In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 17-2282 & 17-2724

DE’ANGELO A. CROSS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee,

and

CARL LEO DAVIS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeals from the United States District Court for the

Eastern District of Wisconsin.

No. 15-C-1338 — J. P. Stadtmueller, Judge, and

No. 16-C-747 — William C. Griesbach, Chief Judge.

____________________

JANUARY 10, 2018 — DECIDED JUNE 7, 2018

____________________
2 Nos. 17-2282 & 17-2724

Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and 

BUCKLO, District Judge.*

WOOD, Chief Judge. When compliance with the U.S. Sentencing Guidelines was still understood to be mandatory, district courts were required to impose an extended term of incarceration on so-called career criminals. This class of repeat 

felons was limited to those previously convicted twice for

drug crimes or crimes of violence. The latter offenses included 

any felony “involv[ing] conduct that present[ed] a serious potential risk of physical injury to another.” U.S.S.G. 

§ 4B1.2(a)(2) (1992); U.S.S.G. § 4B1.2(a)(2) (2000). We will call 

that definition of a crime of violence the “residual clause” in 

this opinion.

The Supreme Court jettisoned the mandatory nature of the 

guidelines in 2005, in its decision in United States v. Booker, 

543 U.S. 220. The Booker decision did not, however, immediately affect sentences imposed on defendants previously. 

Thus, De’Angelo Cross and Carl Davis continued to serve obligatory sentences as career offenders as required by the mandatory guidelines. Both Cross and Davis qualified for that 

designation because of the residual clause. Their present appeal challenged the constitutionality of that clause. 

Two recent developments form the backdrop for our decision: first, the Supreme Court’s holding in Johnson v. United 

States, 135 S. Ct. 2551 (2015), that the identical language in the 

Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012), is unconstitutionally vague; and second, the Court’s ruling in Beckles v. United States, 137 S. Ct. 886 (2017), that Johnson does not 

extend to the post-Booker advisory guidelines, including the 

 

* Of the Northern District of Illinois, sitting by designation. 
Nos. 17-2282 & 17-2724 3

career-offender guideline. We conclude that Beckles applies 

only to advisory guidelines, not to mandatory sentencing 

rules. Under Johnson, the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants. Cross and Davis are 

both entitled to be resentenced. 

I

Cross and Davis brought their cases to the district court 

through motions under 28 U.S.C. § 2255 for relief from their 

sentences. Each was unsuccessful before the district court and 

appealed to this court. In light of the substantial overlap in the 

issues presented, we consolidated their cases.

When the district court sentenced Cross (2000) and Davis

(1992), the then-mandatory sentencing guidelines prescribed 

an elevated sentence for those denominated career offenders. 

U.S.S.G. § 4B1.1. A defendant qualified as a career offender 

upon his third felony conviction for either a crime of violence 

or a drug offense. Id. The guidelines defined the term “crime

of violence” in three ways: an elements approach, U.S.S.G. 

§ 4B1.2(a)(1); an enumerated offense approach, id. 

§ 4B1.2(a)(2), first part; and the residual clause, id.

§ 4B1.2(a)(2), final clause. As we noted, the residual clause 

covered any offense that “involves conduct that presents a serious potential risk of physical injury to another.” Id. Both 

Cross and Davis were sentenced as career offenders on the 

basis of the residual clause, and neither objected at trial. Davis 

did not file a direct appeal. Although Cross filed a notice of 

appeal (despite generally waiving his right to appeal or to file 

for collateral relief in his plea agreement), this court dismissed 

his case as frivolous after his attorney filed a no-merit brief to 

which Cross did not respond. United States v. Cross, 
4 Nos. 17-2282 & 17-2724

24 F. App’x 576, 577 (7th Cir. 2001); see Anders v. California, 

386 U.S. 738, 744–45 (1967). 

Since Davis’s and Cross’s convictions, the Supreme Court 

has dramatically altered the federal sentencing landscape. 

