### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 3476
T RACY D. S HIPMAN , P etitioner

- Appell ant ,

v.
U NITED S TATES OF A MERICA , Respondent

- Appell ee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Western Division

. No. 1 6 C 50016

— Philip G. Reinhard , Judge

.

____________________
A RGUED F EBRUARY 22 , 201 9

— D ECIDED J UNE 5, 2019

____________________

Before R IPPLE , M ANION , and B RENNAN , Circuit Judges

. B RENNAN , Circuit Judge

. Tracy Shipman appeals the district court’s denial of his petition for collateral postconviction relief under 28 U.S.C. § 2255. When Shipman pleaded guilty
to drug charges in 2003 , the district court sentenced him under the then

- mandatory Sentencing Guidelines. Because Shipman had three prior “crime of violence” felony convictions , the district court sentenced him as a “career offender.”2 No. 17

- 3476

U.S.S.G. § 4B1.1 (2002)

. 1 The career

- offender provision of the Guidelines defined a “crime of violence” in U.S.S.G. § 4B1.2(a)(1)

– (2)

. T wo passages in that guideline are at issue here : the enumerat ed

- offenses clause , and the residual clause. On appeal, Shipman argues the G uidelin es’ residual clause is unconstitutionally vague . We agree , a conclusion that follows directly from our decision in Cross v. United States , 892 F.3d 288 (7th Cir. 2018)

. Indeed, Cross abrogated the rationale supporting the dis trict court’s dismissal of Shipman’s petition for collateral relief. With that issue resolved , the case hits a snag: the record does not conclusively show whether Shipman was sentenced under the residual clause or the enumerated

- o ffenses clause. We therefore remand this case for fur ther proceedings on the merits of Shipman’s § 2255 petition

. I. B ACKGROUND
Because Cross was decided nearly seven months after the district court issued its dismissal order , w e summarize the facts and proceedings in this case only to the extent necessary to address the issues presented on appeal

. 2Shipman pleaded guilty in 2003 to conspiring to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846 (2000)

. His presentenc e report used the 2002 Sentencing Guideline s Manual , whi ch at that time required

1 Unless otherwise noted, all references to the G uidelines are to the 2002 United States Sentencing Guidelines Manual.

2 The district court issued its dismissal order on November 20, 2017. Shipman filed a timely notice of appeal on December 5, 2017. Cross was decided on June 7, 2018 , while Shipman’s appe al was pending.No . 17

- 3476 3

district courts to increase the offense level of a “career offender

. ” U.S.S.G. § 4B1.1

. A defendant qualif ie s as a career offender if : (1) the defendant was at least 18 at the time of the instant offense of conviction ; (2) the offense of conviction is a “crime of violence or controlled substance offense” ; and (3) the defendant has “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” § 4B1.1

. When Shipman was sentenc ed in 2003 , the Guidelines’

career

- offender provisions defined a “ crime of violence ” (in relevant part) as: [A] ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that

— (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents aserious potential risk of physical injury to another

. U.S.S.G. § 4B1.2(a)(2) (emphasis added). Subsection (2) contains both the “enumera ted

- offenses clause” (non

- italicized text) and the “residual clause” ( italicized text )

. The p robation officer calculated a Guidelines sentencing range of 262 to 327 months’ imprisonment , based in part on Shipman’s designation as a career offender. Shipman’ s age ( 35 years ) and this drug charge supplied the first and second predicates for the career

- offender designation

. His t h ree prior Arkansas convictions for “residential burglary” in 1986 and 1987 satisfied the third predicate

. Shipman did not object to th e report’s career

- offender designation or suggested4 No. 17

- 3476

sentencing enhancement

. T he district court adopted the presentenc e report’s findings and calculations , classified Shipman as a career offender, and sentenced him to 262 months ’ imprisonme nt

. Neither the presentenc e report nor the district court explained whether Shipman’s career

- offender designation rested on the enumerated

- offenses clause or the residual clause.
A succession of Supreme Court decisions followed Shipman’s sentencing

. First, the Supreme Court rendered the Guidelines “effectively advisory” in United States v. Booker , 543 U.S. 220 , 245 (2005)

. A bout a decade later the Supreme Court struck down the Armed Career Criminal Act ’ s (ACCA) residual clause as unconstitutionally vague. Johnson v. United States , 135 S. Ct. 2551, 2257, 2563 (2015)

. 3 Then , in Welch v. United States , 13 6 S. Ct. 1257, 1265 (2016) , the Supreme Court held that Johnson applied retroactively on collateral review. Within one year of the Supreme Court’s decision in Johnson , Shipman petitioned for relief under § 2255

. At this point, a word on § 2255 procedure is helpful. Section 2255 (f)(1) establishes a “1

- year period of limitation ” within which a federal prisoner may file a motion to vacate, set aside, or correct a sentence. In most cases, the one

