IN RE: Charles CLAYTON, Petitioner.
No. 16-14556-J
United States Court of Appeals, Eleventh Circuit.
Date Filed: 07/18/2016
829 F.3d 1254
Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney‘s Office, Miami, FL, for Successive Habeas Respondent.
Before: MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
ORDER:
Charles Clayton seeks permission to file a
APPLICATION DENIED.
MARTIN, Circuit Judge, with whom JILL PRYOR, Circuit Judge, joins, concurring in result:
Six years ago Charles Clayton was sentenced to 30 years in prison for possessing a kilogram of cocaine with intent to distribute. The criminal law he violated required a sentence of at least 10 years. But beyond the statute, Mr. Clayton faced the
Since Johnson was decided, prisoners sentenced based on these words in the Sentencing Guidelines have come into federal courts seeking the same relief Johnson has given to prisoners sentenced based on the same words in the statute. Every other court of appeals has either held or assumed that Johnson makes the language in
While I‘m at it, Mr. Clayton‘s case also gives an opportunity to describe other ways our court has limited the reach of Johnson for people who may be serving unlawful sentences imposed in the federal courts of Alabama, Florida, and Georgia. Generally a person who finds himself serving an illegal sentence can seek relief by filing what is known as a
In deciding these applications, we have been doing far more than what the statute directs. The judges of this court, myself included, have been combing through* sealed records from the prisoner‘s original sentence hearing and going ahead to make a decision about whether the prisoner will win if we let him file his
I first address this court‘s Matchett ruling, which has had the effect of locking prisoners into harsh sentences that I understand every other circuit to be reexamining. Matchett affects a lot of people. In fiscal year 2014 alone, 2,269 people in this country were sentenced using
The guidelines define the term “crime of violence” from
A.
In explaining why the Supreme Court‘s holding in Johnson doesn‘t apply to the guidelines, the Matchett panel looked to the Seventh Circuit‘s ruling in United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012). Quoting Tichenor, the panel said: “Since the Guidelines are merely advisory, defendants cannot rely on them to communicate the sentence that the district court will impose. Defendants’ inability to look to the Guidelines for notice underscores why ... they cannot bring vagueness challenges against the Guidelines.” 802 F.3d at 1194 (quoting Tichenor, 683 F.3d at 365). But this view of the guidelines is at odds with how the Supreme Court views them, and in any event, it is perilous to now deduce this principle from Tichenor. A year after Tichenor was decided, the Supreme Court applied the Ex Post Facto Clause to the Sentencing Guidelines. See Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). Like the vagueness doctrine, the Ex Post Facto Clause imposes a constitutional requirement of “fair notice.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981).
The guidelines have this “anchor” effect even when judges depart from them. “Even if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.” Peugh, 133 S.Ct. at 2083 (quotation omitted). “In less than one-fifth of cases since 2007 have district courts imposed above- or below-Guidelines sentences absent a Government motion. Moreover, the Sentencing Commission‘s data indicate that when a Guidelines range moves up or down, offenders’ sentences move with it.” Id. at 2084 (citations omitted). Indeed a vague guideline can wreak harm on a defendant even before he is convicted of any crime. Id. at 2085 (plurality opinion) (“[A] defendant charged with an increased punishment for his crime is likely to feel en-
Peugh outright rejected the idea the Matchett panel relied on—that the guidelines need not give notice because they are “purely advisory.” Id. at 2087 (majority opinion). The Court wrote: “[i]t is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.” Id. at 2085. Rather, the guidelines are “the Federal Government‘s authoritative view of the appropriate sentences for specific crimes.” Id. (plurality opinion). And they announce “the most recent views of the agency charged by Congress with developing sentencing policy.” Id. at 2087 (majority opinion). For these reasons the guidelines must “give fair warning of their effect and permit individuals to rely on their meaning.” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quotation omitted) (applying the Ex Post Facto Clause to Florida‘s advisory sentencing guidelines); see also Peugh, 133 S.Ct. at 2085 (plurality opinion) (“The [Ex Post Facto] Clause ensures that individuals have fair warning of applicable laws.“).