First, Booker demoted the federal sentencing guidelines from 

mandatory to advisory. 543 U.S. 220. Then Johnson struck 

down the residual clause of the Armed Career Criminal Act 

(ACCA) as unconstitutionally vague, overruling contrary decisions in James v. United States, 550 U.S. 192 (2007), and Sykes 

v. United States, 564 U.S. 1 (2011), and upsetting a host of decisions from every court of appeals in the country. The residual clause of the ACCA, which imposed increased minimum 

and maximum sentences, used identical language to that employed in the guidelines. Compare 18 U.S.C. § 924(e)(2)(B) 

(2012) with U.S.S.G. § 4B1.2(a)(2) (1992 and 2000). The Court 

subsequently declared Johnson retroactive. Welch v. United 

States, 136 S. Ct. 1257 (2016). Meanwhile, the Court applied 

the ex post facto clause to bar a retrospective increase in an advisory guidelines range. Peugh v. United States, 569 U.S. 530 

(2013). Yet contrary to this circuit’s expectations, see United 

States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en banc) (declaring the residual clause in the advisory guidelines void for 

vagueness under Johnson), the Court held in Beckles that the 

void-for-vagueness doctrine has no role to play in the advisory

guidelines and upheld the use of the residual clause in that 

context, 137 S. Ct. 886. 

In light of these developments and within one year of Johnson, Cross and Davis each sought resentencing under 

28 U.S.C. § 2255. In Cross’s case, even though the judge expressed considerable sympathy for Cross’s vagueness argu-
Nos. 17-2282 & 17-2724 5

ment, he thought himself bound by this court’s refusal to entertain vagueness challenges to the mandatory guidelines in 

United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999), 

and advisory guidelines in United States v. Tichenor, 683 F.3d 

358, 364–65 (7th Cir. 2012). Notwithstanding the fact that we 

had reversed course in Hurlburt, the judge “c[ould] not conclude with certainty that Hurlburt’s abrogation of Tichenor 

[and Brierton] remain[ed effective] notwithstanding Beckles,” 

in which the Supreme Court abrogated the specific holding of 

Hurlburt. In the alternative, he held that the broad waiver of 

appellate rights in Cross’s plea agreement could not be overcome, even though the appeal waiver permitted motions 

“based on ... the sentencing court’s reliance on any constitutionally impermissible factor.” 

A different district judge handled Davis’s motion, but he 

too concluded that relief was not in order. He found that Davis’s motion was barred by the one-year limitations period in 

28 U.S.C. § 2255(f). He acknowledged that section 2255(f)(3) 

reopens the limitations period for an additional year from 

“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.” Id. § 2255(f)(3). He also recognized 

that Davis filed his petition within a year of Johnson’s issuance. Nonetheless, the judge believed that the Supreme 

Court’s invalidation of the residual clause in the ACCA did 

not carry over to the residual clause in the pre-Booker, mandatory version of the career-criminal sentencing guideline. In 

the alternative, he held that Davis qualified as a career offender under the elements clause of the guidelines. See 

U.S.S.G. § 4B1.2(a)(1) (“crime of violence” also includes any 

felony that “has as an element the use, attempted use, or 
6 Nos. 17-2282 & 17-2724

threatened use of physical force”). On that basis, he concluded that Davis was still a career offender notwithstanding 

Johnson. 

II

Because Cross’s and Davis’s appeals present legal, rather 

than factual disputes, we consider the district courts’ conclusions de novo. Delatorre v. United States, 847 F.3d 837, 843 

(7th Cir. 2017). We begin by explaining why we reject the various procedural hurdles that the government has raised as a 

bar to our reaching the merits of both these appeals. 

A

Cross and Davis each filed his section 2255 motion within 

one year of the Supreme Court’s decision in Johnson. The government nonetheless argues that their motions were untimely. Federal prisoners “claiming the right to be released 

upon the ground that the sentence was imposed in violation 

of the Constitution or laws of the United States” may ask the 

sentencing court to “vacate, set aside or correct the sentence.” 

28 U.S.C. § 2255(a). They must, however, file their motion 

within a specified time. Id. § 2255(f). The only limitation period potentially applicable to Cross’s and Davis’s cases runs 

for one year from “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.” Id.

§ 2255(f)(3). Dodd v. United States clarifies that this limitation 

period begins when the Supreme Court declares a new right, 

not when courts first acknowledge that right to be retroactive. 

545 U.S. 353, 356–60 (2005). Thus, the timeliness of Cross’s and 
Nos. 17-2282 & 17-2724 7

Davis’s motions hinges on whether the right they “assert[] 

was initially recognized by” Johnson. 28 U.S.C. § 2255(f)(3). 

