IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10328

In re: DEQUINTAN ARNICK,

Movant

Motion for an order authorizing

the United States District Court for the

Northern District of Texas, Dallas to consider

a successive 28 U.S.C. § 2255 motion

Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Dequintan Arnick, federal prisoner # 39501-177, moves for authorization 

to file a successive 28 U.S.C. § 2255 motion. He may file a successive motion 

if he makes a prima facie showing that his motion “contain[s]” either “newly 

discovered evidence that . . . would be sufficient to establish by clear and 

convincing evidence that no reasonable factfinder would have found the 

movant guilty,” or “a new rule of constitutional law, made retroactive to cases 

on collateral review by the Supreme Court, that was previously unavailable.” 

§ 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 897–98 (5th Cir. 

2001). Arnick relies on the “new rule” prong of the statute.

 

* The opinions in this case have been circulated to all active judges on the court. The 

following members of the court agree that successive 28 U.S.C. § 2255 motions seeking relief 

under Johnson from the application of U.S.S.G. § 4B1.2(a)(2) should be denied: Judges Davis, 

Jones, Smith, Clement, Owen, Southwick, Haynes, Higginson, and Costa. 

United States Court of Appeals

Fifth Circuit

FILED

June 17, 2016

Lyle W. Cayce

Clerk

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Arnick’s sentence was based in part on Section 2K2.1(a)(1) of the 

Sentencing Guidelines, under which one of his prior convictions was deemed a 

“crime of violence” pursuant to the “residual clause” of Guidelines Section 

4B1.2(a)(2), which defines a “crime of violence” for purposes of Section

2K2.1(a)(1). United States v. Arnick, 418 F. App’x 334, 334 (5th Cir. 2011); see

§ 2K2.1 cmt. n.1. The Supreme Court has held that the residual clause of the 

Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally 

vague. Johnson v. United States, 135 S. Ct. 2551, 2555–57, 2563 (2015). 

Arnick seeks application of Johnson to the identically worded residual clause 

of Section 4B1.2(a)(2).

Johnson announced a new rule of constitutional law that has been made 

retroactive by the Supreme Court to cases on collateral review. Welch v. United 

States, 136 S. Ct. 1257, 1264–65 (2016). However, Johnson did not address 

Section 4B1.2(a)(2) of the Guidelines. See Johnson, 135 S. Ct. at 2555–57. Nor 

has the Supreme Court held that a Guidelines enhancement that increases the 

Guidelines range implicates the same due process concerns as a statute that 

increases a statutory penalty. See United States v. Pearson, 910 F.2d 221, 223 

(5th Cir. 1990); see also United States v. Wilson, 622 F. App’x 393, 405 n.51 

(5th Cir. 2015), cert. denied, 136 S. Ct. 992 (2016). 

We note that even in direct appeals, rather than collateral review as 

presented here, federal courts of appeals disagree on whether Johnson applies 

to the Guidelines, demonstrating that the Supreme Court has not decided the

question. Compare Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015), 

and United States v. Maldonado, 2016 WL 229833, at *3 (2d Cir. Jan. 20, 2016), 

and United States v. Goodwin, 2015 WL 5167789, at *3 (10th Cir. Sept. 4, 2015) 

(applying Johnson to Section 4B1.2(a)(2)), with United States v. Matchett, 802 

F.3d 1185, 1194–95 (11th Cir. 2015) (Guidelines provisions are not subject to 

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void-for-vagueness challenges). Further, even if Johnson does implicate 

Section 4B1.2(a)(2), the Supreme Court has not addressed whether this 

arguably new rule of criminal procedure applies retroactively to cases on 

collateral review. Arnick has therefore not shown that he is entitled to 

authorization to proceed based on Johnson. 

IT IS ORDERED that Arnick’s motion for authorization is DENIED. The 

Office of the Federal Public Defender’s motion on Arnick’s behalf for the 

appointment of a Federal Public Defender is also DENIED.

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JENNIFER WALKER ELROD, Circuit Judge, dissenting.1

Dequintan Arnick seeks our permission to file a successive motion under 

28 U.S.C. § 2255(h), in which he would argue that his sentence must be vacated

in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 

2551 (2015). Johnson held that the Armed Career Criminal Act’s (ACCA) 

residual clause is unconstitutionally vague, and Arnick would ask the district 

court to extend Johnson’s holding to the identically worded provision of the 

Sentencing Guidelines that was used to determine his sentence. See U.S. 

Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S. Sentencing Comm’n 2010). 

Because I would authorize this successive § 2255 motion to proceed, I 

respectfully dissent.

Congress has tasked us with screening successive § 2255 petitions before 

they can be filed in the district court, but our review in this posture is modest: 

we ask only whether “the application makes a prima facie showing” “that the 

claim relies on 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. § 2244(b)(2)(A), (b)(3)(C); see also id. § 2255(h)(2).2 The rule announced 

in Johnson is uncontrovertibly “a new rule of constitutional law, made 

 

1 The opinions in this case have been circulated to all active judges on the court. The 

following members of the court believe that successive 28 U.S.C. § 2255 motions seeking relief 

under Johnson from the application of U.S.S.G. § 4B1.2(a)(2) should be authorized: Chief 

Judge Stewart and Judges Jolly, Dennis, Prado, Elrod, and Graves. 

2 We have held that § 2255(h) incorporates § 2244’s standards and procedures for 

filing successive habeas petitions. Reyes-Requena v. United States, 243 F.3d 893, 897–99 (5th 

Cir. 2001). With regard to motions based on new rules, § 2255(h)(2) and § 2244(b)(2)(A) 

contain a minor linguistic difference: § 2255(h)(2) requires that the movant show that his 

motion “contain[s]” the qualifying new rule, whereas § 2244(b)(2)(A) requires that the movant 

show that his claim “relies on” the new rule. Nevertheless, the two provisions codify 

“identical” legal standards, In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005), and we have used 

language in the two provisions interchangeably, including evaluating successive § 2255 

motions using the “relies on a new rule” formulation from § 2244(b)(2)(A), e.g., In re Williams, 

806 F.3d 322, 324 (5th Cir. 2015); In re Jackson, 776 F.3d 292, 293 (5th Cir. 2015).

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retroactive to cases on collateral review by the Supreme Court, that was 

previously unavailable.” See Welch v. United States, 136 S. Ct. 1257, 1268 

(2016). Accordingly, Arnick’s statutory burden reduces to only this: he must 

“make[] a prima facie showing” that his claim “relies on” the rule announced 

in Johnson. 

Arnick has met that burden. Arnick’s claim “relies on” Johnson, even if 

he would need an extension of Johnson to get relief. The statute requires that 

we ask whether the qualifying new rule substantiates the movant’s claim—not 

whether it conclusively decides his claim. In In re Sparks, for example, a 

successive § 2255 movant invoked the Supreme Court’s decision in Graham v. 

Florida, 560 U.S. 48 (2010), even though Graham addressed only juvenile nonhomicide offenders, and the movant had been convicted of “aiding and abetting 

a carjacking resulting in death.” 657 F.3d 258, 260 (5th Cir. 2011). We allowed 

Sparks’s motion to proceed, reasoning that “he might be entitled to relief under

Graham.” Sparks, 657 F.3d at 262 (emphasis added). “We express[ed] no 

opinion as to the ultimate merits of the motion,” content that “[t]he motion 

surely contain[ed]3 this nonfrivolous argument” based on Graham. Id. at 262 

n.3. A successive § 2255 movant who seeks a non-frivolous extension of a 

qualifying new rule “relies on” that new rule and should easily clear the modest 

screening process prescribed for our court. 

Three of our sister circuits have published decisions considering whether 

to authorize successive § 2255 motions that seek non-foreclosed extensions of 

Johnson, and all three have authorized the motions to proceed. See In re 

Hubbard, No. 15-276, 2016 WL 3181417, at *4 (4th Cir. June 8, 2016) 

(authorizing successive § 2255 challenge to 18 U.S.C. § 16(b), as incorporated 

 

3 Sparks’s focus on whether the motion “contained” the Graham argument was in 

reference to the language of § 2255(h)(2). 657 F.3d at 262 n.3; see supra note 2. 

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into the Sentencing Guidelines, “because it is for the district court to determine 

whether the new rule [announced in Johnson] extends to the movant’s case, 

not for this court in this proceeding”); In re Pinder, No. 16-12084-J, 2016 WL 

3081954, at *2 (11th Cir. June 1, 2016) (authorizing successive § 2255 

challenge to 18 U.S.C. § 924(c)(3)(B) because “the law is unsettled on whether 

the rule announced in Johnson invalidates [the movant’s] sentence”); In re 

Encinias, No. 16-8038, 2016 WL 1719323, at *1–2 & n.2 (10th Cir. Apr. 29, 

2016) (holding that challenge to U.S.S.G. § 4B1.2(a)(2) was “sufficiently based 

on Johnson to permit authorization under § 2255(h)(2)”). 

