PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BOBBY G. PULLEN, Defendant - Appellant. No. 17-3194

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)

________________ _________________ Daniel T. Hansmeier, Appellate C hief, Kansas Federal Public Def ender (Melody Brannon, Federal Public Defende r, and Kirk Redmond, First Assis tant Federal Public Defender), Kansas City, Kansas , for Defendant - Appellant. Jared S. Maag, Assistant United States Attorney (Thomas E. Beal l, former United States Attorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant United States Attorney, with himon the briefs), Topeka, Kansas , for Plaintiff - Appellee.

________________ _________________ Before McHUGH , MORITZ , and EID , Circuit Judges.

________________ _________________ McHUGH , Circuit Judge.

________________ _________________
The district court sentenced Bo bby G. Pullen as a career offen der pursuant to United States Sentencing Guidelin es Manual (“USSG”) § 4B1.1 at a time when the FILED United States Court of Appeals Tenth Circuit 

### January 29, 2019
Elisabeth A. Shumaker Clerk of Court2 Sentencing Guidelines were mand atory. In 2015, the Supreme Court decided Johnson v. United States , 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S .C. § 924(e)(2)(B)(ii) is unconstituti onally vague. As the residual clause of § 924(e)(2)(B)(ii) is identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision for USSG § 4B1.1), Mr . Pullen, relying on Johnson , moved for authoriz ation to file a second or successive 28 U.S.C. § 2255 motion. This court determ ined Mr. Pullen made a prima facie showing that Johnson created a retroactive, newrule of constitutional law applicable to the mandatory Guid elines. The district court, how ever, concluded Johnson did not actually create a new ru le applicable to the mandatory Guidelines and dismissed Mr. Pullen’s § 2255 motion purs uant to 28 U.S .C. § 2255(h)(2), a provision governing authorization to file a second o r successive § 2255 motion. The district court did, however, grant Mr. Pullen a certificate of appealability (“COA” ). On appeal, Mr. Pullen argues the district court procedurally e rred when it relied on § 2255(h)(2) as the basis for dis missing his § 2255 motion and substantively erred when it determined Johnson did not create a new rule applic able to the mandatory Guideline s. As to Mr. Pullen’s procedural c hallenge, our recent decision in United States v. Murphy , 887 F.3d 1064 (10th Cir.), cert. denied , 2018 WL 3462559 (Oct. 29 , 2018), forecloses his argument. With respect to Mr. Pu llen’s substantive challenge, the Supreme Court has never recognized a void for vagueness challenge to the Guidelin es and so Johnson neither creates a new rule applicable to the Guidelines nor dictates th at any provision of the3 Guidelines is subject to a void for vagueness challenge. Accord ingly, we affirm the district court’s judgment.
I. BACKGROUND In 1999, a jury convicted Mr. P ullen of one count of possessio n with intent to distribute 100 kilograms or mor e of marihuana, or aiding and ab etting the same, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B), 18 U.S.C. § 2. A t sentencing, the district court established a total offens e level of thirty-four and a cr iminal history category of VI. The offense level and criminal h istory category resulted from a pplication of the career offender provision of USSG § 4 B1.1 (1998). Applic ation of the c areer offender provision rested in part on a prior Miss ouri conviction for escape. Under the offense level and criminal history category comp elled by the career offender prov ision, the presentence investigation report set Mr. Pu llen’s Guidelines range at 262 t o 327 months’ imprisonment. The district court sentenced Mr. Pullen to 262 mo nths’ imprisonment. Absent designation as a career o ffender, Mr. Pullen’s Guideline s range would have been 92 to 115 months’ imprisonment. In 2006, Mr. Pullen filed his fi rst motion under 28 U.S.C. § 22 55, which the district court dismis sed as untimely. United States v. Pullen , No. 98–40080–JAR, 2006 WL 1133232, at *1 (D. Kan. A pr. 21, 2006). In 2015, the Su preme Court decided Johnson , relying on the void for vaguene ss doctrine to invalidate the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. Thi s residual clause is part of the Armed Career Crimina l Act (“ACCA”), which enhances the statutory mandatory minimum for certain def endants who have three or more previous4 convictions “for a violent felony or a serious drug offense.” 1 8 U.S.C. § 924(e)(1). Section 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is burglary, arson, or extortion , involves use of explosives, or otherwise involves conduct that presents a se rious potential risk of phy sical injury to another .” (emphasis added). The clause em phasized above is the residual c lause invalidated in Johnson . Importantly, the residual clau se of § 924(e)(2)(B)(ii) is ide ntical to the residual clause in USSG § 4B1.2, w hich defined “crime of violen ce” for purposes of the career offender guideline as an offense that “is burglary o f a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .” USSG 4B1.2(a)(2) (emphasis added). Within one year of the decision in Johnson , Mr. Pullen, relying on 28 U.S.C. § 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable to the mandatory Guidelines, file d a motion in this court for a uthorization to file a second or successive § 2255 moti on. We granted the motion for a uthorization and Mr. Pullen filed his § 2255 moti on in district court. The Gover nment filed a response in which it conceded Mr. Pulle n’s Missouri escape conviction qu alified as a “crime of violence” only under the resi dual clause of USSG § 4B1.2(a)( 2) but argued, in part, that (1) Johnson did not create a new rule a pplicable to the mandatory Guidelines; (2) a rule allowing void for vagueness challenges t o the Guidelines would be a new rule that the S upreme Court had not yet recogniz ed; and (3) Mr. Pullen’s motion was, therefore, untimely for purposes of 28 U.S .C. § 2255(f).5 The district court focused its analysis on § 2255(h)(2)’s requ irement that Mr. Pullen’s motion be based on “a ne w rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The district court concluded Mr. Pu llen’s motion was untimely and d id not satisfy § 2255(h)(2) because relief was p remised on the void for vaguen ess doctrine applying to the Guidelines but neither Johnson nor any other Supreme Court case has recognized a void for vagueness challenge to the Guidelines. Thus, the distr ict court, relying on § 2255(h)(2), dismissedMr. Pullen’s motion. The district court, however, g ranted Mr. Pullen a COA. In pert inent part, the COA reads: “Here, the Court conclude s that reasonable jurists could debate whether the Court was correct in its ruling. The Court thus grants a COA on the i ssue of whether Mr. Pullen’s motion falls within the s cope of 28 U.S.C. § 2255(h)(2 ).” ROA at 187. In his opening brief, Mr. Pulle n focuses on the § 22 55(h)(2) nature of the dismissal, arguing this provision is directed at the circ uit court’s authority to grant a prisoner authorization to file a second or successive § 2255 mo tion and, once a circuit court grants authorization, the district court may not dismiss th e motion pursuant to § 2255(h) (2). 1 In its response brief, the Government argues a grant o f authorization by a circuit court only preliminarily certifies that the movant satis fied the preconditions for a sec ond or successive § 2255

