913 F.3d 1270
10th Cir.2019Background
- In 1999 Pullen was convicted of possession with intent to distribute marijuana and, at sentencing under the then-mandatory Sentencing Guidelines, was designated a career offender under USSG §4B1.1, producing a Guidelines range of 262–327 months (sentence 262 months). Without the career-offender designation his range would have been 92–115 months.
- The career-offender designation rested in part on a prior Missouri escape conviction that the government conceded only qualified as a "crime of violence" under the Guidelines’ residual clause in USSG §4B1.2(a)(2).
- After Johnson v. United States (2015) invalidated the ACCA residual clause as unconstitutionally vague, Pullen sought authorization to file a second or successive 28 U.S.C. §2255 motion arguing Johnson announced a new, retroactive rule applicable to the mandatory Guidelines.
- This court granted prima facie authorization; on remand the district court dismissed Pullen’s §2255 as not satisfying §2255(h)(2) because the Supreme Court has not recognized vagueness challenges to the Guidelines, and therefore Johnson did not announce a new rule applicable to mandatory Guidelines. The district court granted a COA.
- On appeal the Tenth Circuit (panel) affirmed: under controlling precedent a circuit’s authorization is preliminary and the district court must decide whether the motion actually satisfies §2255(h)(2); and because the Supreme Court has not applied Johnson’s vagueness rule to mandatory Guidelines (Beckles left that question open), Pullen cannot show a new, retroactive rule applies to his mandatory-Guidelines sentence.
Issues
| Issue | Pullen's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the district court could dismiss a §2255 authorized by the court of appeals based on §2255(h)(2) | Once circuit court authorizes filing, district court cannot dismiss under §2255(h)(2) | Authorization is preliminary; district court must still determine if §2255(h)(2) requirements are actually met | Denied: district court has secondary gatekeeping role; Murphy controls (authorization is preliminary) |
| Whether Johnson announced a new rule of constitutional law applicable to mandatory Sentencing Guidelines | Johnson (and Dimaya) establish a rule forbidding sentencing based on an ordinary-case categorical, risk‑assessment residual clause; thus applies to mandatory Guidelines | Beckles and Supreme Court precedent show Johnson did not extend to Guidelines; applicability to mandatory Guidelines remains open | Denied: Johnson did not create a new, retroactive rule applicable to mandatory Guidelines |
| Whether a void-for-vagueness challenge is cognizable against mandatory Guidelines | Pullen: due process forbids sentencing under a vague mandatory Guidelines residual clause | Gov: Supreme Court has not recognized vagueness challenges to Guidelines; statutory ranges supply notice; Beckles distinguishes advisory Guidelines | Denied: question remains open and not dictated by Supreme Court precedent; Pullen cannot satisfy §2255(h)(2) |
| Whether Circuit split / denials of certiorari change analysis | Pullen: Dimaya and some circuits support broader rule; denials of certiorari leave issue unresolved | Gov: denials and Beckles favor conclusion that no Supreme Court‑recognized retroactive rule exists for mandatory Guidelines | Held: Denials of certiorari and Beckles indicate issue is unresolved; majority of circuits deny relief; Tenth affirms dismissal |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as void for vagueness)
- Welch v. United States, 136 S. Ct. 1257 (2016) (holding Johnson announced a new rule retroactive on collateral review)
- Beckles v. United States, 137 S. Ct. 886 (2017) (holding advisory Sentencing Guidelines are not subject to vagueness challenge)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (applying Johnson reasoning to strike down a similarly worded residual clause in §16(b))
- United States v. Booker, 543 U.S. 220 (2005) (rendering the Guidelines advisory rather than mandatory)
- United States v. Murphy, 887 F.3d 1064 (10th Cir.) (authorization under §2244(b)(3) is preliminary; district court must still assess §2255(h)(2) requirements)