Like the Ex Post Facto Clause, the vagueness doctrine must also apply to the Sentencing Guidelines. Just as the Ex Post Facto Clause ensures “fair warning,” the vagueness doctrine says no law can be “so vague that it fails to give ordinary people fair notice of the conduct it punishes.” Johnson, 135 S.Ct. at 2556. The Matchett panel said Johnson does not apply because “advisory guidelines that inform a sentencing judge‘s discretion [] cannot violate the notice requirement.” 802 F.3d at 1195. Peugh tells us the opposite. Even if Peugh doesn‘t set out exactly when the vagueness doctrine applies, it shows that the panel‘s “notice is irrelevant” argument is not enough to shield the guidelines from constitutional scrutiny. And “notice is irrelevant” is the best defense the panel gave for its ruling.
The panel‘s idea that notice is irrelevant for the Sentencing Guidelines seems to be based on its misreading of Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). Irizarry held that
The Matchett opinion ignores these lessons from Peugh and Molina-Martinez. Worse, the Matchett panel relied on precedent those cases abrogated. For example, the panel purported to “join” the Sixth
B.
The Matchett panel got the Sentencing Guidelines wrong in this way. It got the vagueness doctrine wrong as well. It said “[t]he vagueness doctrine applies only to laws that prohibit conduct and fix punishments.” 802 F.3d at 1189. I say federal policy that causes certain conduct to be punished by more years in jail “prohibit[s] conduct and fix[es] punishments.” But even if I am wrong on this, we know that the Supreme Court has long applied the vagueness doctrine to all kinds of things that don‘t “prohibit conduct and fix punishments.” For example, a half century ago Giaccio v. State of Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), held unconstitutionally vague a statute that allowed juries to make acquitted defendants pay court costs “without any legally fixed standards.” Id. at 403, 86 S.Ct. at 521. The Supreme Court distinguished the statute, which after all applied only to those acquitted, from laws that “impose[] forfeitures, punishments or judgments for costs.” Id. at 404, 86 S.Ct. at 522. This Pennsylvania statute neither prohibited conduct nor fixed punishment, but it was nonetheless unconstitutionally vague.
The panel‘s reasoning also defies Johnson itself. Johnson reminded us of two ways in which vague laws can violate the Fifth Amendment‘s guarantee of due process of law: “Our cases establish that the Government violates this guarantee by taking away someone‘s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” 135 S.Ct. at 2556. The Supreme Court then held that the 13 words of ACCA‘s “residual clause” were unlawful in both these ways: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Id. at 2557.
The Matchett panel gave no heed to these admonitions against “arbitrary enforcement.” Zero. Instead, the panel addressed only Johnson‘s “notice” rationale, without ever mentioning the Court‘s concern about “arbitrary enforcement by judges.” This matters because we have been instructed that the “arbitrary enforcement” concern is “the more important aspect of vagueness doctrine.” Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Perhaps reflecting this lesson, every time Johnson told us why the residual clause is not lawful, it underscored the problem that the
If the panel had been willing to evaluate how the residual clause in the Sentencing Guidelines leads to “arbitrary enforcement by judges,” then the case would have easily resolved in Mr. Matchett‘s favor. The Supreme Court has told us that overly vague laws violate our Constitution because they “delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972). Or as Johnson put it, “the indeterminacy of the wide-ranging inquiry required by the residual clause” makes the clause unconstitutional because it “invites arbitrary enforcement by judges.” 135 S.Ct. at 2557.
The risks of “discriminatory application” and “arbitrary enforcement” here should be obvious. Two judges who are sentencing defendants with identical records can arrive at different sentences based on each judge‘s personal sense of what seems like a crime of violence. Judges will certainly try to apply pre-Johnson residual clause opinions correctly when sentencing a person under
C.
Also worrisome, the Matchett panel opinion forces this court and all courts sentencing human beings within the Eleventh Circuit to continue to apply and even add to the body of law that Johnson discredited. The panel recognizes that Johnson “abrogated the previous decisions of the Supreme Court interpreting the residual clause.” 802 F.3d at 1195. But the panel nevertheless instructs courts that they “must still adhere to the reasoning of [these] cases” when interpreting
II.