1 Mr. Pullen moved for leave to file a pro se opening brief. Bec ause Mr. Pullen is represented by counse l, we deny his motion. See United States v. McDermott , 64 F.3d 1448, 1450 n.1 (10t h Cir. 1995) (declin ing to consider iss ues raised in pro se brief based on “policy of addres sing on direct appeal only thos e issues raised by counsel”).6 motion and that the district cour t has a secondary gatekeeping role to assure the motion does, in fact, satisfy § 2255(h)( 2). The Government further arg ues the district court correctly concluded Johnson did not create a retroactive , new rule applicable to the mandatory Guidelines. After briefing concluded, sever al key developments occurred inthe law surrounding Johnson

. First, the Supreme Court issued its decision in Sessions v. Dimaya , holding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which is similarly, but not identica lly, worded to the residual claus e of § 924(e)(2)(B)(ii)—was unconstitutionally vague. 138 S. C t. 1204 (2018). Second, the S upreme Court denied certiorari petitions in several cases where circuit courts reje cted § 2255 Johnson -based challenges to the residual clause in US SG § 4B1.2. See, e.g. , Raybon v. United States , 138 S. Ct. 2661 (2018); Lester v. United States , 138 S. Ct. 2030 (2018). Third, several other circuit courts addressed whether Johnson created a retroactive, new rule applicable to the residual clause of USSG § 4B1.2. See United States v. Blackstone , 903 F.3d 1020, 1025–28 (9th Cir. 2018) (holding Su preme Court has yet to announce rule that mandatory Guidelines are susceptible to v oid for vagueness challenge); Russo v. United States , 902 F.3d 880, 882–84 (8thCir. 2018) (denying § 2255 relief and hol ding prisoner was not asserting a right based on Johnson because reasonable minds could debate whether Johnson announced a new rule o f constitutional law applicable to the m andatory Guidelines); United States v. Green , 898 F.3d 315, 319–23 (3d Cir. 2018) (holding § 2255 motion untimely because Beckles v. United States , 137 S. Ct. 886 (2017), favors conclusion Johnson did not create new rule applic able to mandatory Guidelines and that7 issue remains open); Cross v. United States , 892 F.3d 288, 299–306 (7th Cir. 2018) (holding Johnson created new rule applicable t o all vague, mandatory residual c lauses that enhance punishment such th at § 2255 relief from sentence i mposed under mandatory Guidelines scheme was proper). In the midst of these developmen ts, we ordered the parties to s ubmit simultaneous supplemental briefs. I n his supplemental brief, Mr . Pullen argues Dimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C. § 924(e)(2)(B)(ii). 2 And Mr. Pullen articulates the new rule from Johnson as a due process right not to have a s tatutory penalty range fixed b y a provision that defines a priorconviction as one involving “con duct that presents a serious potential ri sk of physical injury to another ,” and that uses an ordinary-case categorical approach to measure whether t he conviction is sufficiently ris ky to count under the provision. Pullen Supp. Br. at 5–6 (not ide ntifying source of quotation). The Government argues neither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision or whether the void for vaguene ss doctrine applies to the Guide lines. Rather, the Government argues, Beckles provides the best guidance on whether Johnson created a new rule relative to the manda tory Guidelines. The majority o pinion in Beckles rejected a Johnson -based challenge to the advi sory Guidelines and Justice Sotomayor, in a concurrence, indicated that Johnson ’s applicability to the mandatory Guidelines “remains an open question.” Gov. Supp. Br. at 5. The Government

2 Out of concern that his counsel might not have filed a supplem ental brief, Mr. Pullen moved to file a pro s e supplemental brief. As Mr. Pu llen is represented by counsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion. See McDermott , 64 F.3d at 1150 n.1.8 theorizes that if the q uestion remains open, Johnson does not create a new rule applicable to the mandatory Guide lines because, if a question i s “expressly left open, then the right, by definiti on, has not been recognized.” Id. at 5–6 (quoting United
States v. Brown , 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied , 139 S. Ct. 14 (2018)). Finally, subsequent to oral argum ent, the Supreme Court, over a two justice dissent, denied certiorari peti tions in a second set of cases w here circuit courts denied § 2255 motions raising Johnson -based challenges to the r esidual clause of USSG § 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States , 139 S. Ct. 14 (2018); see Gipson v. United States , 2018 WL 1993703 (Oct. 15, 2018); Lewis v. United States , 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States , 2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States , 2018 WL 2064772 (Oct. 15, 2018); Molette v. United States , 2018 WL 1640168 (Oct. 15, 2018); Homrich v. United States , 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States , 2018 WL 3024068 (Oct. 15, 2018); Smith v. United States , 2018 WL 3024136 (Oct. 15, 2018); Buckner v. United States , 2018 WL 3024166 (O ct. 15, 2018); 3 see also Robinson v. United States , 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States , 2018 WL

