PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-7056

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

THILO BROWN,

 Defendant – Appellant. 

Appeal from the United States District Court for the District of South Carolina at 

Charleston. Patrick Michael Duffy, Senior U. S. District Court Judge. (2:02-cr-00519-

PMD-1; 2:16-cv-268-PMD)

Argued: May 11, 2017 Decided: August 21, 2017

Before GREGORY, Chief Judge, and DUNCAN and DIAZ, Circuit Judges

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Diaz 

joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Alicia Vachira Penn, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Charleston, South Carolina, for Appellant. William Camden Lewis, OFFICE OF THE 

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF:

Beth Drake, United States Attorney, Columbia, South Carolina, Marshall Taylor Austin, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Charleston, South Carolina, for Appellee.
2

DUNCAN, Circuit Judge:

Petitioner-Appellant Thilo Brown appeals the district court’s order dismissing his 

28 U.S.C. § 2255 motion. This court granted Petitioner a certificate of appealability on 

the issue of whether, in light of Johnson v. United States, 135 S. Ct. 2551 (2015), his 

prior South Carolina conviction for assault on a police officer while resisting arrest, 

S.C. Code Ann. § 16-9-320(B) (“Resisting-Arrest Assault Conviction”), qualifies as a 

predicate “crime of violence” for career-offender status under the Sentencing Guidelines, 

U.S.S.G. §§ 4B1.1(a), 4B1.2(a) (2002). For the reasons that follow, we affirm the district 

court.

Petitioner can succeed only if, inter alia, a Supreme Court precedent has rendered 

his motion timely by recognizing a new right entitling him to relief. 28 U.S.C. 

§ 2255(f)(3). As the dissent acknowledges, neither Johnson, nor Beckles, nor any other 

Supreme Court case has recognized the specific right on which Brown seeks to rely.

1 See 

Johnson, 135 S. Ct. at 2555–56, 2560, 2563; Beckles, 137 S. Ct. 886, 895 (2017); see 

also id. at 903 n.4 (Sotomayor, J., concurring). With respect for its view, we are 

constrained by the Antiterrorism and Effective Death Penalty Act (AEDPA) 

jurisprudence from extrapolating beyond the Supreme Court’s holding to apply what we 

view as its “reasoning and principles” to different facts under a different statute or 

 1 The dissent specifically recognizes that Beckles leaves open the question of 

whether Johnson applies under a mandatory-guidelines regime and quotes from Justice 

Sotomayor’s concurring opinion in Beckles to that effect. See infra at 22. If a question is 

expressly left open, then the right, by definition, has not been recognized. 
3

sentencing regime. We are thus compelled to affirm the dismissal of Petitioner’s motion 

as untimely under 28 U.S.C. § 2255(f)(3).

I.

A.

On March 19, 2003, Petitioner pleaded guilty to possession with intent to 

distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 

(b)(1)(A)(iii) (“Drug Offense”), and to carrying a firearm during the commission of a 

drug crime in violation of 18 U.S.C. § 924(c) (“Firearm Offense”). J.A. 83. 

At sentencing, the district court designated Petitioner a career offender under 

U.S.S.G. § 4B1.1(a) (2002) because he had a prior felony conviction that qualified as a 

predicate controlled-substance offense,

2 and his prior Resisting-Arrest Assault

Conviction qualified as a predicate crime-of-violence offense. J.A. 90, 91; 

U.S.S.G. § 4B1.2(a) (2002). Because the district court sentenced Petitioner on July 14,

2003, before United States v. Booker, 543 U.S. 220 (2005), Petitioner’s career-offender 

status resulted in a mandatory guideline range of 262–327 months for the Drug Offense 

and a minimum consecutive sentence of sixty months for the Firearm Offense.3

 J.A. 89–

 2 Petitioner stipulated in his plea agreement that he had a prior felony drug 

conviction for trafficking crack cocaine, and agreed not to contest the government’s filing 

of an information, rendering him subject to a mandatory minimum sentence of 20 years 

(240 months) for his Drug Offense. 21 U.S.C. § 851.

3 The Firearm Offense carried a mandatory minimum penalty of five years to life 

imprisonment, to run consecutively to any other term of imprisonment imposed. 

18 U.S.C. § 924(c); J.A. 79–80, 90. 
4

102. Petitioner received a total sentence of 322 months--the low end of the guidelines’ 

range for both offenses and well within the range of permissible statutory sentences that 

the district court could have imposed. J.A. 8–9. The district court entered judgment 

against Petitioner on July 21, 2003. J.A. 8–9. Petitioner did not appeal.

B.

On June 26, 2015--after Petitioner’s conviction became final for purposes of direct 

review, but before Petitioner filed any 28 U.S.C. § 2255 motion--the Supreme Court 

decided Johnson. 135 S. Ct. at 2555. In Johnson, the Court held that ACCA’s residual 

clause was void for vagueness. Id. at 2560, 2563.4

On January 28, 2016, Petitioner filed a 28 U.S.C. § 2255 motion to vacate his 

sentence. Relying on Johnson, Petitioner argued that his prior Resisting-Arrest Assault 

Conviction could no longer serve as a predicate crime of violence under 

U.S.S.G. § 4B1.2(a) (2002), and therefore, his earlier designation as a career offender

was unjustified. J.A. 19–23, 45–54. Petitioner’s argument rested on the premise that 

Johnson’s holding invalidated not only ACCA’s residual clause, but also like-worded 

residual clauses in the Sentencing Guidelines. On June 17, 2016, the district court 

dismissed Petitioner’s motion with prejudice and declined to issue a certificate of 