The government argues that Johnson recognized the invalidity of the residual clause only vis-à-vis the ACCA. Cross

and Davis, unlike Johnson, were sentenced under the residual 

clause of the guidelines. The government concludes, therefore, that section 2255(f)(3) cannot help them, unless and until 

the Supreme Court explicitly extends the logic of Johnson to 

the pre-Booker mandatory guidelines. The Fourth and Sixth 

Circuits have both accepted this view. Raybon v. United States, 

867 F.3d 625, 629–31 (6th Cir. 2017); United States v. Brown, 868 

F.3d 297, 301–04 (4th Cir. 2017). The First Circuit has rejected 

it. Moore v. United States, 871 F.3d 72, 80–84 (1st Cir. 2017). 

The government’s approach suffers from a fundamental 

flaw. It improperly reads a merits analysis into the limitations 

period. Section 2255(f)(3) runs from “the date on which the 

right asserted was initially recognized by the Supreme Court.” 

28 U.S.C. § 2255(f)(3) (emphasis added). It does not say that 

the movant must ultimately prove that the right applies to his 

situation; he need only claim the benefit of a right that the Supreme Court has recently recognized. An alternative reading 

would require that we take the disfavored step of reading “asserted” out of the statute. See Duncan v. Walker, 533 U.S. 167, 

174 (2001) (“It is our duty ‘to give effect, if possible, to every 

clause and word of a statute.” (quoting United States v. 

Menasche, 348 U.S. 528, 538–39 (1955)). 

Here, Cross and Davis claim the right to be resentenced on 

the ground that the vague (yet mandatory) residual clause unconstitutionally fixed their terms of imprisonment. The right 

not to be sentenced under a rule of law using this vague language was recognized in Johnson. 135 S. Ct. at 2556–57 (“The 
8 Nos. 17-2282 & 17-2724

prohibition of vagueness in criminal statutes ... appl[ies] not 

only to statutes defining elements of crimes, but also to statutes fixing sentences ... . [T]he indeterminacy of the ... residual clause ... denies due process of law.”); see also Beckles, 

137 S. Ct. at 892 (“In Johnson, we applied the vagueness rule to 

a statute fixing permissible sentences. The ACCA’s residual 

clause ... fixed—in an impermissibly vague way—a higher 

range of sentences for certain defendants.”). 

We are satisfied that the requirements of section 2255(f)(3) 

are met. Under Johnson, a person has a right not to have his

sentence dictated by the unconstitutionally vague language of 

the mandatory residual clause. Davis and Cross assert precisely that right. They complied with the limitations period of 

section 2255(f)(3) by filing their motions within one year of 

Johnson. See also Vitrano v. United States, 721 F.3d 802, 807–08 

(7th Cir. 2013) (holding that the Supreme Court recognized 

the general right not to be subject to an enhanced sentence 

based on an understanding of the term “violent felony” that 

conflicted with Begay v. United States, 553 U.S. 137, 148 (2008), 

and thus holding motion under section 2255 untimely when 

it was filed more than a year after Begay was decided). 

B

The government next raised the ubiquitous specter of procedural default. Because neither Cross nor Davis challenged 

the constitutionality of the residual clause at trial or on direct 

appeal, the government argues they are barred from doing so 

now. 

As an initial matter, forfeiture and waiver can stymie an 

appellee as well as an appellant. In Cross’s case, the government waived its procedural default argument vis-à-vis Cross 
Nos. 17-2282 & 17-2724 9

by failing to assert it adequately in the district court. Attempting to make the best of a bad showing, the government admits 

that it raised procedural default only “succinctly” in a footnote. This is not enough, as we have held repeatedly. United 

States v. White, 879 F.2d 1509, 1513 (7th Cir. 1989); see also Harmon v. Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013). 

In general, habeas corpus petitioners may not raise any issue that they might have presented on direct appeal. McCoy 

v. United States, 815 F.3d 292, 295 (7th Cir. 2016). A petitioner 

may, however, overcome procedural default by showing 

cause for the default and actual prejudice, Bousley v. United 

States, 523 U.S. 614, 622 (1998), or that “failure to consider the 

defaulted claim will result in a fundamental miscarriage of 

justice,” Johnson v. Loftus, 518 F.3d 453, 455–56 (7th Cir. 2008). 