3 Footnote 1 of the dissent from the denial of certiorari in Brown v. United States indicates that the dissent also applies to the other nine orde rs denying certiorari that issued on Octobe r 15, 2018. 139 S. Ct. 14, 14 n .1 (2018) (Sotomayor, J., dissenting from denial of ce rtiorari). Where Justice Ginsbu rg joined the dissent in Brown in full and without reservation , we interpret footnote 1 as ind icating that Justice Ginsburg dissented from the other nine denials of certi orari issued on October 15, 2018, even though the orders in those denial s do not specif ically identify Justice Ginsburg as dissenting.9 3660076 (Dec. 3, 2018); Bowens v. United States , 2018 WL 5113456 (Nov. 19, 2018); Callins v. United States , 2018 WL 4932460 ( Nov. 13, 2018).
II. STANDARD OF REVIEW “Where, as here, the district c ourt does not hold an evidentiar y hearing, but rather denies the motion as a m atter of law . . . our review is strictly de novo.” United
States v. Barrett , 797 F.3d 1207, 1213 (10t h Cir. 2015) (quotation marks omitted ). Further, “[w]e are not bound by the district court’s reasoning and may affirm on any ground adequately suppor ted by the record.” United States v. Greer , 881 F.3d 1241, 1244 (10th Cir. 2018), (intern al quotation marks omitted) cert. denied 2018 WL 2087987; see Grossman v. Bruce , 447 F.3d 801, 805 n.2 (10t h Cir. 2006) (“[W]e are free to affirm [the denial of 28 U.S.C. § 2241 relief] on any g round for which there is a sufficient record to perm it conclusions of law.”).
III. DISCUSSION
A. Threshold Requirement for Second or Successive § 2255 Motion Although prisoners who have not f iled a prior § 2255 motion ma y file such a motion directly in the district c ourt, a prisoner who filed a p rior § 2255 motion must obtain authorization from a cir cuit court judge prior to filing the motion in district

court. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in th e district court, the applicant shall move in the appr opriate court of appeals for an order authorizing the district court to consider the a pplication.”). Section 2255(h) of Title 28 sets out the requirements for authorization and states, in pertinent part:10 A second or successive motion must be certified as provided in section 2244 by a panel of the appropria te court of appeals to contain—

. . . (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Suprem e Court, that was previously unavailable. To obtain authorization to file a second or successive § 2255 m otion, a movant relying on a new rule of constitu tional law must make a prima f acie showing to the circuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C. § 2244(b)(3)(C).
B. Secondary Requirement for Seco nd or Successive § 2255 Motion Having concluded that Mr. Pullen made a prima facie showing to the circuit court that he satisfies the § 2255(h )(2) requirements, we next consid er whether the district court possessed the authority to deny Mr. Pullen relief and dis miss his § 2255 motion pursuant to § 2255(h)(2) after th e circuit court certified his prima facie compliance. Our recent decision in Murphy controls our analysis. As discussed, “[u]nder § 2255(h )(2), a second or successive [§ 2255] motion must be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain a previously unavailable new rule of constitutional law that th e Supreme Court has made retroactively applicable t o cases on collateral review.” Murphy , 887 F.3d at 1067. In turn, § 2244(b)(3) inst ructs that “to receive certific ation, a motion need only make a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added). Because § 2244(b)(3) requires onl y a prima facie showing for ce rtification by the court of appeals, certification amounts to only a “preliminary” determination that the11 second or successive § 2255 moti on contains a claim based on a new rule of constitutional law made retroacti ve on collateral review by the Supreme Court. Id. The “preliminary” nature of this determination means the movant must pass through a second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the court of appeals grants authoriza tion, the district court must determine whether the petition does, in fact, satisfy the requirements for filing a s econd or successive motion before the merits of the motion can be considered.” Id. (internal quotation marks omitted). In summation, the two procedural gates a prison er must pass through before obtaining review of the merits of a second or successive § 2255 motion are: (1) a prima facie showing to the c ourt of appeals that the motion satisfies the requirements of § 2255(h), defined as “a sufficie nt showing of possible merit to wa rrant a fuller exploration by th e district court” and (2) a determination by the districtcourt that the petition does, i n fact, satisfy those requirements.
Id. at 1068 (quoting Bennett v. United States , 119 F.3d 468, 469 (7th Cir. 1997)). In accord with this two-gate appr oach, the district court was required to analyze whether Mr. Pullen’s § 2255 motion actually relied on “ a new rule of constitutional law, made retroac tive to cases on collateral rev iew by the Supreme Court” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s § 2255 motion did not actually r ely on a new rule of constituti onal law applicable to the mandatory Guidelines, the dis trict court reli ed on § 2255(h )(2) to dismiss the motion.12 With these requirements in mind , we discuss the history of the Sentencing Guidelines and of Johnson and its progeny before turning to the issue of whether the district court correctly determi ned that Mr. Pullen cannot actu ally satisfy the requirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his motion relies on a new rule of c onstitutional law already decid ed and deemed retroactively applicable by the Supreme Court.
C. Legal Background
1. History of the Guidelines In 1984, Congress authorized the United States Sentencing Comm ission to promulgate the Sentencing Guidelines. Mistretta v. United States , 488 U.S. 361, 362 (1989). Prior to the adoption of the Guidelines, the often expa nsive statutory minimum and maximum penalties foran offense served as the only constraint on a federal judge’s discre tion at sentencing. Id. at 364 (describing th e pre-Guidelines sentencing scheme as one where “ Congress delegated almost unfet tered discretion to the sentencing judge to determine what the sentence should be w ithin the customarily wide range so selected”). One o f the primary purposes behind th e creation of the Guidelines was to “promote uniformity and proportionality in se ntencing” across the country. United States v. Jackson , 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en banc). And in passing the Senten cing Reform Act of 1984, Congre ss intentionally “settl[ed] on a mandatory-guideli ne system,” rather than an adv isory system.
Mistretta , 488 U.S. at 367.13 Codifying the generally mandato ry nature of the Guidelines, Co ngress enacted 18 U.S.C. § 3553(b)(1), which states, in pertinent part: Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range , [produced by the Guidelines] unless the court finds that there exis ts an aggravating or mitigating circumstance of a kind, or to a d egree, not adequately taken in to consideration by the Sentencin g Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumst ance was adequately taken into consideration, the court shall consider only the sentencing gui delines, policy statements, and official commentary of the Sentencing Commission. (emphasis added). In 2005, the S upreme Court struck down the ab ove-quoted statutory provision, concluding t he Sixth Amendment precluded a sentencing judge from finding facts that effectivel y increased a defendant’s pun ishment where those facts had not been found by a jur y or admitted by the defendant as part of a guilty plea. United States v. Booker , 543 U.S. 220, 244 (2005). 4 In reaching this conclusion, the Court held the Guidelines act ed like a statute because a se ntencing judge’s ability to depart from the Guidelines ra nge was so strictly limited tha t the Guidelines range drove a defendant’s sentence in the vast majo rity of cases. Id. at 234. To solve the constitutional problem with a manda tory-Guidelines scheme, the Supreme Court severed the portion of the Sente ncing Reform Act of 1984 that m ade the Guidelines

