[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. , 135 S. Ct. 2551 (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, id. § 2255. 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, id. §§ 2255(h), 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, 640 F.3d 1293, 

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.” 

Id. § 2244(b)(3)(C). 

 A “new rule of constitutional law,” id. § 2255(h)(2), 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, 489 U.S. 288, 308, 

109 S. Ct. 1060, 1074 (1989) (plurality opinion). The first exception requires the 

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retroactive application of “[n]ew substantive rules.” Schriro v. Summerlin, 542 

U.S. 348, 351, 124 S. Ct. 2519, 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.” Id. at 351, 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,” id. at 352, 124 S. Ct. at 2522–23 (internal quotation marks and citation 

omitted); see also Teague, 489 U.S. at 311, 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,” Teague, 489 U.S. at 

313, 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, 

738 F.3d 1253, 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 process.” 135 S. Ct. at 

2563. That is, Johnson “narrowed the class of people who are eligible for” an 

increased sentence under the Armed Career Criminal Act. Bryant, 738 F.3d at 1278 

(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, 533 U.S. 

656, 663, 121 S. Ct. 2478, 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, 396 F.3d 1336, 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.” Id. (internal quotation 

marks and citation omitted); see also In re Henry, 757 F.3d 1151, 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 review, 135 S. Ct. at 2556, the decision did not 

“express[ly] hold[]” that it applies retroactively, In re Moss, 703 F.3d 1301, 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 Anderson, 396 F.3d at 1339. 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 vague, 135 S. Ct. at 2558, 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,” Teague, 489 U.S. at 311, 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 

Anderson, 396 F.3d at 1339 (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, 539 U.S. 558, 123 S. Ct. 2472 (2003), in which the Supreme Court held that 

the Fourteenth Amendment forbids states from making illegal private, homosexual 

sodomy between consenting adults, id. at 578, 123 S. Ct. at 2484, and Texas v. 

Johnson, 491 U.S. 397, 109 S. Ct. 2533 (1989), in which the Supreme Court held 

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

the American flag in protest, id. at 414, 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 

352, 124 S. Ct. at 2522. 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, 536 U.S. 304, 122 

S. Ct. 2242 (2002), in which the Supreme Court held that the Eighth Amendment 

forbids states from “tak[ing] the life of a mentally retarded offender,” id. at 321, 

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

Louisiana, 554 U.S. 407, 128 S. Ct. 2641 (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,” id. at 447, 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.” Schriro, 542 U.S. at 

352, 124 S. Ct. at 2523; see also In re Holladay, 331 F.3d 1169, 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.” Id. at *7. 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 Anderson, 

396 F.3d at 1339 (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, 683 F.3d 358, 363–66, 365 n.3 (7th 

Cir. 2012); see also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); 

United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. 

Wivell, 893 F.2d 156, 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, 542 U.S. 348, 124 S. Ct. 2519, 

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,” id. at 351–52, 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, 

523 U.S. 614, 118 S. Ct. 1604 (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, Schriro, 542 U.S. at 351, 124 S. Ct. at 2522; see 

also Bousley, 523 U.S. 614, 118 S. Ct. 1604 (discussing the new substantive rule 

announced in Bailey v. United States, 516 U.S. 137, 139, 116 S. Ct. 501, 503 

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

516 U.S. at 139, 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 351–52, 124 S. Ct. at 2522 (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 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 Anderson, 396 

F.3d at 1339 (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 id. at 20 (asserting that the applicant’s “claim 

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

that the government asserted might “plausibl[y],” id. at 19, 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 Anderson, 

396 F.3d at 1339 (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, 135 S. Ct. 2551 

(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, 542 U.S. 348, 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 id. at 7 (“[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 Johnson, 135 S. Ct. at 2563 (“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, 133 S. Ct. 1103, 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, 533 U.S. 656, 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, 20 F.3d 415, 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.” 

Id. For a 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.” Id. As Justice 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, 

331 F.3d 1169, 1172 (11th Cir. 2003) (quoting Tyler, 533 U.S. at 668 (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. 489 U.S. 288, 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.” Id.

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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, 523 U.S. 614 (1998), the 

Supreme Court refused an invitation to apply Teague’s general rule of nonretroactivity. Kenneth Bousley was convicted in 1990 of “using” a firearm in 

violation of 18 U.S.C. § 924(c)(1). Id. at 616. After the Eighth Circuit Court of 

Appeals affirmed his conviction, Mr. Bousley sought collateral relief. Id. at 617. 

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.” 

516 U.S. 137, 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. 

Bousley, 523 U.S. at 617-18. 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. Teague, 489 U.S. at 307, 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. Id. at 617-18. 