Cross and Davis have established their right to raise this claim 

by way of the “cause and prejudice” avenue. We thus have no 

need to discuss the question whether the “fundamental miscarriage of justice” approach might also support their motions.

We have no doubt that an extended prison term—which 

was imposed on both men as a result of their designation as 

career offenders—constitutes prejudice. See Glover v. United 

States, 531 U.S. 198, 203 (2001). That narrows our inquiry to 

whether they have shown cause for not objecting at trial. A 

change in the law may constitute cause for a procedural default if it creates “a claim that ‘is so novel that its legal basis is 

not reasonably available to counsel.’” Bousley, 523 U.S. at 622 

(quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). In Reed, the Court 

identified three nonexclusive situations in which an attorney 

may lack a “reasonable basis” to raise a novel claim:
10 Nos. 17-2282 & 17-2724

First, a decision of this Court may explicitly overrule 

one of our precedents. Second, a decision may “overtur[n] a longstanding and widespread practice to 

which this Court has not spoken, but which a nearunanimous body of lower court authority has expressly approved.” And, finally, a decision may “disapprov[e] a practice this Court arguably has sanctioned in prior cases.”

Reed, 468 U.S. at 17 (quoting United States v. Johnson, 457 U.S. 

537, 551 (1982)).

The government, relying on a footnote in Richardson v. 

Lemke, 745 F.3d 258, 274 n.7 (7th Cir. 2014), suggests that Reed

is no longer good law. In Richardson, we assumed the validity 

of Reed, even as we noted that in Prihoda v. 

McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990), we had questioned Reed’s continuing force after Teague v. Lane, 489 U.S. 

288 (1989). Later cases, however, put our concerns to rest. The 

Supreme Court has since relied on Reed, see Bousley, 523 U.S. 

at 622, as have we, e.g., McCoy v. United States, 815 F.3d at 295–

96 (7th Cir. 2016); McKinley v. Butler, 809 F.3d 908, 912 (7th Cir. 

2016). Moreover, Prihoda did not hold that legal change as understood by Reed could never constitute cause; rather, it said

that legal change had to qualify as retroactive under Teague 

for the petitioner to prevail. Prihoda, 910 F.2d at 1385–86. In 

other words, we thought that legal change under Teague was 

concentrically nested within legal change under Reed, rendering the latter superfluous once a claim qualified under Teague. 

Id. 

Cross and Davis could not reasonably have challenged the 

guidelines residual clause when the district court sentenced 

them in 1992 and 2000 respectively. On this point, we agree 
Nos. 17-2282 & 17-2724 11

with our sister circuits that “no one—the government, the 

judge, or the [defendant]—could reasonably have anticipated 

Johnson.” United States v. Snyder, 871 F.3d 1122, 1127 (10th Cir. 

2017) (quoting United States v. Redrick, 841 F.3d 478, 480 

(D.C. Cir. 2016)). In fact, the Johnson Court expressly overruled its own precedent, 135 S. Ct. 2563 (“Our contrary holdings in James[, 550 U.S. 192,] and Sykes[, 131 S. Ct. 2267,] are 

overruled.”), and so satisfied the first criterion of Reed. Although Johnson involved the ACCA rather than the career-offender guidelines, the language it evaluated was nearly identical to that in the career-offender guidelines. We 

acknowledge that the cases overruled by Johnson were not decided until 2007 and 2011—after the petitioners’ sentencing—

and thus could not themselves have influenced petitioners’ 

failure to object at trial. Nonetheless, when the Supreme 

Court reverses course, the change generally indicates an abrupt shift in law. The alternative would be a case of waffling, 

where the overruled cases themselves rejected prior precedent and the later case merely restored a status quo ante. That 

is not our situation. 