4 Despite Booker ’s statement about judicial factfi nding at sentencing violating the Sixth Amendment, an excepti on to this general prohibition e xists where the district court makes factual fi ndings regarding a defendant’s p rior criminal history. See Apprendi v. New Jersey , 530 U.S. 466, 496 (2000).14 mandatory, transforming the Guide lines into their present-day, advisory form. Id. at 265; see also id. at 245–60.
2. Johnson and its Progeny In 2015, the Supreme Court a ddressed the constitutionality of 18 U.S.C. § 924(e)(2)(B). Section 924(e)(2 )(B) defined “violent felony” a s any crime punishable by impris onment for a term exceeding one y ear . . . that— (i) has as an element the use, attemp ted use, or threatened use of physical force against th e person of another; or (ii) is burglary, arson, or extorti on, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another (emphasis added). In Johnson , the Court concluded the emphasized language, known as the residual clause, was voi d for vagueness because “the ind eterminacy of the wide-ranging inquiry required by th e residual clause both denie s fair notice to defendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at 2556 (identifying “fai l[ure] to give ordinary people fair notic e of the conduct it punishes” and being “so standard less that it invites arbitrary enforcement” as two bases for finding statute unconstitutionally vague). Johnson , however, limited its holding to the residual clau se of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s decision does not call into quest ion application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA’s] definition of a viol ent felony.”); see also
Greer , 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in Johnson was a defendant’s right not to have his sentence increased und er the residual clause of the ACCA.”).15 In the aftermath of Johnson , courts were flooded w ith challenges, both on direct appeal and under § 2255, t o convictions or sentences sup ported by § 924(e)(2)(B)(ii) or other pr ovisions resembling § 924(e)(2)(B )(ii). A trio of Supreme Court cases shape t he state of the law post- Johnson . First, in Welch v. United States , the Court held Johnson announced a new rule of constitutional law that applied retroactively to cases on collateral review. 136 S . Ct. 1257, 1264–65 (2016). Although Welch never explicitly sta tes the rule from Johnson , the majority opinion suggests the rule w as limited to the ACCA. See id. at 1265 (“By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Crimina l Act, altering the range of c onduct or the class of persons that the [Act] punishes . . . . The residual clause is invalid under Johnson , so it can no longer mandate or authorize any sentence. Johnson establishes . . . that even the use of impeccable factfinding procedures could not legitima te a sentence based on that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J., dissenting) (“Johnson ’s new constitutional rule is that a law is unconstitutionally vague if it ‘requires a court to picture the kind of conduct th at the crime involves in “the ordinary case,” and to judge whether that abstraction pres ents a serious potential risk,’ of some result.” (quoting Johnson , 135 S. Ct. at 2557)). Second, in Beckles , the Court addressed whether the residual clause of USSG § 4B1.2 of the advisory Guidelin es was susceptible to a void fo r vagueness challenge16 similar to the challeng e that prevailed in Johnson

. 5 See 137 S. Ct. at 890. Because the residual clause of USSG § 4B1.2 (a)(2) was identical to the lang uage held void for vagueness in Johnson , several circuit courts, includi ng this court, concluded the rule from Johnson necessitated the invalidation of the residual clause in § 4B1. 2(a)(2) within the context of t he advisory Guidelines. See United States v. Pawlak , 822 F.3d 902 (6th Cir. 2016); United States v. Hurlburt , 835 F.3d 715 (7th Cir. 2016) (en banc); United States v. Madrid , 805 F.3d 1204 (10th Cir. 2015). But see United States v. Matchett , 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge to advisory Guidelines).
In Beckles , the Supreme Court rejected t he position that the advisory Guidelines were suscep tible to the rule from Johnson or a void for vagueness

5 Recall that USSG § 4 B1.2 defined “crime of violence” as: [A]ny offense under federal or s tate law, punishable by impriso nment for a term exceeding one year, that— (1) has as an element the use, attemp ted use, or threatened use of physical force against th e person of another, or (2) is burglary of a dwelling, ars on, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