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,’ [Teague, 489 U.S. at 311,] necessarily carry a significant 

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

criminal.” Id. at 619-21 (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.” Id. at 621 (emphasis added). Put 

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

Id.; see United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002) (“Decisions of 

the Supreme Court construing substantive federal criminal statutes must be given 

retroactive effect.” (citing Bousley, 523 U.S. at 620-21)). 

In Schriro v. Summerlin, 542 U.S. 348 (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, 523 U.S. 614, 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, 489 U.S. 288, 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. Bousley, supra, at 620. 

Id. at 351-52 (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, 738 F.3d 1253, 1278 (11th 

Cir. 2013) (citing Summerlin, 542 U.S. at 351-52)). “That is, Johnson ‘narrowed 

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

Career Criminal Act.” Id. at 4-5 (quoting Bryant, 738 F.3d at 1278 (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. Summerlin, 542 U.S. at 351-52. Thus, the rule 

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announced 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,” 

Summerlin, 542 U.S. at 351, 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 Summerlin, 542 U.S. at 352 (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 

risk. 542 U.S. at 352 (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 Peter, 310 F.3d at 711. 

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 Teague, 489 U.S. at 311, 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, 396 F.3d 1336, 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. Tyler, 533 U.S. at 668 (O’Connor, J., 

concurring); see Holladay, 331 F.3d at 1172 (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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22 

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

shotgun because that clause is unconstitutionally vague, 135 S. Ct. at 

2558, 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,” Teague, 489 U.S. at 311, 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].” Summerlin, 542 U.S. at 351-52 (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., 557 F.2d 536, 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 retroactive. 542 U.S. at 

351-52. 

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Summerlin, 542 U.S. at 351-52 (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. Id. (citing Teague). 

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.” Tyler, 533 U.S. at 668-69 (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.” Id. at 669. 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. Bousley, 523 U.S. at 620. 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.” Summerlin, 542 U.S. at 351-52 (quoting Bousley, 523 U.S. at 620). 

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 law.” 135 S. Ct. at 2557. In so holding, the Supreme Court 

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

542 U.S. at 351 (citing Bousley, 523 U.S. at 620-21); 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. Tyler, 533 U.S. at 666-67. 

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.” Summerlin, 542 U.S. at 352 

(quoting Bousley, 523 U.S. at 620). 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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25 

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 injury.” 135 S. Ct. at 2556-57 (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.” 

Summerlin, 542 U.S. at 352 (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 motion. 533 U.S. at 662. “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.’” Id. 

This test 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. Id. More importantly, 

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

added). 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.” Id. at 668-69 

(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,’” Tyler, 533 U.S. at 668 (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, 2015 WL 4621024, 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. Tyler, 533 U.S. at 668. 

Case: 15-13089 Date Filed: 08/12/2015 Page: 26 of 33 
27 

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

should. Id. at *1; 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 1998. 523 U.S. at 616 (citing 

Bailey, 516 U.S. at 144). 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, 2015 

WL 4621024, at *1. The Seventh Circuit relied upon the same language from Summerlin, 

quoting Bousley, that I do. Id. at *2. The Court also observed that its conclusion was consistent 

with Teague. Id. 

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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. Bousley, 523 U.S. at 621 (“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 Summerlin, 542 U.S. at 351-52. 

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. Johnson, 135 S. Ct. at 

2561. “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. Id. This “abstract inquiry,” the Court said, “offers significantly less predictability” than 

one tied to actual conduct rather than to the abstract conditions the categorical approach requires. 

Id. The Supreme 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?” Id. Would it 

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? 

Case: 15-13089 Date Filed: 08/12/2015 Page: 29 of 33 
30 

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, 349 F.3d 608, 614 (9th Cir. 2003) (“We allow challenges to the 

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

979 F.2d 317, 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, 2015 WL 4393889, at *1 (6th Cir. 

July 20, 2015). 

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31 

residual clause was not void for vagueness (citing United States v. Gandy, 710 

F.3d 1234 (11th Cir. 2013)); see also United States v. Rutherford, 175 F.3d 899, 

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, 543 U.S. 220 (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 id. at 234 (“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 Johnson, 135 S. Ct. at 2557, overly vague Sentencing Guidelines 

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

also id. at 237 (“[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 preBooker mandatory guidelines regime, application of the impermissibly vague 

residual clause to him axiomatically offended due process. 

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32 

 In any event, I do not agree that a Supreme Court ruling on a void-forvagueness 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.” Johnson, 135 S. Ct. at 

2560. 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. 

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