 4 ACCA imposes a statutorily mandated 15-year minimum prison term for a 

person who violates 18 U.S.C. § 922(g) and has three previous convictions that qualify as 

either a “serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e)(1). Prior to 

Johnson, a crime qualified as a “violent felony” under ACCA’s residual clause if it 

“otherwise involve[d] conduct that presents a serious potential risk of physical injury to 

another.” Id. § 924(e)(2)(B)(ii). 
5

appealability. J.A. 37–44. Petitioner appealed and moved for a certificate of 

appealability on August 5, 2016. On December 7, 2016, this court granted Petitioner a 

certificate of appealability on the issue of whether his prior Resisting-Arrest Assault 

Conviction qualifies as a predicate offense for career-offender status in light of Johnson. 5

 

II.

On appeal, Petitioner relies on 28 U.S.C. § 2255(f)(3) to render his motion timely. 

Under § 2255(f)(3), a petitioner can file a § 2255 motion relying on a right newly 

recognized by the Supreme Court provided that, inter alia, he files within a one-year 

window running from “the date on which the right asserted was initially recognized by 

the Supreme Court.” Id. § 2255(f)(3). 

Petitioner acknowledges, as he must, that the Supreme Court’s recent holding in 

Beckles, forecloses his argument that Johnson explicitly invalidated all residual clauses 

with wording similar to ACCA’s invalidated residual clause. Petitioner nevertheless 

urges this court to extrapolate a recognized right from Booker, Johnson, and Beckles, read 

together. Petitioner and the dissent maintain that we can find his asserted right in the 

 5 Although Petitioner raised other arguments for vacating his sentence before the 

district court, we only granted a certificate of appealability as to whether his prior 

Resisting-Arrest Assault Conviction qualifies as a predicate offense for career-offender

status in light of Johnson. If we were inclined to agree with Petitioner’s argument that 

his prior conviction did not qualify under the applicable residual clause, 

U.S.S.G. § 4B1.2(a)(2) (2002), we would normally have to decide whether his prior 

conviction would nevertheless qualify as a predicate career-offender conviction under the 

applicable force clause, U.S.S.G. § 4B1.2(a)(1) (2002). However, before oral argument, 

the government withdrew its argument that Petitioner’s prior Resisting-Arrest Assault

Conviction qualifies as a predicate offense for career-offender status under the applicable 

force clause. Beth Drake, Letter to the Fourth Circuit (May 8, 2017). Therefore, the 

success of Petitioner’s appeal rises and falls on his residual-clause argument.
6

principles animating these decisions even though none of them, nor any other Supreme 

Court precedent, have recognized a right to challenge the pre-Booker mandatory 

Sentencing Guidelines as void for vagueness and despite the fact that the Beckles Court

expressly declined to address the issue of whether the pre-Booker mandatory Sentencing 

Guidelines are amenable to void-for-vagueness challenges. See Beckles, 137 S. Ct. at 

895; see also id. at 903 n.4 (Sotomayor, J., concurring).

We review de novo the question presented on appeal. See United States v. DiazIbarra, 522 F.3d 343, 347 (4th Cir. 2008); United States v. Thompson, 421 F.3d 278, 

280–81 (4th Cir. 2005). As explained below, because of the procedural posture we are 

compelled to affirm.

A.

In accordance with Congress’s intent to limit the number of collateral-review 

cases before federal courts and to respect the finality of convictions, the Antiterrorism 

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified 

as amended in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.C.) (“AEDPA”), 

provides for a one-year statute of limitations for § 2255 motions. 28 U.S.C. § 2255(f). 

Normally, for a motion to be timely under § 2255(f), a petitioner must file for relief 

within one year of the date that his judgment of conviction becomes final. 

See id. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 525 (2003). However, under 

§ 2255(f)(3), courts will consider a petitioner’s motion timely if (1) he relies on a right 

recognized by the Supreme Court after his judgment became final, (2) he files a motion 

within one year from “the date on which the right asserted was initially recognized by the 
7

Supreme Court,” 28 U.S.C. § 2255(f)(3), and (3) the Supreme Court or this court has 

made the right retroactively applicable. See Dodd v. United States, 545 U.S. 353, 358–59 

(2005); United States v. Mathur, 685 F.3d 396, 397–98 (4th Cir. 2012); United States v. 

Thomas, 627 F.3d 534, 536–37 (4th Cir. 2010). Although this court can render a right 

retroactively applicable, only the Supreme Court can recognize a new right under 

§ 2255(f)(3). See Dodd, 545 U.S. at 357–59; Thomas, 627 F.3d at 536–37; 

see also Mathur, 685 F.3d at 399–401. Consequently, to find Petitioner’s motion timely, 

we must conclude that it relies on a right “recognized” in Johnson or another more recent 

Supreme Court case. See Dodd, 545 U.S. at 357–59; see also Mathur, 685 F.3d at 399–

401. “As with any question of statutory interpretation, our analysis begins with the plain 

language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). 

To “recognize” something is (1) “to acknowledge [it] formally” or 

(2) “to acknowledge or take notice of [it] in some definite way.” Recognize, MerriamWebster Tenth Collegiate Dictionary 976 (1996); see also Tapia v. United States, 564 

U.S. 319, 327 (2011). Thus, a Supreme Court case has “recognized” an asserted right 

within the meaning of § 2255(f)(3) if it has formally acknowledged that right in a definite 

way. Cf. Williams v. Taylor, 529 U.S. 362, 412 (2000) (interpreting the phrase “clearly 

established Federal law, as determined by the Supreme Court” within another provision 

of AEDPA to mean “the holdings, as opposed to the dicta” of Supreme Court precedent). 