The Matchett opinion is only one of many ways the Eleventh Circuit has uniquely “limited Johnson‘s reach.” McCall, 826 F.3d at 1311, 2016 WL 3382006, at *2 (Martin, J., concurring). Today marks three months since the Supreme Court‘s April 18 decision in Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). In those three months, the Eleventh Circuit has ruled on over 1,159 applications for permission to file a successive
First, “[w]e were in the minority of courts that, from the beginning, said prisoners could not benefit from Johnson if they had already filed an earlier
Third, “I am aware of no order from another court of appeals that combs through an applicant‘s presentence investigation report to decide the merits of his yet-unfiled motion without ever hearing from a lawyer.” McCall, 826 F.3d at 1312 n. 7, 2016 WL 3382006, at *3 n.7 (Martin, J., concurring). A court of appeals is simply not equipped to construct a new basis for a prisoner‘s old sentence in this way. At the district court sentence hearing, unlike the pure paper review we are doing here, defense lawyers can point out factual errors in the PSI and otherwise educate the court about why the recommendations in the PSI might not be appropriate. None of that protection exists when prisoners apply to our court for permission to go to the district court to have their sentences reexamined.13 Also, when deciding these cases, our court has over and over again failed to apply the Supreme Court‘s current interpretation of ACCA.14 This appears to set us apart from our peers too.
Fourth, as far as I know, ours is the only court to force a decision on every one of these cases within 30 days of filing. We do this based on
Fifth, another panel of this court recently held that “the federal habeas statute requires us to dismiss a claim that has been presented in a prior application” to file a
On the topic of this court‘s singular approach, I add one more observation. Last month the Supreme Court granted certiorari in the case of a Texas prisoner named Duane Buck. See Buck v. Stephens, No. 15-8049, — U.S. —, 136 S.Ct. 2409, 195 L.Ed.2d 779, 2016 WL 531661 (U.S. June 6, 2016). The Court took the case even though the lower court ruled that Mr. Buck‘s appeal was so meritless that he couldn‘t even file it. Mr. Buck‘s petition for certiorari asked: “did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard?” Our treatment of applications for successive
ROSENBAUM, Circuit Judge, with whom JILL PRYOR, Circuit Judge, joins, concurring:
Imagine a sentencing guideline that read, “A defendant is a career offender if ‘[p]uddles do not ask for why not? It is cheese! Breath and wind. It is cheese.‘” Boston Legal, “Word Salad Days” (2006), http://www.imdb.com/title/tt0770843/quotes (last visited Apr. 28, 2016). Now imagine that based on the Guidelines range that that indecipherable language required, a district court sentenced a defendant to twice as much time as it otherwise would have. How could the sentencing court know that the guideline applied? How could the reviewing court know that the correct Guidelines calculation included an enhancement under that guideline? Surely doubling a defendant‘s sentence based on nonsense would violate due process. But in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), we allowed defendants to continue to be sentenced to much more severe sentences than they would otherwise receive, based on the residual clause of the career-offender guideline, a guideline that the Supreme Court has found hardly more scrutable than the hypothetical one above.
No doubt criminal defendants do not have a due-process right to a sentence within a particular Sentencing Guidelines range. But Congress can, and essentially has, required courts to begin the sentencing process by correctly calculating the Guidelines range. The question here is whether, when the Supreme Court strikes language from a statute because it is unconstitutionally vague language and that same language also appears in a guideline, we are constitutionally able to continue to apply that language in the sentencing process that Congress has mandated. The answer, unlike the challenged part of the career-offender guideline, is clear: we are not.
I concur in all but Section I.A of Judge Martin‘s well-reasoned concurrence. I agree that the Supreme Court‘s decision in Johnson v. United States, 576 U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), holding the Armed Career Criminal Act‘s (“ACCA“) residual clause unconstitutional-
I.
In Matchett, 802 F.3d 1185, the panel reached the opposite conclusion because it held that the vagueness doctrine does not apply to the Sentencing Guidelines. 802 F.3d at 1193-95. To reach that result, the panel first described the vagueness doctrine as “rest[ing] on [a] lack of notice.” Id. at 1194 (quoting Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988)). Then, the panel construed Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), as precluding due-process challenges to, essentially, anything having to do with sentencing under the Guidelines, based on the Supreme Court‘s remark that that “[a]ny expectation subject to due process protection ... that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which invalidated the mandatory features of the Guidelines.” Matchett, 802 F.3d at 1194 (quoting Irizarry, 553 U.S. at 713, 128 S.Ct. at 2202). Finally, the panel quoted the Eighth Circuit‘s decision in United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), for the proposition that “[b]ecause there is no constitutional right to sentencing guidelines ... the limitations the Guidelines place on a judge‘s discretion cannot violate a defendant‘s right to due process by reason of being vague.” Matchett, 802 F.3d at 1194-95 (quoting Wivell, 893 F.2d at 160).
A.