- year period begins to run when the judgment becomes final. Shipman invo kes § 2255(f)(3) , which sets a one

- year filing deadline for postco nvic tion relief starting from “ the date on which the right asserted was initially recognized by the

3 S ee J ohnson , 135 S. Ct. at 2564 (citing 18 U.S.C. § 924(e)(2)(B)(ii) (2012)(ACCA residual clause) (counting as a violent felony any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to anot her”)). The ACCA’s residual clause used identical language as employed in U

. S

. S

. G

. § 4B1.2(a)(2)

.No . 17

- 3476 5

Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review .” Shipman argue d the Supreme Court’s decision in Johnson recognized the right he assert ed in his petition : to be resentenced because a vague residual clause fixed his term of imprisonment

. Shipman ’s petition , however, was not limited to

a residual clause challenge

— he cla imed his drug sentence

was improperly enhanced under the residual clause and enumerated

- offenses clause of the Guidelines’ career

- offender provisions

. Shipman ’ s residual clause challenge wa s straightforward:
a sentence under the Guidelines’ residual clause is unconstitutional because that clause is identical to the ACCA ’ s residual clause stricken in Johnson

. Shipman ’ s second claim

— that his burglary convictions do not qualify as predicate offenses under the Guidelines’ enumerated

- offense s cla use

— wa s more in tricate, relying on a chorus of additional Supreme Co urt decisions

. Those arguments made, Shipman ’ s case was put on hold while multiple cases worked their w ay through the courts, among them Beckles v. United States , 137 S. Ct. 886 (2017) . In Beckles , the Supreme Court held Johnson does not apply to sentences enhanced under post

- Booker advisory Guideline s

. Id. at 895.
After Beckles , the di strict court lifted the stay and signaled its intent to deny Shipman’s petition

. T he court observed th at “following Beckles , there appears to be no legal basis” for Shipman’ s void

- for

- vagueness challenge under Johnson , but it offered Shipman an opportunity to respond. Shipman argued6 No. 17

- 3476

Beckles applied only to prisoners sentenced under the advisory G uidelines (post

- Booker ) , not the mandatory G uidelines (pre

- Booker )

. Shipman failed to persuade the district court, wh ich denied Shipman ’s petition as untimely

. Th at court ruled a defendant may rely on § 2255(f)(3) for timeliness purposes only “ if the defendant’s entitlement to relief

... is so evident that it can no longer be considered an ‘ open question. ’ ” In the district court’s view, after Beckles it remained an open question whether Johnson ’s reasoning extends to the pre

- Booker mandatory G uidelines

. 4 From that premise, t he district court concluded Johnson did not commence a one

- year limitation period , making Shipman’s petition untimely under § 2255(f)(1)

. In concluding the petition w as time

- barred , the district court did not reach the merits of Shipma n’s claims. Although the district court dismissed Shipman’s petition as untimely, it granted him a certificate of appeal ability on the issue.
I I. D ISCUSSION
We review the district court’s d enial of Shipman’s § 2255 petition de novo. D’Antoni v. United States , 916 F.3d 658, 662 (7th Cir. 2019). Because Shipman filed his petition more than one year after his judgment became final, he must show the Supreme Court has “recognized” a new right to obtain

4 See also Beckles , 137 S. Ct. at 903 n.4 (Soto mayor , J., concurring in judgment) (observing that Beckles ’ holding leaves open the question whether pre

- Booke r Guidelines can be challenged for vagueness under due process principles ).No . 17

- 3476 7

postconviction relief

. § 2255(f) (1), (3)

. Shi pman again points to Johnson , and justifiably so. While Shipman’s appeal was pending , this court decided Cross , which held : “Under Johnson , the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre

- Booker defendants.” 892 F.3d at 291. A petition challenging a career

- offender enhancement under the mandatory G uidelines’ residual clause is timely under § 2255(f)(3) if it was filed within one year of Johnson

. Id . at 294. Because Shipman met that deadline , his petition w as not untimely

. W e next assess whether we can resolve th is case on the merits

. A prisoner is entitled to a hear ing on a § 2255 claim

“ [u] nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief

... . ” § 2255(b). In other words, Shipman gets a hearing unless the record before us conclusively establishes he is not entitled to relief. F irst , we address Shipman’s residual clause challenge, and then turn to his challenge of a sentencing enhancement under the enumerated

- offense s clause

. Shipman contends that , after Johnson and Cross , his Arkansas burglary convictions no longer fit under the Guidelines’ residual clause. The government objects , arguing the district court classif ied Shipman’s burglary convictions as crimes of violence under the enumerated

- offenses clause, not the residual clause. E ven if classified under the residual clause , the government asserts Shipman failed to raise a void

- for

- vagueness challenge when sentenc ed in 2003 , and so procedurally defaulted on this claim