Correspondingly, if the existence of a right remains an open question as a matter of 

Supreme Court precedent, then the Supreme Court has not “recognized” that right. 

Cf. Tyler v. Cain, 533 U.S. 656, 662–64 (2001) (interpreting the word “made” within 
8

another provision of AEDPA--“made retroactive to cases on collateral review by the 

Supreme Court”--to mean “held”).

B.

We now turn to the right Petitioner claims the Supreme Court recognized in 

Johnson. Petitioner’s motion relies on a claimed due-process right to have his guidelines’ 

range calculated without reference to an allegedly vague Sentencing Guidelines’ 

provision, despite the fact that the district court imposed his sentence within permissible 

statutory limits. Regrettably for Petitioner, the Supreme Court did not recognize such a 

right in Johnson. While Johnson did announce a retroactively applicable right, 

Welch v. United States, 136 S. Ct. 1257, 1265 (2016), Johnson dealt only with the 

residual clause of ACCA--a federal enhancement statute, Johnson, 135 S. Ct. at 2555–56. 

Johnson did not discuss the mandatory Sentencing Guidelines’ residual clause at issue 

here or residual clauses in other versions of the Sentencing Guidelines. See id. at 2555–

56. 

C.

Petitioner urges this court to cobble together a right by combining Johnson’s 

reasoning with that of two other Supreme Court cases, Booker and Beckles. Petitioner’s 

three-case extrapolation begins with the unobjectionable premise that Booker recognized

a constitutional distinction between mandatory Sentencing Guidelines and advisory 

Sentencing Guidelines. Booker, 543 U.S. at 245. Moving on from Booker, Petitioner 

argues that the mandatory Sentencing Guidelines cabined a sentencing judge’s discretion 

in a manner that raises the same concerns animating the Supreme Court’s decision in 
9

Johnson: denying fair notice to defendants and inviting arbitrary enforcement by judges. 

Johnson, 135 S. Ct. at 2557. To prove this point, Petitioner points to several related cases 

in the lower courts, which he claims serve as evidence that “the mandatory Guidelines 

look and act like the ACCA.” Reply Br. at 18. Finally, Petitioner points out that the 

Beckles Court carefully limited its holding to the advisory Sentencing Guidelines, thus, in 

his view, leaving open the question of whether defendants could challenge sentences 

imposed under the mandatory Sentencing Guidelines as void for vagueness. 

Beckles, 137 S. Ct. at 895; see also id. at 903 n.4 (Sotomayor, J., concurring). 

Yet Petitioner’s argument is self-defeating. If the Supreme Court left open the 

question of whether Petitioner’s asserted right exists, the Supreme Court has not 

“recognized” that right. See supra Part II.A. 

While the residual clause at issue here mirrors the residual clause at issue in 

Johnson, the Beckles Court made clear that the right announced in Johnson did not 

automatically apply to all similarly worded residual clauses. See Beckles, 137 S. Ct. at

890; see also United States v. Mack, 855 F.3d 581, 585 (4th Cir. 2017). Beckles 

specifically held that Johnson failed to invalidate the advisory Sentencing Guidelines’ 

former definition of “crime of violence,” U.S.S.G. § 4B1.2(a)(2) (2006), which was 

“identically worded” to ACCA’s residual clause. Beckles, 137 S. Ct. at 890. As

Petitioner himself points out, the Beckles Court carefully crafted its holding to avoid 

deciding whether the logic of Johnson applied outside the context of ACCA. See id.; see 

also Mack, 855 F.3d at 585. Hence, Beckles confirms that the Supreme Court has yet to 
10

recognize a broad right invalidating all residual clauses as void for vagueness simply 

because they exhibit wording similar to ACCA’s residual clause.

6 

In short, Petitioner’s cited cases do not recognize, and the dissent does not point 

to, any right helpful to him.7

 Johnson only recognized that ACCA’s residual clause was 

unconstitutionally vague, 135 S. Ct. at 2557; it did not touch upon the residual clause at 

issue here. Likewise, Beckles only recognized that the advisory Sentencing Guidelines 

are not amenable to vagueness challenges. 137 S. Ct. at 895. In a future case, the 

Supreme Court may agree with an argument similar to Petitioner’s that because the 

challenged residual clause looks like ACCA and operates like ACCA, it is void for 

vagueness like ACCA. See id. at 892 n.2 (noting former circuit split). But Beckles 

demonstrates that quacking like ACCA is not enough to bring a challenge within the 

purview of the right recognized by Johnson. Accordingly, at least for purposes of 

 6 Prior to Beckles, the majority of circuits held that Johnson’s holding extended to 

like-worded residual clauses in versions of the advisory Sentencing Guidelines, 

see Beckles, 137 S. Ct. at 892 n.2 (surveying cases), but Beckles ultimately reached the

contrary conclusion, id. at 890 (“This Court held in Johnson . . . that the identically 

worded residual clause in the [ACCA] was unconstitutionally vague. Petitioner contends 

that the [advisory] Guidelines’ residual clause is also void for vagueness. Because we 

hold that the advisory Guidelines are not subject to vagueness challenges under the Due 

Process Clause, we reject petitioner’s argument.”).