The problem with the first part of the panel‘s analysis—that the vagueness doctrine “rest[s] on [a] lack of notice“—is that it is incomplete. The vagueness doctrine also protects against arbitrary enforcement by judges. Indeed, in Johnson itself the Supreme Court held that the ACCA equivalent of the 13 words at issue here violated due process because it “both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557 (emphasis added).
B.
As for the second part of the panel‘s analysis—that Irizarry precludes due-process challenges to all forms of sentencing error under the Guidelines—I respectfully disagree. In Irizarry, under the advisory Guidelines, a defendant was sentenced above the correctly calculated Guidelines range. 553 U.S. at 712, 128 S.Ct. at 2201. He asserted that his due-process rights had been violated because the sentencing court varied upwards from the Guidelines range without providing him with prior notice. See
Put simply, Irizarry stands for only the proposition that a defendant has no due-process interest in receiving a sentence within the Guidelines range. But Irizarry says nothing about whether a defendant has a due-process right to a correct and fair sentencing process under the Sentencing Guidelines. And while the Supreme Court has not expressly spoken to such a right, the Court‘s recent decisions strongly indicate that the right exists.
For starters, in Molina-Martinez v. United States, 578 U.S. —, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016), the Supreme Court recently explained that a district
And that is not surprising, given that the Supreme Court has established that a correct and fair sentencing process necessarily begins with the correct calculation of the Guidelines range. Gall v. United States, 552 U.S. 38, 50 & n. 6, 128 S.Ct. 586, 596 n. 6, 169 L.Ed.2d 445 (2007). Indeed, the Supreme Court has instructed that under
In other words, the Supreme Court has acknowledged that Congress has effectively legislated the requirement that a sentencing court start the sentencing process by first correctly calculating the Guidelines range. That makes
That is exactly the problem that the challenged language of the career-offender guideline presents. How can a sentencing court correctly calculate the Guidelines range when it is forced to apply the “hopeless[ly] indetermina[te]” language of the career-offender guideline? Johnson, 135 S.Ct. at 2448. Courts had “trouble making sense” of the very same words when they tried to apply them under the ACCA‘s residual clause. Id. at 2559-60. The Supreme Court observed that “[n]ine years’ experience trying to derive meaning from the residual clause convince[d it] that [it] ha[d] embarked upon a failed enterprise.” Id. at 2560. This “black hole of confusion and uncertainty’ that frustrates any effort to impart ‘some sense of order and direction,‘” id. at 2562 (quoting United States v. Vann, 660 F.3d 771, 787 (4th Cir. 2011) (Agee, J., concurring)), does not somehow magically become clearer or more meaningful because the words appear in the guideline, rather than in the ACCA.
Because of this muddle, a sentencing court cannot ascertain whether the challenged part of the career-offender guideline even applies when the guideline is raised, so the court necessarily cannot correctly calculate the Sentencing Guidelines range. As a result, the sentencing court
And the confusion only grows on appeal. Determining whether a sentence imposed by a district court was procedurally reasonable requires appellate courts to first ascertain whether the district court correctly calculated the applicable Guideline range. But we are no more skilled in applying “hopeless[ly] indetermina[te]” language than district courts.
C.
Finally, with regard to the third part of the Matchett panel‘s analysis—that the Sentencing Guidelines cannot be challenged as vague because no constitutional right to sentencing guidelines exists—I again respectfully disagree. True, “legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases.” Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). But legislatures cannot, as Matchett would apparently hold, cabin the sentencing discretion of judges by mandating that they calculate a defendant‘s sentence using unconstitutionally vague language.
This would be another case entirely if sentencing judges could choose to wholly disregard the unconstitutionally vague career-offender guideline in calculating sentences. They cannot. Instead, district courts must begin the sentencing process by correctly calculating a defendant‘s Guidelines range. Peugh, 133 S.Ct. at 2083. Under Matchett, that means that Congress has essentially required district courts to apply unconstitutionally vague language in sentencing defendants. But it could not do that. Due process may not require sentencing guidelines, but it does prohibit Congress from requiring judges to apply unconstitutionally vague language in correctly calculating a defendant‘s sentence under any guidelines it chooses to enact.
II.
At bottom, statutorily, courts are required to begin every sentencing by correctly calculating the Guidelines range. Yet the Supreme Court has recognized that courts cannot reliably know whether the challenged language of the career-offender Guideline applies in any given case. As a result, they cannot possibly know whether a correct calculation of the Guidelines range should or should not include such an enhancement. But in Matchett, we nonetheless required sentencing courts to impose the enhancement and ourselves to uphold it, anyway. Trying to divine meaning from the word salad that is the challenged portion of the career-offender guideline guarantees an arbitrary and unfair sentencing process in violation of due process. For these reasons, I respectfully disagree with our holding in Matchett.