. We start with the government’s procedural default objection

.8 No. 17

- 3476

In Cross , we held petitioners sentenced under the Guidelines’ residual clause (in its mandatory form ) can demonstrate the requisite cause and prejudice to excuse procedural def ault

. Cross , 892 F.3d at 294

– 96. Thus, if Shipman’s burglary convictions were classified under the residual clause, the government’s procedural default objec tion cannot stand under Cros s

. As for Shipman ’s claim , Johnson and Cross are of no help
to him unless he was sentenced under the residual clause. Section 2255(f)(3) does not require Shipman to prove at the outset that Johnson applies to his situation. Cross , 892 F.3d at 2 93

– 94 (holding a n alternative interpretation of § 2255(f)(3) “improperly reads a merits analysis into the limitations period”). That said, neither Johnson nor Cross cleared a path to challenge

ever y sentence under the mandatory career

- offender G uidelines

. See Sotelo v. United States , No. 16

- 4144, 2019 WL 1950314, at *6 (7th Cir. May 2, 2019)

. Shipman must still “claim the b enefit of a right that the Supreme Court has recently recognized.” Cross , 892 F.3d at 294

. “ Under Johnson , a person has a right not to have his sentence dictated by the unconstitutionally vague language of the mandatory residual clause. ” Id

. So Shipman must assert precisely that right for Johnson and Cross to apply.
I n any event , we cannot make that determination because the district court ne ver reached the issue. A t Shipman’s sentencing, t he district court made no mention whether the burglary convictions rest ed on the enumerated

- offenses clause or the residual clause. Shipman’s presentenc e report is similarly u navailing . Although the report concludes Shipman is a career offender under § 4B1. 1, the report neither cites § 4B1.2(a)(2) nor explains which career

- offender provisionNo . 17

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was applied

. Without knowing which provision the district
court relied on to classify Shipman as a career offender , we cannot assess the merits of Shipman’s claim under Johnson and Cross

. Shipman’s second claim

— that his Arkansas burglary convictions do not qualify under Guidelines’ enumerated

- offenses clause

— presents more detailed factual and legal questions. His argument takes aim at t he Arkansas burglary statute in effect when he was convicted in 1986 and 198 7, arguing it does not qualify for federal sentencing enhancements

. A state crime may qualify as a pr edicate conviction for federal sentencing purposes “only if the elements of the statecrime mirror, or are narrower than, the elements of the generic crime.” United States v. Elder , 900 F.3d 491, 501 (7th Cir. 2018) (citation omitted). When Shipman was sen tenced, the enumerated

- offenses clause listed “burglary of a dwelling” as one of several offenses constituting a crime of violence under the Guidelines’ career

- offender provision s

. § 4B1.2(a)(2)

. The Supreme Court defines “generic burglary” as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime

. ” Taylor v. United States , 495 U.S. 575, 598 (1990) . T he Arkansas burglary statute , however, included vehicles as “occupiable structures.” See Julian v. State , 298 Ark. 302, 303 (1989) (citing Ark. Code Ann. § 5

- 39

- 101 (1987)) . B ecause the Arkansas burglary statute included vehicles, Shipman argues it was not generic and therefore does not qualify as a crime of violence. 5

5 Shipman cites a series of Supreme Court decisions to support this proposition: United States v. Stitt , 139 S.Ct. 399 (2018) (addressing the scope10 No. 17

- 3476

The government responds that all viable bases for Shipman to attack a career

- offender designation under the enumerated

- offenses clause were available at sentencing and within the one

- year limitations period of § 2255(f)(1). The government also argues there has been no change in the la w since then to justify Shipman ’s reliance on § 2255(f)(3). But in this case, without an explanation of the career

- offender designation , i t is unclear how Shipman could object to that categorization. Although t h is appeal has narrowed th e issues , t he record does not “conclusively show” that Shipman “is entitled to no relief” on his claims , so r emand is warranted for further finding s on th ese question s

. 28 U.S.C. § 2255(b)

. Given the state of the record, w e express no opinion on the merits of Shipman’s claims , reserving that for the district court to evaluate and decide in the first instance.
I II. C ONCLUSION
Because our decision in Cross negates the underpinnings of the district court’s dismissal, we V ACATE the district court’s order dismissing Shipman’s petition and R EMAND the case to the district court for proceedings consistent with this opinion.

of generic burglary); Mathis v. United States , 136 S. Ct. 2243, 2251 (2016) ( “[A] state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. ” ); see id. at 2250, 2257 (concluding that defendant’s prior burglary convictions cannot gi ve rise to ACCA’s sentence enhancement because the elements of Iowa's burglary law, which includes entries into vehicles, are broader than those of generic burglary, which is limited to unlawful entry into a “building or other structure”); Taylor , 495 U.S. at 598 (defining “generic burglary”).