7 Petitioner’s motion would also be untimely to the extent it relies on the general 

principles of due-process jurisprudence noted in Johnson, principles recognized long 

before Johnson which provide too broad a standard to constitute a right or rule in other 

similar contexts. Cf. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (noting, for 

qualified-immunity purposes, that requiring a clearly established rule “depends 

substantially upon the level of generality at which the relevant ‘legal rule’ is to be 

identified,” and explaining that the right to “due process of law” is too abstract to provide 

a workable standard in every case); Chaidez v. United States, 568 U.S. 342, 347–48 

(2013).
11

collateral review, we must wait for the Supreme Court to recognize the right urged by 

Petitioner. See Dodd, 545 U.S. at 359. We hold that Petitioner raises an untimely motion 

in light of § 2255(f)(3)’s plain language, the narrow nature of Johnson’s binding holding, 

and Beckles’s indication that the position advanced by Petitioner remains an open 

question in the Supreme Court.

D.

We note as well that our recent decision in In re Hubbard, 825 F.3d 225 (4th Cir. 

2016), is not to the contrary. The relief sought by the Petitioner contrasts sharply with 

the relief this court granted to the movant in Hubbard. Here, unlike in Hubbard, we 

consider Petitioner’s arguments after authorizing this appeal through a certificate of 

appealability and in a post-Beckles world. To grant Petitioner’s requested relief we must 

confront the timeliness issue: whether he can rely on Johnson as a rule “recognized by 

the Supreme Court.” 28 U.S.C. § 2255(f)(3).

The threshold certification inquiry in Hubbard concerned whether the movant 

could make a prima facie showing that his application relied 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. § 2255(h)(2); see also id. § 2244(b)(3)(C); 

In re Hubbard, 825 F.3d at 228; In re Vassell, 751 F.3d 267, 270–71 (4th Cir. 2014). In 

this circuit, making such a prima facie showing requires the movant to meet a relatively 

low bar, In re Hubbard, 825 F.3d at 231; and this court does not need to reach “the 

question of the successive motion’s timeliness at the gatekeeping stage,” In re Vassell, 

751 F.3d at 271. 
12

Consistent with what is required of this court at the 28 U.S.C. § 2255(h)(2) stage, 

we did not consider the timeliness of the movant’s underlying merits argument. Instead 

we assumed, prior to the Supreme Court’s resolution of Beckles, that disagreement 

among the federal courts of appeals on Johnson’s application to other residual clauses 

was “likely . . . enough to establish that [the petitioner] has made ‘a sufficient showing of 

possible merit to warrant a fuller exploration by the district court,’ . . . confirmed by [this 

court’s] own ‘glance’ at the government’s merits arguments.” In re Hubbard, 825 F.3d at 

232 (internal citation omitted).

Today’s narrow holding, like the holding of Hubbard, is compelled by this case’s 

procedural posture. Had this case come before us on direct appeal, we might have had 

the inferential license necessary to credit Petitioner’s interpretations of the negative 

implications found in Booker, Johnson, and Beckles. Unfortunately for Petitioner, we 

must consider his argument through the narrow lens that § 2255(f) affords this court on

collateral review.

III.

We are constrained from reading between the lines of Booker, Johnson, and 

Beckles to create a right that the Supreme Court has yet to recognize. We are compelled 

to affirm because only the Supreme Court can recognize the right which would render

Petitioner’s motion timely under § 2255(f)(3).

AFFIRMED
13

GREGORY, Chief Judge, dissenting:

To take advantage of 28 U.S.C. § 2255(f)(3), a petitioner must first assert a right 

newly recognized by the Supreme Court. The majority reads this to mean that a 

petitioner must assert the right as expressed in the Supreme Court’s narrow holding 

newly recognizing that right, and where the four corners of that holding do not 

encompass the precise facts underlying a petitioner’s claim, § 2255(f)(3) is not satisfied. 

But § 2255(f)(3) contains no such requirement, and in my view, a newly recognized right 

is more sensibly read to include the reasoning and principles that explain it. And where a 

petitioner asserts that right, with all its contours and complexities, I would find that he or 

she satisfies § 2255(f)(3).

In Johnson, the Supreme Court recognized a defendant’s right not to have his or 

her sentence fixed by the application of the categorical approach to an imprecise and 

indeterminate sentencing provision, and it struck down the ACCA’s residual clause as 

inconsistent with that newly recognized right. Because Brown asserts that same right, I 

would find his petition timely under § 2255(f)(3), even though his challenge is to the 

residual clause under the mandatory Sentencing Guidelines, rather than the ACCA. I 

would further find that Johnson compels the conclusion that the residual clause under the 

mandatory Guidelines is unconstitutionally vague, and I would grant Brown’s petition 

and remand for resentencing. Accordingly, I must respectfully dissent.
14

I.

On March 19, 2003, Brown pleaded guilty to possession with intent to distribute 

fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 

(b)(1)(A)(iii), and to carrying a firearm during the commission of a drug crime, in 

violation of 18 U.S.C. § 924(c). J.A. 11. The presentence investigation report (“PSR”) 

indicated that Brown was eligible for the career-offender enhancement under the 

mandatory Sentencing Guidelines, based on his prior felony convictions for drug 

trafficking and assault on a police officer while resisting arrest. J.A. 90. The PSR 

assigned Brown an offense level of 34, J.A. 90, and a criminal history category of VI, 

J.A. 96. According to the PSR, Brown’s mandatory Guidelines range was therefore 262–

327 months in prison for the drug charge, and 60 months to life for the firearm charge, to 

run consecutively to any other term of imprisonment. J.A. 102.