JILL PRYOR, Circuit Judge, with whom ROSENBAUM, Circuit Judge, joins, concurring in result:
The Supreme Court has told us that it violates the Constitution‘s guarantee of due process to fix a sentence based on a person‘s having committed a prior violent felony defined as “involv[ing] conduct that presents a serious potential risk of physical injury to another.”
I.
Mr. Clayton was sentenced not under the residual clause in the ACCA, but under an identical clause that appears in the career offender sentencing enhancement of the United States Sentencing Guidelines,
Mr. Clayton has asked this Court for the opportunity to request relief from the district court because he was subject to a much higher sentence due to 13 words the Supreme Court has held to violate an individual‘s constitutional rights. But we nonetheless must deny him the opportunity to even bring his claim to the district court‘s attention because this Court has erected barriers to Mr. Clayton and thousands of others despite the Supreme Court‘s unambiguous holding in Johnson.
II.
In throwing up these sorts of barriers, this Court consistently got it wrong. For starters, shortly after Johnson was decided, a panel of this Court limited severely the reach of that ruling by making relief unavailable to any inmate who previously had filed a motion to vacate his sentence under
But the panel refused to apply Johnson retroactively for two separate, newly formulated reasons. First, the panel held that Johnson could not be retroactively applica-
The Rivero panel‘s holdings contradicted what the Supreme Court had already told us about retroactivity principles. And the panel provided no basis in Supreme Court precedent to justify these two newly minted barriers to relief for those sentenced based upon language the Supreme Court had just told us was unconstitutionally vague. As to the first holding, the Supreme Court previously implicitly rejected the idea that the prospect of Congressional intervention could limit the retroactive applicability of a new substantive rule.3 As to the second holding in Rivero, nothing in the Supreme Court‘s body of retroactivity law so much as hinted at a requirement beyond what Justice O‘Connor described in Tyler v. Cain: “[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 that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review.” 533 U.S. 656, 668-69, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (O‘Connor, J., concurring); see In re Holladay, 331 F.3d 1169, 1172-73 (11th Cir. 2003) (applying Justice O‘Connor‘s test to hold that the Supreme Court had “made” the rule announced in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), barring the execution of intellectually disabled persons, retroactively applicable). Although the Rivero panel acknowledged that Justice O‘Connor‘s retroactivity test applied, it failed to employ the test as Justice O‘Connor constructed it.
Nonetheless, because of Rivero, from August 2015 until April 2016 we denied relief to every inmate whose Johnson-based request to file a second or successive
In Welch, the Supreme Court told us that we were wrong to hold that the rule announced in Johnson did not apply retroactively. 136 S.Ct. 1257, 1268 (2016). Welch was a case from our Circuit. Mr. Welch had filed a first
The Supreme Court in Welch flatly rejected this Court‘s Rivero holding that Johnson‘s rule was not retroactive. It noted that it had already rejected the argument that its decisions might not be retroactively applicable if Congress could “enact a new version of the residual clause that imposes the same punishment on the same persons for the same conduct, provided the new statute is precise enough to satisfy due process.” Id. at 1267; see Rivero, 797 F.3d at 991 (relying upon this reasoning). The “clearest example” the Court pointed out, was its prior decision in Bousley, which held a new rule to be retroactive “even though Congress could (and later did) reverse [the rule announced in] Bailey by amending the statute.” Welch, 136 S.Ct. at 1267 (emphasis added); see supra note 3.
Welch was an ACCA case, and it did not speak to the guidelines. But the Supreme Court issued another decision this term that fatally undermines the Rivero panel‘s alternative holding too. See Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Remember, the Rivero majority acknowledged that the Johnson rule was a new substantive rule of constitutional law. 797 F.3d at 989. In Montgomery, the Supreme Court stated in no uncertain terms that “courts must give retroactive effect to new substantive rules of constitutional law.” 136 S.Ct. at 728 (emphasis added). So although the Rivero panel required that for Johnson‘s rule to apply retroactively to the guidelines there be a third case holding that the guidelines could be void for vagueness, Montgomery reminded us that the inquiry is simpler. By the Rivero panel‘s own analysis, the Johnson rule was a new substantive rule of constitutional law. Under Montgomery, that means the rule must be given retroactive effect. Montgomery ends the analysis there.6 In short, we were wrong again.