Johnson represented the type of abrupt shift with which 

Reed was concerned. Until Johnson, the Supreme Court had 

been engaged in a painful effort to make sense of the residual 

clause. In James, it took the position that the validity of the residual clause was so clear that it could summarily reject Justice Scalia’s contrary view in a footnote. That footnote provided no argument, noted that the constitutional issue was 

not even “pressed by James or his amici,” and took comfort 

from the broad use of “[s]imilar formulations” throughout the 

statute books. James, 550 U.S. at 210 n.6. Eight years later, the 

Court made a U-turn and tossed out the ACCA residual 

clause as unconstitutionally vague. We join the Tenth Circuit 
12 Nos. 17-2282 & 17-2724

in excusing, under Reed’s first category, the petitioners’ failure 

to challenge the residual clause prior to Johnson. Snyder, 

871 F.3d at 1125, 1127. 

The second and third scenarios identified by Reed present 

even more compelling grounds to excuse Cross’s and Davis’s 

procedural defaults. Johnson abrogated a substantial body of 

circuit court precedent upholding the residual clause against 

vagueness challenges. E.g., Brierton, 165 F.3d at 1138–39; 

United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United 

States v. Argo, 925 F.2d 1133, 1134–35 (9th Cir. 1991). Although 

most of these decisions postdate Davis’s sentencing (though 

not Cross’s), no court ever came close to striking down the 

residual clause before 1992 or even suggested that it would 

entertain such a challenge. Finally, the Supreme Court had 

implicitly “sanctioned” the residual clause by interpreting it 

as if it were determinate. Stinson v. United States, 508 U.S. 36 

(1993); Taylor v. United States, 495 U.S. 575 (1990). Thus, the 

parties’ inability to anticipate Johnson excuses their procedural default. 

III

A

The government has also raised particular objections in 

each case. We begin with Davis’s appeal. The government 

suggests that Davis’s predicate conviction for robbery, to 

which the residual clause applied, also fell afoul of the elements clause of the guidelines. Thus, it says, regardless of the 

validity of the residual clause, the district court properly classified and sentenced him as a career offender. That argument 

may work in some cases, but it does not suffice here. Although 
Nos. 17-2282 & 17-2724 13

both parties acknowledge that Davis’s robbery conviction satisfied the elements clause as understood at the time of his sentencing, Curtis Johnson v. United States, 559 U.S. 133 (2010), has 

since held that an offense must entail a greater degree of force 

to trigger that clause. (For the sake of clarity, we adopt the 

parties’ practice of referring to Curtis Darnell Johnson v. United 

States, 559 U.S. 133, as Curtis Johnson; we will continue to refer 

to United States v. Samuel James Johnson, 135 S. Ct. 2551 (2015),

as Johnson.). Davis’s conviction cannot satisfy the heightened 

requirement of Curtis Johnson. 

Davis’s earlier conviction was for simple robbery. The 

guidelines designate a felony as a crime of violence if it “has 

as an element the use, attempted use, or threatened use of 

physical force against the person of another.” U.S.S.G. 

§ 4B1.2(1)(i). Interpreting the identical clause of the ACCA, 

Curtis Johnson held that “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or 

injury to another person.” 559 U.S. 133, 140 (2010). It further 

determined that Florida’s crime of simple battery did not 

meet this threshold. Id. at 145. A Florida statute defined simple battery to include “[a]ctually and intentionally touch[ing] 

or strik[ing] another person against the will of the other.” Id. 

at 136 (quoting FLA. STAT. § 784.03(1)(a)(1)). In determining 

whether a violation of the act triggered the elements clause, 

the Court was “bound by the Florida Supreme Court’s interpretation” that “the element of ‘actually and intentionally 

touching’ ... [was] satisfied by any intentional physical contact, ‘no matter how slight,’” id. at 138 (quoting State v. Hearns,

961 So. 2d 211, 218 (Fla. 2007)), including “[t]he most ‘nominal 

contact,’ such as a ‘ta[p] ... on the shoulder without consent,’” 

id. (quoting Hearns, 961 So. 2d at 219). Florida’s simple battery 
14 Nos. 17-2282 & 17-2724

law thus criminalized a greater variety of conduct than the 

force clause punished. 

The same is true of Davis’s conviction for simple robbery 

in Wisconsin. The relevant Wisconsin statute provides that 

robbery can be committed in two ways: 

(a) By using force against the person of the owner with 

intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or 

carrying away of the property; or

(b) By threatening the imminent use of force against 

the person of the owner or of another who is present 

with intent thereby to compel the owner to acquiesce 

in the taking or carrying away of the property.