The district court adopted the PSR’s factual findings and Guideline applications, 

and on July 14, 2003, sentenced Brown to 322 months in prison. Brown’s sentence 

consisted of 262 months for the drug charge and 60 months for the firearm charge. J.A. 

8–9. Brown did not appeal his sentence.

On January 28, 2016—more than twelve years later—Brown filed a 28 U.S.C. 

§ 2255 motion to vacate his sentence. J.A. 19–23. He argued that the Supreme Court’s 

June 26, 2015 decision in Johnson v. United States, 135 S. Ct. 2551 (2015), rendered his 

motion timely because he was asserting Johnson’s newly recognized right—made 

retroactively applicable on collateral appeal—within one year of the Court’s recognition 

of that right. See 28 U.S.C. § 2255(f)(3). In Johnson, the Court held that the ACCA’s 
15

residual clause was unconstitutionally vague. Brown argued that the identically worded 

provision in § 4B1.2(a)(2) of the mandatory Sentencing Guidelines was therefore also 

void for vagueness. J.A. 20. And, he contended, because his assault conviction did not 

constitute a crime of violence under the Guidelines’ force clause and was not an 

enumerated offense—the only other avenues for categorizing a prior offense as a crime of 

violence—his conviction did not qualify as a crime of violence under the mandatory 

Guidelines. J.A. 20–22.1

 He further argued that his felony conviction for drug 

trafficking was not a controlled substance offense. J.A. 22. Brown argued that in light of 

these errors, he should not have been designated a career offender under the mandatory 

Sentencing Guidelines and was entitled to resentencing.

The district court did not address whether Brown’s argument regarding the assault 

claim was timely in light of Johnson, but instead went directly to the merits of the claim. 

J.A. 38. The court concluded that because Brown’s assault conviction qualified as a 

crime of violence under the Guidelines’ force clause, it did not need to reach the question 

 1 Under the mandatory Sentencing Guidelines, § 4B1.2(a) reads in full:

The term “crime of violence” means any offense under federal or state law, 

punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical 

force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential risk of 

physical injury to another.

U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S. Sentencing Comm’n 20002) 

(emphasis added). Section 4B1.2(a)(1) is the force clause, and § 4B1.2(a)(2) consists of 

the enumerated-offense and residual clauses, with the residual clause denoted above in 

italics.
16

of whether the conviction was a crime of violence under the Guidelines’ residual 

clause—or whether the residual clause was still valid in light of Johnson. J.A. 40. And, 

the court found, Brown’s argument that his drug trafficking conviction was not a 

controlled substance offense was “not based at all on Johnson,” but rather was “simply an 

unrelated claim that this Court erred when it sentenced Brown in 2003.” J.A. 42. The 

court stated that Brown could not “use Johnson to revive an untimely, unrelated claim,” 

and it rejected his drug trafficking claim without discussing the merits. J.A. 42. The 

court dismissed Brown’s § 2255 motion with prejudice and declined to grant a certificate 

of appealability (“COA”). J.A. 43. Brown timely appealed and moved for a COA.

This Court subsequently granted Brown a COA “on the issue of whether assault 

on a police officer while resisting arrest under South Carolina law qualifies as a predicate 

offense for career offender status in light of Johnson v. United States.” Order, United 

States v. Thilo Brown, No. 16-7056 (4th Cir. Dec. 7, 2016), ECF No. 14.2

II.

As the majority recognizes, a threshold issue for this Court is whether Brown’s 

§ 2255 petition is timely. Under 28 U.S.C. § 2255(f)(1), a petitioner has one year from 

the date that his or her judgment of conviction becomes final to attack the corresponding 

sentence. Because Brown’s judgment of conviction has been final for more than a 

decade, to bring a § 2255 petition, he must satisfy one of § 2255(f)’s other conditions for 

 2 Because we granted a COA only as to Brown’s argument regarding his assault 

conviction, the question of whether his South Carolina drug trafficking conviction 

constitutes a controlled substance offense under the Guidelines is not before this Court.
17

restarting the limitations period. Here, he relies on § 2255(f)(3), which permits a § 2255 

petition that “assert[s] . . . a right that has been newly recognized by the Supreme Court 

and made retroactively applicable to cases on collateral review” within one year of the 

Supreme Court’s recognition of the right. 28 U.S.C. § 2255(f)(3); see also Dodd v. 

United States, 545 U.S. 353, 357–58 (2005) (describing § 2255(f)(3) as requiring that 

“(1) the right asserted by the applicant was initially recognized by this Court; (2) this 

Court newly recognized the right; and (3) a court must have made the right retroactively 

applicable to cases on collateral review” (internal quotation marks omitted)). Brown 

argues that his § 2255 petition is timely because he filed it within one year of the 

Supreme Court’s decision in Johnson, which the Court subsequently held retroactively 

applicable to cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). 

I agree, and unlike the majority, I would find Brown’s petition timely.

It is well-settled in this Circuit that the Johnson Court recognized a new 

constitutional rule, and that the Welch Court made that rule retroactively applicable to 

cases on collateral review. In re Hubbard, 825 F.3d 225, 228 (4th Cir. 2016) (“Johnson

announced a new rule of constitutional law that the Supreme Court made retroactive 

. . . .”).3

 And it is undisputed that Brown filed his § 2255 motion within one year of 

 3 Although the Welch Court describes Johnson as newly recognizing a “rule,” 

rather than a “right,” courts, including this one, use the terms interchangeably. See, e.g., 

United States v. Powell, 691 F.3d 554 (4th Cir. 2012) (calling it “well settled” that the 

analysis in Teague v. Lane, 489 U.S. 288 (1989), which discusses what constitutes a 

newly recognized rule, governs whether a new right is retroactively applicable under 

§ 2255(f)(3)). And courts have described Johnson as recognizing a new “right” for 

purposes of § 2255(f)(3). See, e.g., Holt v. United States, 843 F.3d 720, 723 (7th Cir. 

