that a given rule is

of a particular type, then it necessarily follows that the given rule applies

retroactively to cases on collateral review.” 

-69 (O’Connor,

J., concurring) (emphasis added). “In such circumstances, we can be said to have

‘made’ the given rule retroactive to cases on collateral review.” 

In

Case One, Bousley, the Supreme Court held that rules made in “situations in which

this Court decides the meaning of a criminal statute enacted by Congress” by

“holding that a substantive federal criminal statute does not reach certain conduct”

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raise no Teague retroactivity bar. 

. The Supreme Court

reiterated that holding in Summerlin, describing the type of Bousley decisions that

“apply retroactively” to include “decisions that narrow the scope of a criminal

statute by interpreting its terms . . . because [those decisions] ‘necessarily carry a

significant risk that a defendant’ . . . faces a punishment that the law cannot impose

upon him.” 

(quoting 

).

      Case Two, of course, is Johnson, in which the Supreme Court held that

“[i]ncreasing a defendant’s sentence under the [residual] clause [of the ACCA]

denies due process of 

. In so holding, the Supreme Court

“narrow[ed] the scope of a criminal statute by interpreting its terms.” 

(citing 

); see Maj. Op. at 4. Because

the action the Supreme Court took in Johnson is “coextensive with” Bousley’s

category of substantive, retroactive rules, the two cases, taken together, “logically

dictate” the conclusion that Johnson is retroactive. 

.

      Moreover, Johnson’s void-for-vagueness decision is precisely the kind of

rule that “‘necessarily carr[ies] a significant risk that a defendant’ . . . faces a

punishment that the law cannot impose upon him.” 

(quoting 

). Johnson found the ACCA’s residual clause to

be unconstitutionally vague because if a prior offense potentially falls within the

residual clause (as a crime that “otherwise involves conduct that presents a serious

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potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii)), then

courts must “picture the kind of conduct that the crime involves in the ordinary

case” and then “judge whether that abstraction presents a serious potential risk of

physical 

(internal quotation marks omitted). By

judging the crime not by what the defendant did but by what the crime ordinarily

entails, and then judging whether that hypothetical conduct presents a serious

potential risk of injury to another, there is a “significant risk” that what the

defendant actually did is not what the residual clause purported to punish — that is,

that the defendant “faces a punishment that the law cannot impose upon him.”

(citing Bousley). 7


       7
          The majority contends that, because Bousley did not involve a new rule of constitutional
law, “its holding cannot ‘necessarily dictate’ . . . that we apply the new rule from Johnson
retroactively on collateral review.” Maj. Op. at 10. In the majority’s view, both Case One and
Case Two must involve new rules of constitutional law. I do not read Tyler to require both
holdings to be constitutional in nature. Tyler sets forth “three prerequisites” to obtaining relief in
the context of a second or successive 

. “First, the rule on which the
claim relies must be a ‘new rule’ of constitutional law; second, the rule must have been ‘made
retroactive to cases on collateral review by the Supreme Court’; and third, the claim must have
been ‘previously unavailable.’” 

from Tyler tells us that whether the rule has been made retroactive is a wholly
distinct element from whether the claim relies on a new rule of constitutional law. This much is
evident from the fact that in Tyler only the second element was at issue. 

the first element is composed of two parts: “a ‘new rule’ of constitutional law.” 

The retroactivity element is concerned only with the “rule” aspect of the first element,
not with its constitutional nature. Consistent with this reading, Justice O’Connor says in her
concurrence that multiple holdings may logically dictate a result when the Supreme Court
“hold[s] in Case One that a particular type of rule applies retroactively to cases on collateral
review and hold[s] in Case Two that a given rule is of that particular type.” 