. USSG § 4B1.2(a) (1998–2015) (em phasis added). The emphasized la nguage is the residual clause that was at issue in Beckles v. United States , 137 S. Ct. 886 (2017), and is at issue in this case. I n 2016, the Sentencing Commissio n passed an amendment to the Guidelines addi ng several enumerated offenses to subsection (2) and removing the residual clause of the subsection. USSG Supp. to App. C., Amend 798 at 131 (Nov. 1, 2016) (“Ame ndment 798”). Amendment 798, how ever, has no bearing on Mr. Pullen’s case as the Amendment does not apply re troactively. See USSG § 1B1.10(d) (listing amendm ents that apply retroactively).17 challenge. 137 S. Ct. at 894–95. I n so holding, the Court obser ved it had “invalidated two kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and third emphases added). The Beckles Court further observed that “‘ statutes fixing sentences’ must specify the ra nge of available sentences with ‘ sufficient clarity,’” id. (emphasis added) (first quoting Johnson , 135 S. Ct. at 2557, then quoting United States v. Batchelder , 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range of penalties that pro secutors and judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty’” to craft a law that comports with due pro cess, id. at 893 (quoting
Batchelder , 442 U.S. at 126). The Court then distinguished the advisory Guidelines, which “do not fix the permissible range of sentences,” from the “statute” at issue in Johnson , which did “fix[] perm issible sentences.” Id. at 892. From this, the Court concluded “[t]he advisory Guidelines . . . do not implicate the twin concerns underlying [the] vagueness doctr ine—providing notice and preven ting arbitrary enforcement.” Id. at 894. As to the first of thes e concerns, “[a]ll of the notic e required is provided by the app licable statutory range, which e stablishes the permissible bounds of the cour t’s sentencing discretion.” Id . Along those lines, the Court stated, “[t]he Guidelines . . . do not regulate the publi c by prohibiting any conduct or by ‘establishing mini mum and maximum penalties for a ny crime.’” Id. at 895 (quoting Mistretta , 488 U.S. at 396). The majority opinion in Beckles , however, indicated that the second concern of the void for vagueness doctrine—pr eventing arbitrary enforcemen t—was ameliorated18 by the advisory nature of the Guidelines post- Bookerand the sentencing judge’s discretion to impose a sentence anywhere within the statutory r ange. Id. The distinction between the discreti on afforded sentencing judges u nder the advisory Guidelines, compared to the manda tory Guidelines, caught the at tention of Justice Sotomayor, whose concurrence stated: The Court’s adherence to the for malistic distinction between ma ndatory and advisory rules at least leav es open the question whether de fendants sentenced to terms of impris onment before our decision in United States v. Booker , 543 U.S. 220 (2005)—that is, d uring the period in which the Guidelines did “fix the permissible range of sentences”—may mount vagueness attacks on their senten ces. That question is not pres ented by this case and I, lik e the majority, take no position on its app ropriate resolution.
Id. at 903 n.4 (Sotomayor, J. concu rring in the judgment) (citatio ns omitted). Third, in Dimaya , the Supreme Court relied on the void for vagueness doctrine to strike down 18 U.S.C. § 16(b )’s definition of crime of viole nce, a provision the Court described as “similarly wo rded” to the residual clause st ruck down in Johnson

. Dimaya , 138 S. Ct. at 1210. In so holding , the opinion of the Court mad e three statements potentially important to determining the scope of th e new rule from
Johnson . First, Dimaya indicated its ruling was a product of “adhering” to the analysis set forth in Johnson

. Id . Second, Dimaya called Johnson “a straightforward decision, with equally straightfo rward application here” such t hat the “reasoning” of Johnson “effectively resolved the [ issue] before” the Court in Dimaya

. 6 Id. at 1213.

6 Notably, Dimaya could have, but did not, s tate that any “rule” from Johnson “dictated” a result in Dimaya

. Cf. Russo v. United States , 902 F.3d 880, 883 (8th Cir.19 Finally, Dimaya compared § 16(b) and § 924(e)(2 )(B)(ii), stating that both sta tutes “‘require[] a court to picture the kind of conduct that the cri me involves in “the ordinary case” and to judge wheth er that abstraction presents’ some not-wellspecified-yet-sufficiently -large degree of risk.” Id. at 1216 (quoting Johnson , 135 S. Ct. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b) produces, just as the ACCA’s res idual clause did, ‘more unpredi ctability and arbitrariness than the Due P rocess Clause tolerates.’” Id. at 1216 (quoting Johnson , 135 S. Ct. at 2558).
D. Analysis Based on Johnson and its progeny, Mr. Pulle n describes the new and retroactive rule from Johnson as a right not to be sente nced under an ordinary-case categorical approach requiring a judge to picture conduct of th e crime and predict whether that conduct presents a s ufficiently large degree of ri sk. Before considering the rule Mr. Pullen advances, w e pause to address the iteration s of the rule by this court and others. We then turn t o the formulation of the rule e ndorsed by Mr. Pullen, ultimately deciding it does not per mit relief on a second or su ccessive § 2255 claim challenging the mandatory Guidelin es because the Supreme Court has not yet