(Continued)
18

Johnson and Welch. The only question for this Court’s timeliness inquiry, then, is 

whether Brown is asserting that particular right in his § 2255 petition. Or, said another 

way, the question is whether Johnson newly recognized a right that would permit Brown 

to collaterally attack, through § 2255(f)(3), the constitutionality of his sentence, which 

was enhanced under the residual clause in the mandatory Sentencing Guidelines. A 

logical starting point for the analysis is therefore the contours of the right that the 

Supreme Court newly recognized in Johnson.

A.

In Johnson, the Supreme Court held that the ACCA’s residual clause was 

unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause. 

Johnson, 135 S. Ct. at 2555–57. It based its holding on the principle that “the 

Government violates [due process] by taking away someone’s life, liberty, or property 

under a criminal law so vague that it fails to give ordinary people fair notice of the 

conduct it punishes, or so standardless that it invites arbitrary enforcement,” id. at 2556, 

finding that this principle applies to “statutes fixing sentences” just as it applies to 

“statutes defining elements of crimes,” id. at 2557.

The ACCA’s residual clause defined a violent felony as “any crime punishable by 

imprisonment for a term exceeding one year” that “otherwise involves conduct that 

presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). 

 

2016) (stating that in Welch, the Court “newly recognized the right [in Johnson] to be 

retroactive” (emphasis added)). Therefore, I use “rule” and “right” interchangeably.
19

To determine whether a particular crime qualified as a violent felony under the ACCA’s 

residual clause, courts had to use the “categorical approach” to “picture the kind of 

conduct that the crime involves in ‘the ordinary case,’ and to judge whether that 

abstraction present[ed] a serious potential risk of physical injury.” Johnson, 135 S. Ct. at 

2557 (quoting James v. United States, 550 U.S. 192, 208 (2007), overruled by Johnson, 

135 S. Ct. 2551). According to the Johnson Court, this inquiry “le[ft] grave uncertainty 

about how to estimate the risk posed by a crime” and “tie[d] the judicial assessment of 

risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory 

elements.” Id. “The residual clause,” the Court concluded, “offer[ed] no reliable way to 

choose . . . what [an] ‘ordinary’ [non-enumerated crime] involves.” Even more, said the 

Court, “the residual clause le[ft] uncertainty about how much risk it takes for a crime to 

qualify as a violent felony” by requiring courts “to apply an imprecise ‘serious potential 

risk’ standard . . . to a judge-imagined abstraction.” Id. at 2558. In light of this, the 

Court held that “the indeterminacy of the wide-ranging inquiry required by the residual 

clause both denies fair notice to defendants and invites arbitrary enforcement by judges,” 

and thus, “[i]ncreasing a defendant’s sentence under the clause denies due process of 

law.” Id. at 2557.

In Welch, the Court held that Johnson is a substantive decision that is retroactively 

applicable to cases on collateral review. 136 S. Ct. at 1265. Discussing Johnson’s 

holding, the Welch Court explained that “[t]he vagueness of the residual clause rests in 

large part on its operation under the categorical approach, . . . because applying [the 

residual clause’s serious potential risk] standard under the categorical approach required 
20

courts to assess the hypothetical risk posed by an abstract generic version of the offense.” 

Id. at 1262. And because Johnson struck down the ACCA’s residual clause as void for 

vagueness, the clause “can no longer mandate or authorize any sentence,” explained the 

Welch Court. Id. at 1265. “Johnson establishes, in other words, that ‘even the use of 

impeccable factfinding procedures could not legitimate’ a sentence based on that clause.” 

Id. (quoting United States v. U.S. Coin & Currency, 401 U.S. 715, 724 (1971)). In sum, 

Johnson and Welch established that a defendant’s due process rights are violated when a 

court, using the categorical approach, fixes that defendant’s sentence based on a statute 

that fails to provide proper notice of what constitutes criminal conduct and requires 

courts to apply imprecise and indeterminate standards. See id; see also Johnson, 135 S. 

Ct. at 2557.

Subsequently, in Beckles v. United States, 137 S. Ct. 886 (2017), the Supreme 

Court sharpened the focus on this newly recognized right. There, the defendant filed a 

§ 2255 motion to vacate his sentence on the grounds that after Johnson, the residual 

clause in the advisory Guidelines’ definition of crime of violence was void for vagueness. 

Id. at 891.4

 The Court, relying heavily on the distinction between the advisory and 

mandatory Guidelines, held that “the advisory Guidelines are not subject to vagueness 

 4 Beckles’s § 2255 motion was timely because he brought it within one year of the 

date on which his conviction became final. See 28 U.S.C. § 2255(f)(1); see also Beckles, 

137 S. Ct. at 891; United States v. Beckles, 565 F.3d 832 (11th Cir. 2009), cert. denied, 

558 U.S. 906 (2009). Therefore, he did not need to demonstrate—nor did the Supreme 

Court need to consider—whether Johnson newly recognized a right that would allow 

Beckles to collaterally attack his advisory Guidelines sentence pursuant to 28 U.S.C. 