In reaching the contrary conclusion, the majority opinion hinges on two 

inapposite propositions: (1) the Supreme Court has not decided whether the 

rule of Johnson applies to section 4B1.2(a)(2) of the Guidelines; and (2) even if 

Johnson did hold by implication that section 4B1.2(a)(2) is unconstitutionally 

vague, the Supreme Court has not made that rule retroactive to cases on 

collateral review. These points miss the mark because the statute does not 

require that the movant’s winning rule—i.e. “section 4B1.2(a)(2) of the 

Guidelines is impermissibly vague”—must be “a new rule of constitutional law, 

made retroactive to cases on collateral review by the Supreme Court.” It 

requires only that the movant rely on such a rule, and the rule of Johnson fits 

the bill. 

The standard applied by the majority opinion is inconsistent with our 

cases evaluating successive § 2254 and § 2255 motions that invoke multiple

Supreme Court cases in support of a single claim. In those circumstances, we 

have inquired separately whether each invoked case announced a new 

constitutional rule that the Supreme Court had made retroactive. See In re 

Jackson, 776 F.3d 292, 294–96 (5th Cir. 2015); In re Elwood, 408 F.3d 211,

212–13 (5th Cir. 2005). That inquiry makes perfect sense where the movant’s 

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claim plausibly relies on any one of the invoked cases. See Jackson, 776 F.3d 

at 293 (listing four cases that the movant “relies on”). But our inquiry was 

completely extraneous if we could have asked whether the movant’s winning

rule had been made retroactive by the Supreme Court, as the majority opinion 

does here. 

Importantly, § 2255 does not require that we decide whether the 

movant’s requested extension of the new rule is meritorious, so long as it is not 

foreclosed by our precedent or otherwise frivolous. Congress has instructed us 

to determine only whether the statutory prerequisites to filing a successive 

§ 2255 motion are met as a “prima facie” matter. § 2244(b)(3)(C). Once we 

have so determined, the district court reviews the requirements anew before 

reaching the merits of the movant’s claims, § 2244(b)(4), and is free to depart 

from our prima facie determination. Brown v. Lensing, 171 F.3d 1031, 1032 & 

nn.8–9 (5th Cir. 1999). We have consequently described our review in this 

posture as “tentative” and “not dispositive” of whether the statutory

requirements are met. Id. at 1032 & n.8. Our review is a fortiori not 

dispositive of whether the invoked new rule should ultimately be extended in 

the way that the movant proposes. Sparks, 657 F.3d at 262 n.3; Hubbard, 2016 

WL 3181417, at *4. We ask only whether the movant relies on the new rule—

not whether his reliance is misplaced. 

Certainly a movant cannot invoke a new rule by reading it so expansively 

as to contradict binding precedents. See In re Kunkle, 398 F.3d 683, 685 (5th 

Cir. 2005). The movant’s requested extension also cannot be so facially 

implausible that he is not really “relying” on the new rule at all. See In re 

White, 602 F. App’x 954, 957–58 (5th Cir. 2015) (holding that movant could not 

invoke Eighth Amendment cases in support of a Sixth Amendment claim). But 

where the movant seeks a non-frivolous extension of a new rule of 

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constitutional law that the Supreme Court has made retroactive, our review 

should be complete. 

Before the full court voted on the issue, various panels had resolved at 

least sixteen requests to file successive § 2255 motions seeking to challenge 

section 4B1.2(a)(2) in light of Johnson, granting six and denying ten. See In re 

Pickett, No. 16-10577, slip op. at 6 & nn.4–5 (5th Cir. June 8, 2016) (Elrod, J., 

dissenting) (collecting cases). The extent of our internal disagreement alone 

should satisfy us that Arnick has made “a sufficient showing of possible merit 

to warrant a fuller exploration by the district court.” Reyes-Requena v. United 

States, 243 F.3d 893, 899 (5th Cir. 2001) (quoting Bennett v. United States, 119 

F.3d 468, 469 (7th Cir. 1997)). Because Arnick seeks a non-frivolous extension 

of Johnson, I would let him make his case to the district court. I therefore 

respectfully dissent. 

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