(O’Connor, J., concurring) (emphasis added). She does not say that Case One must hold that “a
particular type of constitutional rule” applies retroactively. That would conflate the elements of
a successive motion that the Tyler majority made clear were distinct.
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       This illustrates not only that Bousley and Johnson, taken together, “logically

dictate the retroactivity of the new rule,’” 

(O’Connor, J.,

concurring), but also that Johnson “prohibits a category of punishment for certain

offenders or offenses,” as the majority describes Teague. Maj. Op. at 7. As I said,

Bousley and Teague involve related concepts, and in this case the rule announced

in Johnson also prohibits courts from imposing a 15-year mandatory minimum

sentence under the ACCA’s residual clause for non-enumerated offenses. Thus, I

also believe that Teague and Johnson, taken together, necessarily dictate the

Johnson rule’s retroactivity. And I am not alone in this conclusion. Based on

Teague as described in Summerlin, the Seventh Circuit concluded that the Supreme

Court has made Johnson retroactively applicable to second or successive petitions.

See Price v. United States, No. 15-2427, 

, at *3 (7th Cir. Aug. 4,

2015) (concluding, borrowing from the language of Teague, that in declaring the

ACCA’s residual clause unconstitutionally vague, “the Supreme Court prohibited a

certain category of punishment for a class of defendants because of their status”

(internal quotation marks omitted)). Indeed, before the Seventh Circuit decided

Price, it asked the United States to opine whether a successive collateral attack



        For this reason, I do not think Tyler requires that both cases be constitutional to logically
dictate retroactivity. It is enough that Bousley deemed “a particular type of rule,” rules
narrowing the scope of criminal statutes, to “appl[y] retroactively to cases on collateral review”
and that Johnson announced a new rule of constitutional law by narrowing the scope of the
ACCA’s residual clause. 

.
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based on Johnson should be permitted, and the government conceded that it

should. 

see United States Response to Application, Price v. United

States, No. 15-2427, at 11-12 (July 14, 2015) (“Response to Application”).8

       The majority opinion says Johnson nonetheless does not apply retroactively

because Congress could amend the ACCA and reimpose heightened punishments

for the very crimes of which Mr. Rivero was convicted. Reliance upon what

Congress could do to salvage what the Supreme Court has declared

unconstitutional is without legal foundation and, what’s more, overlooks

Congress’s actions before, during, and after Bousley was decided.

       Bousley, which permitted a petitioner to collaterally attack his guilty plea

based on the Supreme Court’s decision limiting the scope of § 924(c)(1) to “active

employment of the firearm,” was decided in May 

(citing

). In November 1998, Congress amended § 924(c)(1) to

criminalize “possess[ion of] a firearm” “in furtherance of” a crime of violence or



       8
          The majority suggests that in Price the Seventh Circuit disagreed with the government’s
interpretation and with mine. To the extent there is any discrepancy, it is only a matter of
emphasis. The majority is correct that the government relied largely on Bousley in concluding
that Johnson likely applied retroactively to second or successive motions. But see Response to
Application at 14 (“[R]ules that go beyond regulating only the ‘manner’ of determining
culpability—and instead categorically change the range of outcomes—should be treated as
substantive rules.” (citing Teague)). The Seventh Circuit said, “We now conclude, consistently
with the government’s position, that Johnson announces a new substantive rule of constitutional
law that the Supreme Court has categorically made retroactive to final convictions.” Price, 

, at *1. The Seventh Circuit relied upon the same language from Summerlin,
quoting Bousley, that I do. 

The Court also observed that its conclusion was consistent
with Teague. 

15-13089       Date Filed: 08/12/2015        Page: 28 of 33


drug trafficking crime, which encompassed the conduct for which Mr. Bousley

originally was convicted. 112 Stat. 3469 (1998).

       The possibility of this subsequent amendment had no bearing whatsoever on

the Supreme Court’s decision about Mr. Bousley’s reliance on Bailey on collateral

review. And why would it? Bailey narrowed the scope of the statute under which

Mr. Bousley was convicted. That satisfied the Supreme Court that the rule must

apply retroactively.       