§ 2255(f)(3).
21

challenges under the Due Process Clause.” Id. at 890. This is because the advisory 

Guidelines “merely guide the district court’s discretion,” the Court explained, and 

“[u]nlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of 

sentences.” Id. at 892. “Rather, the Guidelines advise sentencing courts how to exercise 

their discretion within the bounds established by Congress.” Id. at 895. Accordingly, the 

Court observed, “‘[t]he due process concerns that . . . require notice in a world of 

mandatory Guidelines no longer’ apply.” Id. at 894 (alterations in original) (quoting 

Irizarry v. United States, 553 U.S. 708, 714 (2008)).

The Beckles Court thus excluded from the scope of Johnson’s rule those 

sentencing provisions that advise, but do not bind, a sentencing court. But in so doing, 

the Court did not disturb Johnson’s holding that where a vague sentencing provision 

operates to fix a defendant’s sentence under the categorical approach, it is susceptible to 

attack under the Due Process Clause. Indeed, Justice Sotomayor, concurring in the 

judgment, noted that the majority opinion “at least leaves open the question whether 

defendants sentenced . . . during the period in which the Guidelines did fix the 

permissible range of sentences . . . may mount vagueness attacks on their sentences.” Id. 

at 903 n.4 (Sotomayor, J., concurring in the judgment) (internal citations and quotation 

marks omitted).5

 Thus, the decision in Beckles, while shrinking the universe of 

 5 The majority reads Justice Sotomayor’s statement to mean that the question of 

whether the Johnson Court newly recognized a right applicable to a challenge to the 

mandatory Guidelines is still open. See Maj. Op. at 2 n.1, 6, 9. But Justice Sotomayor, in 

her concurrence, suggested only that the merits of such a challenge have not yet been 

decided. And she noted that the majority’s decision in Beckles did not foreclose such a 

(Continued)
22

sentencing provisions susceptible to attack on vagueness grounds, reinforced that a 

defendant has the due process right—as newly recognized in Johnson—not to have his 

sentence fixed by the application of the categorical approach to an imprecise and 

indeterminate sentencing provision.

With the scope of Johnson’s right in mind, I next consider whether Brown can rely 

on that right to render his § 2255 motion timely.

B.

Brown contends that because the mandatory Sentencing Guidelines’ residual 

clause is identical in text to the ACCA’s residual clause, enhancements under both 

clauses were applied using the categorical approach, and the clauses were similarly used 

to fix, rather than advise, applicable sentencing ranges, he can rely on the right newly set 

forth in Johnson to challenge his career-offender status under the mandatory Guidelines. 

I consider his arguments in turn.

First, it is undisputed that the text of the residual clause under the mandatory 

Guidelines is identical to the text of the ACCA’s residual clause. Both definitions 

include felonies that “involve[] conduct that presents a serious potential risk of physical 

injury to another.” U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. § 924(e)(2)(B)(ii). Section 4B1.2(a)(2)’s 

 

challenge. But she said nothing of timeliness under § 2255(f)(3), or whether the Court’s 

Beckles decision would in any way undermine a petitioner’s ability to bring a 

§ 2255(f)(3) petition challenging the mandatory Guidelines in light of the right newly 

recognized in Johnson.
23

text therefore supports Brown’s argument that Johnson’s newly recognized right is 

applicable to a challenge to § 4B1.2(a)(2)’s residual clause.

Second, courts applied the categorical approach to both residual clauses. Like 

courts applying the ACCA, “[i]n determining whether a prior conviction triggers a 

sentence enhancement under the Sentencing Guidelines, ‘[courts] approach the issue 

categorically, looking “only to the fact of conviction and the statutory definition of the 

prior offense.”’” United States v. Montes-Flores, 736 F.3d 357, 364 (4th Cir. 2013) 

(quoting United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013)). 

Accordingly, when courts categorized prior felony convictions as crimes of violence 

under the mandatory Guidelines’ residual clause, they had to engage in the same 

“arbitrary enforcement,” Johnson, 135 S. Ct. at 2556, as courts enhancing a sentence 

under the ACCA’s residual clause. This too supports Brown’s argument that Johnson is 

applicable to his challenge here.

Finally, like the residual clause at issue in Johnson, the mandatory Guidelines’ 

residual clause imposed fixed, rather than advisory, sentencing ranges. When Brown was 

sentenced, the Supreme Court had not yet decided United States v. Booker, 543 U.S. 220, 

245 (2005) (establishing Sentencing Guidelines as “effectively advisory”), and the 

Guidelines were still mandatory, operating like statutes to fix sentences. Before Booker, 

the Guidelines had “the force and effect of laws,” id. at 234, and were considered 

indistinguishable from state laws, id. at 233 (“[T]here is no distinction of constitutional 

significance between the Federal Sentencing Guidelines and the Washington procedures 

at issue in [Blakely v. Washington, 542 U.S. 296 (2004)].”). While judges theoretically 
24

had the ability to depart from the Guidelines’ prescribed range, “departures [were] not 

available in every case, and in fact [were] unavailable in most.” Id. at 234.6

 Instead, in 

most cases, the Guidelines took into account nearly all relevant factors for determining an 

individual’s sentence, such that “no departure [was] legally permissible” and “the judge 

[wa]s bound to impose a sentence within the Guidelines range.” Id. Like the ACCA’s 

residual clause, then, the mandatory Guidelines’ residual clause bound courts to impose 

sentences within the prescribed range.

