871 F.3d 85

1st Cir.

2017

Iman HARDY, Petitioner, v. UNITED STATES of America, Respondent.

No. 16-1668

United States Court of Appeals, First Circuit.

September 13, 2017

85, 86

We have left much work for the district court. That is by necessity, as the district court is required to redo the very analysis performed in this opinion before entertaining a successive § 2255 motion. See 28 U.S.C. § 2244(b)(4). The district court may also have to grapple with an issue that neither party raised before us: what to do when the transcripts of the sentencing hearing do not reveal whether the defendant‘s past convictions were deemed crimes of violence under the force clause or under the residual clause. Several courts have recently concluded that defendants in such cases are entitled to resentencing as long as the enhancement may have been due to the residual clause. See, e.g., United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017); cf. In re Chance, 831 F.3d 1335, 1340 (11th Cir. 2016) (arguing that dicta in an earlier Eleventh Circuit case was “wrong” where it suggested that a movant arguing that Johnson II invalidates the residual clause of 18 U.S.C. § 924(c) must “prove whether or not [he] was sentenced under the residual clause” (citation omitted)). We leave it to the district court to grapple with this issue in the first instance.

III.

For the foregoing reasons, we certify that Moore‘s successive motion satisfies 28 U.S.C. § 2255(h)(2).

Sharon Fray-Witzer, Boston, MA, for petitioner.

Michael A. Rotker, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Kenneth A. Blanco, Acting Assistant Attorney General, Criminal Division, U.S. Department of Justice, Trevor N. McFadden, Deputy Assistant Attorney General, Criminal Divi-sion, U.S. Department of Justice, William D. Weinreb, Acting U.S. Attorney, and Dina M. Chaitowitz, Assistant U.S. Attorney, Chief, Appellate Division, were on brief, for respondent.

Before THOMPSON, KAYATTA, and BARRON, Circuit Judges.

KAYATTA, Circuit Judge.

For the reasons stated in today‘s opinion in Moore v. United States, No. 16-1612, 871 F.3d 72, 2017 WL 4021654 (1st Cir. Sept. 13, 2017), we certify Iman Hardy‘s successive § 2255 motion insofar as it argues that Johnson II invalidates the residual clause of the pre-Booker career offender guideline. See 28 U.S.C. § 2255(h)(2) (setting out the certification requirements for successive motions).

Hardy also argues that Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), establishes that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a substantive decision with retroactive effect. We cannot certify this portion of Hardy‘s motion. This court has already held that Booker was not a substantive decision and therefore did not have retroactive effect. See Cirilo-Muñoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005); see also Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir. 2003) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that a jury rather than a judge must find facts that raise a statutory maximum, was not a substantive decision). Welch has not cast doubt on that holding. Instead, Welch reaffirmed that a decision that “allocate[s] decisionmaking authority between judge and jury” is procedural. Welch, 136 S.Ct. at 1265 (quoting Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)). Booker, which held that the mandatory guidelines were unconstitutional insofar as they allowed a judge, rather than a jury, to find facts that increased a defendant‘s maximum mandatory guidelines sentence, 543 U.S. at 244 (opinion of Stevens, J.), was precisely a decision of this sort.

Accordingly, we certify Iman Hardy‘s successive § 2255 motion insofar as it argues that Johnson II invalidates the residual clause of the pre-Booker career offender guideline. We do not certify it insofar as it argues that Booker is a substantive decision with retroactive effect under Welch.