Even before the Supreme Court could decide Montgomery or Welch, this Court erected yet another barrier to relief for individuals like Mr. Clayton who were sentenced under the very words the Johnson Court struck as unconstitutional. In United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), a panel of this Court held that the rule in Johnson did not apply to individuals sentenced under the advisory guidelines because those guidelines are not subject to the Due Process Clause‘s vagueness doctrine. 802 F.3d at 1193-94. For the reasons articulated in Judge Martin‘s and Judge Rosenbaum‘s concurrences in this case, I believe Matchett was wrongly decided. In my view, which I share with my colleagues, Matchett‘s holding was not grounded in the Constitution, the text of the career offender guideline, or any other solid legal foundation. Rather, the Matchett panel simply decreed that the advisory guidelines, unlike the ACCA, do not “fix punishments” and therefore are not subject to the limitations of due process. Id. at 1195. But in yet another case this term, the Supreme Court underscored that “the Guidelines are not only the starting point for most federal sentencing proceedings but also the lodestar.” Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016). “The Guidelines inform and instruct the district court‘s determination of an appropriate sentence. In the usual case, then, the systemic function of the selected Guidelines range will affect the sentence.” Id. at 1346; see also id. at 1349 (“[The guidelines] serve as the starting point for the district court‘s decision and anchor the court‘s discretion in selecting an appropriate sentence.“). By any honest reading, the guidelines fix punishments. As such, in my view, their application must comport with due process.
Matchett‘s reach in this Circuit is extensive. Now, no person whose advisory sentencing guidelines range was affected by the clause the Supreme Court held to be unconstitutionally standardless in Johnson may obtain relief, no matter how long he has been incarcerated or how diligently he has tried to preserve his claims. Bewilderingly, the Matchett panel erected this barrier even though the United States—the party responsible for the continued incarceration of career offenders—agreed with Mr. Matchett that the residual clause of the career offender guideline was unconstitutionally vague in light of Johnson. See Matchett, 802 F.3d at 1194.
IV.
This Court‘s penchant for deciding these fundamentally important issues in orders on requests for authorization to file—in the absence of any substantive, adversarial briefing—is frustratingly familiar. We have received over 1,800 requests for authorization to file a second or successive
Unfortunately, not all of my colleagues share my view. In fact, a panel of this Court recently extended Matchett‘s holding to cover individuals sentenced when the guidelines were mandatory rather than merely advisory. See In re Griffin, 823 F.3d 1350, 2016 WL 3002293 (11th Cir. May 25, 2016). I have previously expressed my view of why this decision was deeply flawed. See In re Sapp, 827 F.3d at 1335-41, 2016 WL 3648334, at *2-7 (Jordan, Rosenbaum, and Jill Pryor, J.J., concurring). This is not the only time since Johnson was decided that we have taken a previous decision of our Court and extended it in the successive
V.
When it comes to Matchett, we soon may be told we are wrong again. On the last day of this year‘s term, the Supreme Court accepted certiorari in Beckles v. United States, No. 15-8544, — U.S. —, 136 S.Ct. 2510, — L.Ed.2d —, 2016 WL 1029080 (U.S. June 27, 2016). Beckles is yet another Johnson case that originated in this Circuit. This time, the petitioner was sentenced as a career offender under the advisory guidelines (just like Mr. Clayton and Mr. Matchett) rather than under the ACCA. So the Supreme Court, in deciding Beckles, the Supreme Court will decide the very issue that Matchett concerns.
If we simply asked whether, on our existing precedent, the applicant has made a prima facie showing that his sentence was based on crimes that met the definition of “violent felony” before Johnson but no longer do, we undoubtedly would be granting authorization to file second or successive
I recognize that the number of requests for authorization we have received in the wake of Johnson has been extremely taxing on our Court. We have been inundated with thousands of filings in addition to our regular court work. And I understand that published orders from this Court that categorically foreclose relief to whole groups of individuals, like Matchett and Griffin, may lessen that burden on district courts, too. But such prudential concerns are not reasons to refuse to remedy constitutional violations. As judges we are not sworn to shield district courts; rather, we are sworn to uphold the Constitution and vindicate the individual rights that the Constitution protects.
If the Supreme Court decides Beckles in Mr. Clayton‘s favor, he may be able to file another request for authorization under