2018) (quoting Teague v. Lane , 489 U.S. 288, 301 (1989) , for proposition that “[a] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final” and concluding th at any rule relative to the mandatory Guidelines would be a new rule because the rul e “is not dictated by Johnson ”).20 announced a rule with respect t o the mandatory Guidelines. Thus , we agree with the district court that Mr. Pullen’ s motion does not actually satis fy § 2255(h)(2).
1. Decisions Defining the Rule Announced in Johnson Several circuit court decisions , including our own decision in Greer , have stated the new rule created by Johnson as “a defendant’s ri ght not to have his sentence increased under the re sidual clause of the ACCA.” 7 Greer , 881 F.3d at 1248; see also Green , 898 F.3d at 321 (“[I]n light of Beckles , Johnson ’s holding as to the residual clause in the ACCA created a right only as to the ACCA, and not a broader right that applied to all similarly worded residual cla uses, such as that found in the advisory Sentencing Guidelines.”); Brown , 868 F.3d at 303 (“ Johnson only recognized that ACCA’s residual clause was unconstitutionally v ague.”). If this phrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to proceed on his § 2255 motion becau se his Guidelines range was i ncreased as a result of application of USSG § 4B1.1 a nd the residual clause of USSG § 4B1.2(a)(2) of the mandatory Guidelines and not the r esidual clause of the ACCA. The Seventh Circuit, the only ci rcuit to grant relief to a § 22 55 movant relying

on Johnson to challenge USSG §§ 4B1.1, 1.2 o f the mandatory Guidelines, ha s expressed the new rule from Johnson as “a right not to have his sentence dictated by

7 The narrowness of that st atement of the rule from Johnson has been called into question by Dimaya ’s application of the rule to a s tatutory context outside of the ACCA—albeit on direct review. Butwe need not define the precis e boundaries of the rule today because Mr. Pu llen’s attempt to apply Johnson to the mandatory Guidelines fails even under his more expansive statement of tha t rule.21 the unconstitutionally vague langua ge of the mandatory residual clause.” Cross , 892 F.3d at 294; see Blackstone , 903 F.3d at 1027 (identif ying quoted language from
Cross as Seventh Circuit’s stat ement of new right from Johnson ). But the Ninth Circuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a high level of generality that it runs afoul of Supreme Court te achings regarding the parameters for phrasing a new ru le for purposes of a collateral proceeding. See Blackstone , 903 F.3d at 1026 (“The Supreme C ourt has repeatedly admonishe d our court not to advance on its own i n determining what rights have been recognized by the Supreme Court under AEDPA. ”) (citations omitted). We need n ot consider whether the Seventh Circuit’s ar ticulation of the rule is so br oad as to restate existing law, rather than announcing a ne w rule, because Mr. Pullen has espoused a more narrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of the new rule now.
2. Mr. Pullen’s Statement of the Rule Mr. Pullen argues the proper st atement of the new rule from Johnson is the right not to be sentenced under an ordinary-case categorical ap proach that requires the judge to imagine both the c onduct necessary to commit the c rime and the degree of risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can be drawn from the dissent in Welch and from Dimaya . On the former, as pointed out above, the dissent in Welch identified the new rule from Johnson in a manner similar to the rule stated by Mr. Pullen. See Welch , 136 S. Ct. at 1272 (Thomas, J., dissenting) (“ Johnson ’s new constitutional rule is that a law is unconstitutionally22 vague if it ‘requires a court to picture the kind of conduct th at the crime involves in “the ordinary case,” and to judge whether that abstraction pres ents a serious potential risk,’ of some result.” (quoting Johnson , 135 S. Ct. at 2557)). With respect to the latter, Dimaya read Johnson as concluding that a residua l clause is unconstitutionally vague if it “‘requires a court to picture the kind of conduct t hat the crime involves in “the ordinary case,” and to judge whether that abstraction pres ents’ some not-wellspecified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson , 135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct regarding the proper phras ing of the new rule from Johnson , three considerations defeat his ability to rely on th e rule to proceed with a second or successive § 2255 motion challenging the mandatory Guidelines. First, central to whether Mr. Pu llen can rely on any new rule f rom Johnson is whether application of the rule to the mandatory Guidelines is “ dictated by precedent” and “apparent to all r easonable jurists” as opposed to “susceptible to debate among reasonable minds.” Russo , 902 F.3d at 883 (quotation marks omitted). 8
Neither Johnson , Welch , nor Dimaya addressed a challenge t o a provision of the Guidelines, mandatory or adviso ry. Instead, the only case to ad dress a Johnson -based challenge to the Guidelines is Beckles , which concluded the advisory Guidelines were

8 The Eighth Circuit reached this conclusion based on a trio of Supreme Court cases discussing principles governing new rules: Teague v. Lane , 489 U.S. 288, 301 (1989), Chaidez v. United States , 568 U.S. 342, 347 (2013), and Butler v. MecKellar , 494 U.S. 407, 415 (1990). See Russo v. United States , 902 F.3d 880, 883 (8th Cir. 2018).23 not susceptible to a void for va gueness challenge. 137 S. Ct. a t 897. And while the advisory nature of the G uidelines at issue in Beckles was undoubtedly important to the Court’s holding, the concurrence in Beckles indicated that Johnson ’s applicability to the mandatory Guidelines r emained an open question. See id. at 903 n.4 (Sotomayor, J. concurring in the judgment) (“The Court’s adhere nce to the formalistic distincti on between mandatory a nd advisory rules at least leaves open the question whether defendants sent enced to terms of imprisonment before our decision
in United States v. Booker . . . may mount vagueness a ttacks on their sentences.”). 9 If a question remains “open,” it is not dictated by precedent. See Brown , 868 F.3d at 301 (“[I]f the existence of a r ight remains an open question as a matter of Supreme Court precedent, then the Suprem e Court has not ‘recognized’ th at right.”); Raybon , 867 F.3d at 630 (“Because it is an open question, it is not a ‘right’ that ‘has been newly recognized by the Supreme C ourt’ let alone one that was ‘ made retroactively applicable to cases on collatera l review.’” (quoting 28 U.S.C. § 2255(f)(3))); see also Blackstone , 903 F.3d at 1026–27 (relying on open nature of question when affirming denial of § 2255 relief). Second, central to why the que stion remains open is that Johnson involved a federal statute, while the Guide lines, even in their mandatory form, were agency-