WIS. STAT. § 943.32(1). The Wisconsin Supreme Court has 

expressly stated that the requisite force is “not to be 

confounded with violence” and the “degree of force used by 

the defendant is immaterial.” Walton v. State, 218 N.W.2d 309, 

312 (Wis. 1974); see also Whitaker v. State, 265 N.W.2d 575, 579 

(Wis. 1978). Walton and Whitaker thus parallel the 

Florida Supreme Court’s decision in Hearns by defining force 

to include nonviolent physical contact. Given this 

authoritative interpretation of Wisconsin law, section 

943.32(1) does not trigger the elements clause under 

Curtis Johnson. 

Curtis Johnson, of course, said nothing about the residual 

clause. It spoke only to the elements clause. Curtis Johnson 

thus provided Davis with no basis to move for resentencing 

under section 2255. Contrary to the government’s assertion, 

nothing had happened that would have initiated the relevant 

limitation period under section 2255(f)(3). That provision has 
Nos. 17-2282 & 17-2724 15

meaning only if read in conjunction with the right it limits—

a right that section 2255(a) creates. Section 2255(a) permits a 

motion to set aside a sentence by a prisoner “claiming the 

right to be released upon the ground that the sentence was 

imposed in violation of the Constitution or laws of the United 

States.” 28 U.S.C. § 2255(a). 

Prior to Johnson, Davis had no basis to assert that his sentence was illegal and thus he could not claim a right to be released. Curtis Johnson did not change that fact: all it did was to 

eliminate the elements clause as a basis for Davis’s status, 

which became entirely dependent on the residual clause. 

There matters stayed until Johnson. Only then could Davis file 

a nonfrivolous motion for relief. Section 2255(f)(3) applies a 

limitation period of one year from “the date on which the 

right asserted was initially recognized by the Supreme 

Court.” 28 U.S.C. § 2255(f)(3). It was not until Johnson that the 

Supreme Court recognized Davis’s asserted right “to be released” on account of an illegal or unconstitutional sentence.

28 U.S.C. § 2255(a) (emphasis added). Only by divorcing section 2255(f)(3) from section 2255(a) could one say that Davis’s 

right to petition for his release ended before it began.

In support of its proposed rule, the government offers only 

an excerpt from a single case, Stanley v. United States, which 

held that Curtis Johnson rather than Johnson triggered the limitation period under section 2255(f)(3). 827 F.3d 562, 565 

(7th Cir. 2016). But a closer look at Stanley demonstrates that 

it does not help the government. In Stanley, Johnson did not 

reopen the limitations period because, regardless of the constitutionality of the residual clause, only the elements clause 

had ever justified Stanley’s sentence. Stanley, 827 F.3d at 565. 

The residual clause, and hence Johnson, was irrelevant. Id. 
16 Nos. 17-2282 & 17-2724

Moreover, we were careful to note that the prisoner might 

have relied on Johnson to trigger section 2255(f)(3) had he “decided not to press an argument about the elements clause at

[his original] sentencing, or on appeal,” because “the only 

consequence would have been to move a conviction from the 

elements clause to the residual clause.” Id. That is precisely 

the situation presented here.

B

Turning to Cross’s case, the government argues that a 

waiver clause in his plea agreement bars him from bringing 

his motion under section 2255. Plea agreements are contracts 

through which defendants bargain away fundamental rights. 

E.g., United States v. Ingram, 979 F.2d 1179, 1184 (7th Cir. 1992). 

We therefore construe plea agreements according to the ordinary principles of contract law, but with a heightened obligation both to secure for defendants the benefits of their negotiation and to restrict only those rights they properly relinquished. E.g., id. (“Plea agreements, however, are ‘unique contracts’ and the ordinary contract principles are supplemented 

with a concern that the bargaining process not violate the defendant’s right to fundamental fairness under the Due Process 

Clause.”); United States v. Quintero, 618 F.3d 746, 751 (2010) 

(“‘[W]e interpret the terms of the agreement according to the 

parties’ reasonable expectations’ and construe any ambiguities in the light most favorable to” the defendant), quoting 

United States v. Woods, 581 F.3d 531, 534 (7th Cir. 2009)); see 

also, e.g., United States v. Alcala, 678 F.3d 574, 577 (7th Cir. 

2012). A valid appeal waiver must speak in “express and unambiguous” terms. Quintero, 618 F.3d at 751; United States v. 

