[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 13913 Non

- Argument Calendar

________________________ D.C. Docket No s . 9:16

- cv - 81110

- DTKH , 9:05

- cr - 80193

- DTKH

- 1

ROBERTO DELGADO, Petitioner

- Appellant,

versus
UNITED STATES OF AMERICA, Respondent

- Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (June 5, 2018) Before MARTIN , JILL PRYOR, and ANDERSON , Circuit Judg es. PER CURIAM:

Case: 17-13913 Date Filed: 06/05/2018 Page: 1 of 42 Roberto Delgado, a federal prisoner represented by counsel, appeals the district court’s dismissal of his second 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence for lack of jurisdiction. On appeal, Delgado argues that his sentence, which was enhanced under the career offender guideline in U.S.S.G. § 4B1.1, was unlawful following the Supreme Court’s decision in Johnson v. United States , 135 S. Ct. 2551 (2015). We review de novo the district court’s dismissal of a § 2255 motion as second or successive. McIver v. United States , 307 F.3d 1327, 1329 (11th Cir. 2002). A federal prisoner who wishes to file a second or successive motion to vacate, set aside, or correct sentence is required to move the court of appeals for an order authorizing the district court to consider such a motion. See 28 U.S.C. § 2255(h). Without such authorization, the district court lacks jurisdiction to consider a second or successive § 2255 motion to vacate. United States v. Holt , 417 F.3 d 1172, 1175 (11th Cir. 2005). Under the 2005 version of the Sentencing Guidelines , a defendant was a career offender subject to an enhanced sentence where the instant offense was a felony that was either a crime of violence or a controlled substance offense and the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). The Sentencing Guidelines

Case: 17-13913 Date Filed: 06/05/2018 Page: 2 of 43 defined “crime of violence” as any offense under federal or state law, punishable by 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

. Id. § 4B1.2 (a) (emphasis added). The first clause was referred to as the “elements” clause, the beginning of the second clause as the “enumerated crimes” clause, and the latter portion as the “residual” clause. A lthough Johnson involved an Armed Career Criminal Act (“ACCA”) challenge, not a guideline career offender dispute, the Sentencing Commission amended this guideline effective August 2016 to strike the “residual clause.” Id . § 4B1.2(a)(2), Amendment 798. On June 26, 2015, the Supreme Court held in Johnson th at the “residual” clause of the ACCA was unconstitutionally vague. Johnson , 135 S. Ct. at 2563. Later, the Supreme Court held that Johnson was retroactively applicable to cases on collateral review. Welch v. United States , 136 S. Ct. 1257 , 1268 (2016). Further, t he Supreme Court held in Beckles v. United States , 13 7 S. Ct. 886 (2017) that the advisory Sentencing Guidelines were not subject to a vagueness challenge under the Due Process Clause, and that the “residual” clause formerly in the career offender guideline, U.S.S.G. § 4B1.2(a), was not void for vagueness. Id

. at 895.

Case: 17-13913 Date Filed: 06/05/2018 Page: 3 of 44 Here, D elgado ’s sentence was enhanced under the career offender guideline, not under the ACCA. Moreover, he did not raise any of his claims in an authorized second or successive § 2255 motion, and thus, the district court properly dismissed his second § 2255 mot ion for lack of jurisdiction. McIver , 307 F.3d at 1329. As this was Delgado’s second § 2255 motion , h e was required to receive our authorization to file it. See 28 U.S.C. § 2255(h). However, we denied his application to file the successive § 2255 motio n in 2016. As such, under § 2255(h), the district court lacked jurisdiction to review the present motion. Moreover, to the extent that Delgado argues that his total sentence is unlawful after Johnson because the “residual” clause in the former version o f U.S.S.G. § 4B1.2(a)

— which was identical to the ACCA’s residual clause

— is void for vagueness, his argument is without merit. As the Supreme Court found in Beckles , the advisory Guidelines are not subject to void

- for

- vagueness challenges, and the holding in Johnson did not extend to the “residual” clause formerly in U.S.S.G. § 4B1.2(a)

. Beckles , 137 S. Ct. at 895. Accordingly, as Delgado did not have authorization to file his second § 2255 motion, the district court properly dismissed it for lack of jurisdiction, and we affirm. AFFIRMED. Case: 17-13913 Date Filed: 06/05/2018 Page: 4 of 4