9 Even after Dimaya , Justice Sotomayor still belie ves the question remains open. See Brown v. United States , 139 S. Ct. 14, 15 (2018) ( Sotomayor, J., dissenting from denial of certiorari) (“Bu t for petitioners like Brown, wh o were sentenced long before Johnson , this Court has thus far left the validity of their sentences an open question. The Court’s decision to day all but ensures that the q uestion will never be answered.” (citation omitted)).24 created rules formed by the U. S. Sentencing Commission to suppl ement existing, congressionally-enacted statutory maximum and minimum sentencin g ranges. While the Guidelines established a ma ndatory range, this mandatory ra nge always fell within the statutory minimum a nd maximum affixed by Congress. See USSG § 5G1.1. Thus, regardless of any vagueness in the mandatory Gui delines, the Supreme Court might conclude the statutory scheme enacted by Co ngress placed the defendant on fair notice of the possible penalties he faced forcommitting an offense. Cf. Beckles , 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors and judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting
Batchelder , 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by the applicable statutory range, w hich establishes the permissib le bounds of the court’s sentencing discretion.”). 10 Third, where the Guidelines rep laced an open-ended sentencing s cheme under which judges could impose any se ntence within the statutory ran ge, even a somewhat vague residual clause in the Guid elines provided more guidance to sentencing judges than existed prior to the mandatory Guidelines. 11 See In re Griffin , 823 F.3d 1350,

10 By concluding that the Supreme Court might not strike the residual clause in the mandatory Guidelines as void for vagueness, we do not mean to suggest the Court will reach such a result.

11 Mr. Pullen does not identify a ny case holding that an open-end ed sentencing scheme under which a judge could impose any sentence between a properly announced statutory minimum and statutory maximum failed under the Due Process Clause and the void for vagueness doctrine.25 1354–55 (11th Cir. 201 6) (per curiam) (“Because there is no con stitutional right to sentencing only under guidelines, the limitations the Guideline s place on a judge’s discretion cannot violate a defen dant’s right to due process by reason of being vague. . . . Even vague guidelines cabin d iscretion more than no guide lines at all.”). 12 And, because the Supreme Court has already indicated in Beckles that a defendant received fair notice of the broad, but sp ecified, range of penalties he faced under the statutory scheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing judge’s discretion was more cabin ed with the residual clause in USSG § 4B1.2(a)(2) than in the absence of any Guid elines, the Court might conclude that the two concerns underlying the void fo r vagueness doctrine are not pre sent in the context of the mandatory Guidelines.

12 To be sure, the Supreme Court c ould conclude the language of U SSG § 4B1.2, within the context of the mandatory Guidelines, did no t satisfy due process and void for vagueness considera tions. Justice Sotomayor sugges ted the possibility of such a result within her concurrence in Beckles : [A] district court’s reliance on a vague Guideline [such as U.S .S.G. § 4B1.2] creates serious risk of “arbitrar y enforcement.” . . . It intro duces an unacceptable degree of arbitrarin ess into sentencing proceeding s to begin by applying a rule that is so vague that effort s to interpret it b oil down to guesswork and intuition.” 137 S. Ct. at 901 (Sotomayor, J ., concurring) (citations omitte d). The point is that the Supreme Court has not yet answere d the question. This is fatal to Mr. Pullen’s successive § 2255 motion, especia lly within in the context of a § 2255(h)(2) analysis where Mr. Pullen must identify a new rule retroactively applica ble to his claim for relief.26 In accord with the second and th ird reasons discussed above, Beckles observed that the Court has “invalidat ed two kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and third emphases added). As to the second type of laws, “‘ statutes fixing sentences’ must specify t he range of available sentences with ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson , 135 S. Ct. at 2557, then quoting United States v. Batchelder , 442 U.S. 114, 123 (1979)). But, the mandatory Guidelines were not law s or statutes; rather, they me rely operated like statutes. Thus, while the Supreme Court might one day conclude, by relying on the actual innocence gateway, 13 that the mandatory Guideline s sufficiently took the form of a law or a statute so as to expose the mandatory Guidelines to a void for vagueness challenge, such a conclusion or r ule is (1) debatable and (2) e ssential to Mr. Pullen’s ability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not yet established by the Supreme Court and, consequently, not mad e retroactively applicable by the Court. 14 This conclusion provides a suffi cient basis to preclude Mr.

13 This circuit does not recognize actual innocence in the senten cing context, except in capital sentences. See United States v. Denny , 694 F.3d 1185, 1191 (10th Cir. 2012) (“[A] defendant canno t be actually innocent of a non capital sentence[.]” (internal quotation marks omitte d)). But other circuits do perm it such arguments, see Cristin v. Brennan , 281 F.3d 404, 421–22 (3d Cir . 2002) (collecting cases), and t he Supreme Court has left open the question of whether a prisoner can rely on the actual innocence gateway to challe nge a noncapital sentence, see Dretke v. Haley , 541 U.S. 386, 393–94 (2004).