(“Accordingly, it would be

inconsistent with the doctrinal underpinnings of habeas review to preclude the

petitioner from relying on our decision in Bailey in support of his claim that his

guilty plea was constitutionally invalid.”); see also 

.

The Supreme Court was unconcerned with the hypothetical prospect that Congress

could amend § 924(c)(1) to criminalize Mr. Bousley’s conduct. 9 Of course it was

possible. Not only was it possible, but a bill known as the “Bailey Fix Act” was

already under debate in Congress when the Supreme Court decided Bousley. See

143 Cong. Rec. S633-06 (Jan. 22, 1997) (introduction of Senate bill 191 by

Senator Helms); H. Rep. 105-845 at 86-87 (noting that the Senate passed S. bill

191 on November 6, 1997, and that the House of Representatives passed its


       9
          Should Congress amend the ACCA’s residual clause to comport with the Constitution
and provide a greater prison sentence for a defendant with a prior conviction for possession of a
short-barreled shotgun, as in Johnson, or, as here, a prior conviction for attempted burglary,
those sentenced under the amended statute could not seek collateral review based on Johnson.
Just as in Bousley, however, the prospect of amendment has no effect upon cases that come
before us in the meantime.
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companion bill, H.R. 424, on February 24, 1998, both before oral argument in

Bousley); 144 Cong. Rec. S12670-02 (Oct. 16, 1998) (Senator DeWine “hail[ing]

the passage last night of the Bailey Fix Act, also known as the use or carry bill,

after two Congresses”). Nonetheless, the Supreme Court permitted Mr. Bousley to

proceed on collateral review under its decision in Bailey without ever mentioning

Congress’s efforts or ability to amend the statute. Why? Because that fact was

immaterial to the Court’s decision. It is immaterial here, too.

       I do not dispute that Congress could pass a constitutional residual clause for

the ACCA. 10 But Mr. Rivero wasn’t sentenced under such a regime. Nor was Mr.

Johnson. The regime under which both were sentenced was unconstitutional. The

question is not whether an alternative regime could be constitutional, but whether

both men’s actual sentences, the ones they are actually serving, are

unconstitutional. The majority neither cites any authority nor provides any logical

explanation why a future Congress’s hypothetical actions could affect retroactivity


       10
           I note, however, that doing so would be quite an endeavor. The Court in Johnson
acknowledged that statutes using terms like “substantial risk” and “unreasonable risk” are not by
their very natures unconstitutional, but such laws pass muster in part because they are not linked
“to a confusing list of examples” as was the ACCA’s residual clause. 

. “More importantly,” the Court criticized the combination of the categorical approach, the
use of which the Court reaffirmed, and the phrase “serious potential risk” as used in the residual
clause. 

inquiry,” the Court said, “offers significantly less predictability” than
one tied to actual conduct rather than to the abstract conditions the categorical approach requires.

Court’s blueprint creates a daunting task for Congress. Would Congress keep
the residual clause language but scrap some of the “confusing list of examples?” 

scrap the residual clause and swap it for a laundry list of enumerated offenses? Or would it write
into the law a requirement that the defendant’s actual conduct is what matters, forcing courts to
abandon the categorical approach? And would such a law even then pass constitutional muster?
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today.        That’s because there is none.          And the existence of Bousley despite

§ 924(c)(1)’s ultimate amendment tells us there cannot be.

         The majority alternatively contends that the absence of Supreme Court

precedent on the viability of void-for-vagueness challenges to the Sentencing

Guidelines means that we must deny Mr. Rivero’s application, citing in support the

decisions of four circuits concluding that the guidelines are not subject to such

challenges. See Maj. Op. at 9. But there is a circuit split on the issue. See United

States v. Reardon, 

, 614 (9th Cir. 2003) (“We allow challenges to the

sentencing guidelines on vagueness grounds.”); see also United States v. Jones,

, 318-20 (3d Cir. 1992) (examining and rejecting the argument that

the Sentencing Guidelines’ failure to distinguish between cocaine and cocaine base

“is arbitrary and irrational” and thus void for vagueness). 11 Indeed, our Court has

addressed on the merits such a void-for-vagueness challenge. See United States v.

