NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-1897

_____________

UNITED STATES OF AMERICA,

v.

RICHARD ALLEN WOLFE,

Appellant

____________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 3:99-cr-00256-001)

District Judge: Hon. Malachy E. Mannion

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

April 4, 2019

Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District

Judge+.

(Filed April 29, 2019)

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OPINION

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+ The Honorable Mitchell S. Goldberg, United States District Judge of the United 

States District Court for the Eastern District of Pennsylvania, sitting by designation.

 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

CHAGARES, Circuit Judge.

Defendant Richard Allen Wolfe challenges the dismissal of his 28 U.S.C. § 2255 

motion. He argues that Johnson v. United States, 135 S. Ct. 2551 (2015), renders the 

residual clause of the mandatory United States Sentencing Guidelines’ career offender 

provision — pursuant to which he was sentenced — unconstitutionally vague. This 

argument is untimely under United States v. Green, 898 F.3d 315 (3d Cir. 2018), cert. 

denied, No. 18-8435, 2019 WL 1243704 (U.S. Apr. 15, 2019), and we will affirm the 

District Court. 

I.

We write principally for the parties and therefore recite only those facts necessary 

to our decision. Wolfe was found guilty of bank robbery with a dangerous weapon, 18 

U.S.C. § 2113(d), in 1999 and sentenced in 2000. He was found to be a career offender 

under United States Sentencing Guideline (the “Guidelines” or “U.S.S.G.”) § 4B1.2(a)

and sentenced to 262 months of imprisonment and five years of supervised release. 

When Wolfe was sentenced, the Guidelines were mandatory.1 See Green, 898 F.3d at 

320. 

On direct appeal, we affirmed Wolfe’s conviction, United States v. Wolfe, 245 

F.3d 257 (3d Cir. 2001), and the Supreme Court denied his petition for writ of certiorari,

Wolfe v. United States, 534 U.S. 880 (2001).

 

1

In 2005, the Supreme Court excised “the provision of the federal sentencing 

statute that ma[de] the Guidelines mandatory,” which rendered them “effectively 

advisory.” United States v. Booker, 543 U.S. 220, 245 (2005). 
3

In June 2016, Wolfe moved under 28 U.S.C. § 2255 to vacate and correct his 

sentence based on Johnson, 135 S. Ct. at 2557, which established that the residual clause 

of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Because, at 

the time of Wolfe’s sentencing, U.S.S.G. § 4B1.2(a)’s residual clause contained language 

identical to ACCA’s residual clause,2 he asserted that, per Johnson, the former was also 

unconstitutional. The District Court dismissed Wolfe’s motion as untimely but granted 

him a certificate of appealability. Wolfe timely appealed to this Court. 

II.

The District Court’s jurisdiction was based on 28 U.S.C. § 2255, and we have 

jurisdiction under 28 U.S.C. § 2253(a) and (c). We review de novo the District Court’s 

conclusions of law and review the court’s findings of fact for clear error. United States v. 

Travillion, 759 F.3d 281, 289 (3d Cir. 2014). 

III.

Wolfe’s appeal raises the question whether the ruling in Johnson applies to the 

formerly mandatory Guidelines: specifically, the residual clause of § 4B1.2(a). This 

Court recently determined that a motion challenging the residual clause of the mandatory 

Guidelines based on Johnson is untimely. See Green, 898 F.3d at 321–23. Wolfe asks 

 

2 See Johnson, 135 S. Ct. at 2555–56 (“The [ACCA] defines ‘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.” (quoting 18 U.S.C. § 924(e)(2)(B)); U.S.S.G. § 4B1.2(a) (1998) (“The term 

‘crime of violence’ means any offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, that . . . otherwise involves conduct that 

presents a serious potential risk of physical injury to another.”) (emphasis added). 
4

this Court to “revisit its holding in Green and allow [him] to proceed on his motion to 

correct sentence.” Wolfe Br. 12.

That we cannot do. See 3d Cir. I.O.P. 9.1 (“It is the tradition of this court that the 

holding of a panel in a precedential opinion is binding on subsequent panels. Thus, no 

subsequent panel overrules the holding in a precedential opinion of a previous panel. 

Court en banc consideration is required to do so.”); see also Reilly v. City of Harrisburg, 

858 F.3d 173, 177 (3d Cir. 2017) (explaining that where a prior panel’s precedential 

opinion has not been “overruled by a decision of this Court en banc,” a subsequent panel 

is left with no “discretion to rule otherwise absent a contrary ruling by the Supreme 

Court”). As Green has not been overruled by this Court en banc, or overruled or rejected 

by the Supreme Court, it binds this panel. 

Thus, pursuant to Green, we will affirm the District Court’s dismissal of Wolfe’s 

motion as untimely. A defendant may file a 28 U.S.C. § 2255 motion within a year of a 

series of dates, of which the most pertinent to this appeal are “the date on which the 

judgment of conviction becomes final” and “the date on which the right asserted was 

initially recognized by the Supreme Court, if that right has been newly recognized by the 

Supreme Court and made retroactively applicable to cases on collateral review.” 28 

U.S.C. § 2255(f)(1), (3). Wolfe argued before the District Court and this Court that his 

motion, filed nearly fifteen years after the Supreme Court’s October 1, 2001 denial of his 

petition for writ of certiorari, was timely under 28 U.S.C. § 2255(f)(3), as it was filed

within a year of Johnson. Because “Johnson did not recognize a right to bring a 

vagueness challenge to the mandatory Sentencing Guidelines,” Wolfe “cannot rely on 28 
5

U.S.C. § 2255(f)(3) to restart his applicable statute of limitations period,” rendering his 

motion untimely. Green, 898 F.3d at 321. 

IV.

For the aforementioned reasons, we will affirm the District Court’s dismissal of 

Wolfe’s motion under 28 U.S.C. § 2255 as untimely.