Woolley, 123 F.3d 627, 632 (7th Cir. 1997) (quoting United States 

v. Hendrickson, 22 F.3d 170, 174 (7th Cir. 1994). Contrary to the 
Nos. 17-2282 & 17-2724 17

government’s assertions, we determine de novo whether a plea 

agreement satisfies this requirement. Alcala, 678 F.3d at 577; 

Ingram, 979 F.2d at 1184. 

Cross’s waiver of his right to bring a section 2255 motion 

was not unlimited. It did not include, for instance, a challenge 

to “the court’s reliance on any constitutionally impermissible 

factor.” Both the district court and government interpret that 

carve-out to encompass only a narrow set of factors read into 

all appeal waivers as a matter of constitutional law. Under this 

exception, even a blanket appeal waiver cannot foreclose a defendant’s right to challenge the sentencing court’s use of a 

constitutionally impermissible, identity-based factor such as 

race or gender. E.g., Jones v. United States, 167 F.3d 1142, 1144 

(7th Cir. 1999). According to the government, the written 

carve-out in Cross’s agreement merely replicates this constitutional baseline and thus does not cover Cross’s motion. 

Cross reads the carve-out to include any unconstitutional 

input in sentencing. This is a reasonable interpretation. Even 

if we thought the government’s reading were also reasonable, 

we would be left with an ambiguous waiver that should not 

apply to Cross’s section 2255 motion. The language of the plea 

agreement does not limit the term “constitutionally impermissible factor” to the exceptions that we must read into all 

appeal waivers. A “factor,” in its relevant sense, is simply 

“[a]n element or constituent, esp[ecially] one which contributes to or influences a process or result.” Factor, OXFORD 

ENGLISH DICTIONARY (3d ed. Sept. 2014), 

http://www.oed.com/view/Entry/67512?rskey=tf2pMV&result=1&isAdvanced=false#eid. Courts routinely use the word

factor to refer to mandatory-guidelines inputs. E.g., United 

States v. Booker, 543 U.S. at 241–42 (noting that the guidelines 
18 Nos. 17-2282 & 17-2724

set sentencing ranges “based on various factors related to the 

offense and the offender”); Koon v. United States, 518 U.S. 81, 

92 (1996). The guidelines do the same, including with respect 

to the career-criminal enhancement. E.g., U.S.S.G. § 1B1.3. 

Cross’s designation as a career offender on the basis of the residual clause was a crucial element of the sentencing court’s 

guidelines calculation. It contributed directly to his resulting 

sentence and was thus a factor in his sentence. 

We are satisfied that the exception in Cross’s waiver for 

any “constitutionally impermissible factor” in sentencing covers the alleged illicit use of the residual clause to calculate 

his guidelines range. Cross thus retained the right to file the 

present section 2255 motion. 

IV

Having dispensed with these procedural hurdles, we are 

at last ready to resolve the central issue on appeal: whether, 

under Johnson, relief is available to Davis and Cross. Johnson 

establishes that the residual clause of the ACCA is unconstitutionally vague. 135 S. Ct. at 2557. Therefore, if a) the residual 

clause of the guidelines suffers from the same indeterminacy 

and b) the constitutional requirement of clarity applies to the 

mandatory guidelines, then we must declare that clause void 

as well. 

A

Johnson homed in on a confluence of two factors that deprived the residual clause of the ACCA of sufficiently definite 

meaning. 135 S. Ct. at 2557–58; see also Sessions v. Dimaya, 

138 S. Ct. 1204, 1213 (2018). First, the ACCA clause required 

judges to assess the risk of injury associated with a defendant’s prior convictions using a categorical approach. Johnson, 
Nos. 17-2282 & 17-2724 19

135 S. Ct. at 2557. In other words, “[i]t 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. Second, it required judges to weigh the apparent danger posed 

by those idealized offenses against the nebulous metric of “serious potential risk.” Id. at 2557. The “combin[ed] indeterminacy” concerning how much risk the crimes of conviction

posed and the degree of risk required of violent felonies produced unacceptable “unpredictability and arbitrariness.” Id. 

at 2558. 