The Court’s decision in Beckles, while foreclosing void-for-vagueness challenges 

to the residual clause under the advisory Guidelines, shows that sentencing under the 

ACCA’s residual clause and sentencing under the mandatory Guidelines’ residual clause 

was the same. Indeed, the Court’s decision in Beckles rested on the distinction between 

the mandatory and advisory Guidelines, with the advisory nature of the post-Booker 

Guidelines dictating a result different than in Johnson. The Beckles Court explained that, 

unlike the ACCA, “[t]he advisory Guidelines . . . do not implicate the twin concerns 

underlying vagueness doctrine—providing notice and preventing arbitrary enforcement.” 

Beckles, 137 S. Ct. at 894. This is because “even if a person behaves so as to avoid an 

enhanced sentence under the career-offender guideline, the sentencing court retains 

discretion to impose the enhanced sentence,” id., and the advisory Guidelines only 

 6 Similarly, when district courts fix sentences under the ACCA, they are prohibited 

from sentencing a defendant below the statutory mandatory minimum, save for the 

relatively rare cases where the government has filed a substantial assistance motion 

pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or where the defendant qualifies 

for a safety-valve reduction under 18 U.S.C. § 3553(f).
25

“advise sentencing courts how to exercise their discretion within the bounds established 

by Congress” and do not “‘establish[] minimum and maximum penalties for [any] 

crime,’” id. at 895 (quoting Mistretta v. United States, 488 U.S. 361, 396 (1989)). This is 

entirely different from the mandatory Guidelines, which “b[ou]nd judges and courts in 

the exercise of their uncontested responsibility to pass sentence in criminal cases,” 

Mistretta, 488 U.S. at 391, and “ha[d] the force and effect of laws, prescribing the 

sentences criminal defendants are to receive,” id. at 413 (Scalia, J., dissenting). The 

considerations underlining the Court’s decision in Beckles are simply not implicated here, 

where the residual clause operated just like a statute to fix Brown’s sentence. If anything, 

then, Beckles clarifies Johnson’s animating principles and affirms that Johnson’s newly 

recognized right does apply to challenges to the residual clause under the mandatory 

Guidelines. Thus, contrary to the majority’s view, Brown need not “cobble together a 

right by combining these [cases],” Maj. Op. at 8—the right he asserts stems from 

Johnson. Beckles and Booker merely reinforce that the right newly recognized in 

Johnson is indeed applicable to Brown’s claim.

Ultimately, that the residual clause at issue here is contained in the mandatory 

Sentencing Guidelines, rather than the ACCA, is a distinction without a difference for 

purposes of this Court’s timeliness inquiry. The clauses’ text is identical, and courts 

applied them using the same categorical approach and for the same ends—to fix a 

defendant’s sentence. The right newly recognized in Johnson is therefore clearly 

applicable to Brown’s claim, because the mandatory Guidelines’ residual clause presents 

the same problems of notice and arbitrary enforcement as the ACCA’s residual clause at 
26

issue in Johnson. The majority, by finding that a defendant sentenced under a nearly 

identical provision with nearly identical effects cannot assert the right newly recognized 

in Johnson, unnecessarily tethers that right to the ACCA itself, when the right clearly 

stems from the due process protections that prohibit such sentencing schemes more 

generally. This narrow view divests Johnson’s holding from the very principles on which 

it rests and thus unduly cabins Johnson’s newly recognized right.

I would find that Brown is asserting the right newly recognized in Johnson. And 

because this Court found that “the rule in Johnson is substantive with respect to its 

application to the [mandatory] Sentencing Guidelines and therefore applies 

retroactively,” Hubbard, 825 F.3d at 235, I would find that Brown satisfies all of 

§ 2255(f)(3)’s requirements. I would thus find his petition timely.

III.

Lastly, I would find in favor of Brown on the merits of his claim. As previously 

discussed, first, the text of § 4B1.2(a)(2)’s residual clause is identical to the text of the 

ACCA’s residual clause, which the Supreme Court held unconstitutionally vague in 

Johnson. Second, courts enhanced sentences under § 4B1.2(a)(2)’s residual clause using 

the categorical approach, just as they did when enhancing sentences under the ACCA’s 

residual clause. And third, like the ACCA, the mandatory Guidelines fixed minimum and 

maximum sentences and bound courts to sentence within particular ranges. This case 

diverges from Johnson only because Brown’s sentence was enhanced under the 

mandatory Guidelines, rather than the ACCA, but I can discern no principled reason that 
27

such a distinction should dictate an outcome different than in Johnson, particularly where 

the concerns outlined in Beckles are not implicated.

As the Court recognized in Johnson, defendants have a due process right not to 

have their sentences enhanced by the application of the categorical approach to an 

imprecise and indeterminate sentencing provision. 135 S. Ct. at 2558. And as the Court 

made clear in Beckles, when such sentencing provisions set a fixed, rather than advisory, 

sentence under the categorical approach, they are void for vagueness. See Beckles, 137 S. 

Ct. at 892. Here, the district court applied the categorical approach to § 4B1.2(a)(2)’s 

residual clause, which fixed Brown’s sentencing range—precisely what the Johnson 

Court said runs afoul of the Due Process Clause. These cases therefore compel the 

conclusion that under the mandatory Guidelines, § 4B1.2(a)(2)’s residual clause is 

unconstitutionally vague and cannot be the basis for enhancing Brown’s sentence.

For all of these reasons, I would grant Brown’s § 2255 motion and remand for 

resentencing.