14 The Court could conclude that the mandatory Guidelines, althou gh not statutes, are subject to a void for vagueness challenge and tha t they do not satisfy due27 Pullen from proceeding on his § 2255 motion. See Blackstone , 903 F.3d at 1028;
Russo , 902 F.3d at 883.
3. Summation Mr. Pullen is not entitled to proceed on his § 2255 motion unde r his iteration of the new rule from Johnson . Accordingly, the district c ourt correctly concluded Mr. Pullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing a second or successive § 2255 mo tion. This conclusion is consis tent with the rulings of six of our seven sibling circ uits, which deny § 2255 relief because Johnson either (1) did not recognize a new right a pplicable to the mandatory S entencing Guidelines for purposes of the requirement i n 28 U.S.C. § 2255(f)(3) or (2 ) did not create a new rule applicable to the mandatory S entencing Guidelines for purp oses of meeting the requirements in 28 U.S.C. § 2255(h)(2). See Blackstone , 903 F.3d at 1028 (denying § 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory Guidelines); Russo , 902 F.3d at 883–84 (same); Green , 898 F.3d at 321–33 (same);
Brown , 868 F.3d at 301–02 (same); Raybon , 867 F.3d at 629–31 (same); In re

process concerns because they permitted judges to prescribe sen tencing ranges arbitrarily. See Beckles , 137 S. Ct. at 894-95 (explaini ng that a vague law which permits judges to prescribe sente ncing ranges invites arbitrary enforcement). But, to date, the Supreme Court has notannounced a new rule retroactiv ely applicable to the mandatory Guidelines. Nor, as appa rent from the denials of cert iorari, has the Supreme Court seen fit to take up the issue of Johnson ’s impact on the mandatory Guidelines. And unless and until it does, Mr. Pullen cannot est ablish that his successive § 2255 motion actually r elies on a new rule for purp oses of authorization under § 2255(h)(2).28 Griffin , 823 F.3d at 1354–56 (d enying authorization under § 2255(h)(2) because Johnson did not announce new rule app licable to the mandatory Guidelin es). 15 But
see Cross , 892 F.3d at 294. 16 It is also consistent with the Supreme Court’s recent denials of certiorari on a seri es of petitions seeking reversal of the aforementioned circuit decisions. And while denia ls of certiorari often do not shed light on the merits

15 Although the Fourth, Sixth and El eventh Circuits reached theirdecisions before Dimaya , the Sixth and Eleventh Circuits continue to rely respectively upon Raybon and Griffin after Dimaya

. See Robinson v. United States , 736 F. App’x 599, 599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court decision and remained law of the circuit); Foxx v. United States , 736 F. App’x 253, 254 (11th Cir. 2018) (“[ W]e cannot deviate from In re Griffin given the current state of the law, and this forecl oses Foxx’s appeal.”); Lewis v. United States , 733 F. App’x 501, 503 (11th Cir . 2018) (concluding In re Griffin “remains binding”). It does not appear the Fourth Circuit has revisited the issue since Dimaya

. Separately, we observe that while In re Griffin involved the denial of authorization for failing to mak e a prima facie showing under § 2255(h)(2) and 28 U.S.C. § 2244(b)(3), 823 F.3d 13 50, 1351, 1354–56 (11th Cir. 20 16) (per curiam), Mr. Pullen already passed through the prima facie gate when we granted authorization. Thus, rather th an relying on § 2244(b)(3) when d ismissing Mr. Pullen’s § 2255 motion, the distr ict court correctly relied on § 2244(b)(4) to conclude Mr. Pullen did not satisfy the re quirements set forth by § 2255 (h)(2).

16 Mr. Pullen argues the First Circuit, in Moore v. United States , 871 F.3d 72 (1st Cir. 2017), reached the sam e result as the S eventh Circuit

. Moore , however, involved a preliminary, or prim a facie, determination under 28 U.S.C. § 2244(b)(3) that a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines and not the conclusion that the s econd or successive § 2255 mot ion was actually premised on a new rule of const itutional law made retroactive b y the Supreme Court for purposes of the 28 U.S.C . § 2244(b)(4) analysis. See Moore , 871 F.3d at 80 (“Having explained the focused ye t tentative nature of the exam ination called for in evaluating a request to file a s econd or successive § 2255 moti on, we turn next to Moore’s motion.”). Thus, eve n if other language in Moore suggests the panel of the First Circuit would have reached the same conclusion had it bee n conducting a § 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent as to the § 2244(b)(4) question.29 of an issue, see United States v. Carver , 260 U.S. 482, 490 (1923), these denials of certiorari (1) were over a two justice dissent, which expressly states the question is open and not likely to ever be r esolved; and (2) the individual defendants are now precluded from filing new and timely § 2255 motions based on Johnson should the Supreme Court later adopt the pos ition advanced in their certio rari petitions. 17
IV. CONCLUSION We conclude Johnson did not create a new rule of c onstitutional law applicable to the mandatory Guide lines because (1) Beckles suggests the void for vagueness doctrine’s applicability to the mandatory G uidelines remains an open quest ion; (2) the Guidelines, even in their mandatory form, wer e not statutes; and (3) even avague provision of the Guidelines provided more guidanc e to defendants and sentencing judges than did the congressionally-enacted statutory minimum and maximum sentences that provided defendants sufficient due proce ss. Although the Supreme Court m ight reject all of these considerations and invalidate th e residual clause of the mandat ory Guidelines, it has not yet done so. Because Johnson did not create a new rule of c onstitutional law applicable to

17 In concluding that, regardles s of how the new rule from Johnson is phrased, Johnson does not create a new rule of constitutional law relative to t he mandatory Guidelines, we find it unnece ssary to decide whether Greer ’s statement of the rule from Johnson is too narrow in light of Dimaya . Rather, it is clear Greer ’s holding, that Johnson does not create a new rule of constitutional law applicable to the mandatory Guidelines, remains good law.30 the mandatory Guidelines, the dis trict court properly denied re lief and dismissed Mr. Pullen’s § 2255 motio n pursuant to § 2255 (h)(2). Accordingly, w e AFFIRM

. 18

18 We DENY Mr. Pullen’s motion to file a p ro se opening brief and his mot ion to file a pro se supplemental brief.