Sanders, 536 F. App’x 879, 882 (11th Cir. 2013) (unpublished) (concluding that

the career offender enhancement’s residual clause necessarily was not

unconstitutionally vague because this Court previously had held that the ACCA’s

         11
           I do not quibble with the majority’s citation to the Sixth Circuit’s decision that the
guidelines are not subject to void-for-vagueness challenges, but I think it is worth noting that the
Sixth Circuit recently has applied Johnson’s vagueness rule to the career offender guideline in at
least two unpublished opinions in direct review cases. See, e.g., United States v. Darden, 605 F.
App’x 545, 546 (6th Cir. 2015) (“Darden deserves the same relief as Johnson: the vacating of his
sentence. Indeed, after Johnson, the Supreme Court vacated the sentences of offenders who
were sentenced under the Guidelines’ residual clause.” (citing cases the Supreme Court vacated
in light of Johnson)); United States v. Harbin, No. 14-3956, 

, at *1 (6th Cir.
July 20, 2015).
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residual clause was not void for vagueness (citing United States v. Gandy, 

(11th Cir. 2013)); see also United States v. Rutherford, 

,

906 (11th Cir. 1999) (rejecting on the merits a void-for-vagueness challenge to the

guidelines definition of “crack” cocaine).

      Further, the four circuit decisions the majority cites were decided before

United States v. Booker, 

(2005), or rely on pre-Booker authority.

They therefore fail to consider that the mandatory guidelines regime

unconstitutionally forced judges to interpret what were, in effect, an entirely new

set of criminal laws. See 

(“Because they are binding on judges, we have

consistently held that the Guidelines have the force and effect of laws.”). To the

extent that overly vague criminal statutes always create the risk of arbitrary

enforcement, see 

, overly vague Sentencing Guidelines

necessarily offended due process before Booker made the guidelines advisory. See

also 

(“[T]he fact that the Guidelines were promulgated by the Sentencing

Commission, rather than Congress, lacks constitutional significance.”). Mr.

Rivero’s career offender residual clause sentence was imposed before Booker.

Thus, because he was sentenced as a career offender under the pre-

Booker mandatory guidelines regime, application of the impermissibly vague

residual clause to him axiomatically offended due process.




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      In any event, I do not agree that a Supreme Court ruling on a void-for-

vagueness challenge to the guidelines is required for purposes of the Tyler analysis.

As I explained above, the majority and I simply disagree on the proper application

of the Tyler test. So, the absence of such a ruling is, in my mind, immaterial.

      Finally, I note that the majority’s alternative position on the cognizability of

a vagueness challenge to the career offender guideline has no effect on the

applicability of Johnson to collateral challenges by persons sentenced under the

ACCA’s residual clause. Accordingly, we should not decide the retroactivity of

the rule announced in Johnson for those persons to the extent the majority denies

Mr. Rivero’s application on its alternative ground.

      I believe Mr. Rivero has made a prima facie showing that his application

satisfies § 2255(h) and § 2244(b)(2)(A). We are under too tight a deadline to

decide more than that at this stage. Let us not forget that Mr. Rivero and other

persons sentenced under the residual clause and its sister clause in the Sentencing

Guidelines are serving lengthy sentences. “Invoking so shapeless a provision to

condemn someone to prison for 15 years to life [under the ACCA] does not

comport with the Constitution’s guarantee of due process.” 

. When a person serving a term in prison was sent there pursuant to an

unconstitutional provision, future Congresses are not in a position to fix it. But we




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are, and the Supreme Court, through multiple holdings, has told us that we should.

I respectfully dissent.




                                        33