These same two faults inhere in the residual clause of the 

guidelines. It hardly could be otherwise because the two 

clauses are materially identical. The mandatory minimum 

provisions of the ACCA apply to defendants who “ha[ve]

three previous convictions ... for a violent felony or a serious 

drug offense.” 18 U.S.C. § 924(e)(1). The statute defines “violent felony” as one that: 

(i) has as an element the use, attempted use, or 

threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of 

explosives, or otherwise involves conduct that 

presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). Instead of referring to a “violent felony,” the guidelines speak of a defendant’s “ha[ving] at least 

two prior felony convictions of either a crime of violence or a 

controlled substance offense.” U.S.S.G. § 4B1.1. Its definition 

of a “crime of violence,” however, is identical to that of “vio-
20 Nos. 17-2282 & 17-2724

lent felony” in the ACCA. A “crime of violence” is “any offense under federal or state law, punishable by imprisonment 

for a term exceeding one year that—

(i) has as an element the use, attempted use, or 

threatened use of physical force against the person of another, or

(ii) 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.S.G. § 4B1.2 (1992) (emphasis added); see also U.S.S.G. 

§ 4B1.2 (2000) (replacing roman with arabic numerals and 

adding a comma before “that” in the introductory clause). The 

only linguistic difference between the two is italicized. In the 

enumerated crimes section, burglary under the guidelines is 

limited to burglary of a dwelling. Otherwise, the two definitions are identical, as the Supreme Court has acknowledged. 

See Beckles, 137 S. Ct. at 890 (describing the residual clauses as 

“identically worded”). (Nitpickers may also notice that 

ACCA and 1992 edition of the guidelines use roman numerals, while the 2000 edition adopted arabic numerals. We cannot fathom why that should matter.) 

Johnson confirmed that the categorical approach applies to 

the residual clause of the ACCA. 135 S. Ct. at 2561–62; see also 

id. at 2579–80 (Alito, J., dissenting). The majority gave three 

reasons for doing so. All three of those reasons apply with 

equal force to the guidelines. First, in the face of the Court’s 

consistent application of the categorical approach to the residual clause, the government did not, in Johnson, ask it to abandon that approach. Id. at 2562 (majority opinion). We too have 
Nos. 17-2282 & 17-2724 21

taken the position that the categorical approach applies to the 

guidelines without eliciting any objection from the government (either in this case or others). E.g., United States v. Woods, 

576 F.3d 400, 403–04 (7th Cir. 2009). Second, the ACCA “refers 

to ‘a person who ... has three previous convictions’ for—not 

a person who has committed—three previous violent felonies 

or drug offenses.” Johnson, 135 S. Ct. at 2562 (quoting in its 

entirety from Taylor v. United States, 495 U.S. 575, 600 (1990)). 

Johnson held that “[t]his emphasis on convictions indicates 

that ‘Congress intended the sentencing court to look only to 

the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying 

the prior convictions.’” Id. (quoting Taylor, 495 U.S. at 600 

(1990)). Likewise, the guidelines refer to a defendant who

“has at least two prior felony convictions of either a crime of 

violence or a controlled substance offense,” rather than a person who has committed two prior felonies. U.S.S.G. § 4B1.1. 

Third, the Court noted the “utter impracticability of requiring 

a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.” Johnson, 135 

S. Ct. at 2551. That difficulty is just as acute under the guidelines as under the ACCA.

The additional words, “of a dwelling,” in the guidelines’

enumerated clause do not focus the meaning of the phrase 

“serious potential risk” in the residual clause that follows. It 

might once have been argued that narrowing the enumerated 

burglary offense allows a more precise analogy to be drawn 

to the degree of harm with which the residual clause is concerned. But the Supreme Court closed the door on this noscitur 

a sociis style argument in Taylor. Taylor faced the converse 

problem of trying to determine the meaning of “burglary” in 

the enumerated clause of the ACCA, and in particular 
22 Nos. 17-2282 & 17-2724

whether to read in the common-law requirement that a burglar must target a dwelling. 495 U.S. at 593–96. Although Taylor entertained the converse notion that the requirement of a 

“serious potential risk” of injury in the residual clause might 

inform the meaning of the enumerated offenses, the Court refrained from taking that approach: 

It could be argued, of course, that common-law burglary, by and large, involves a greater “potential risk 

of physical injury to another.” § 924(e)(2)(B)(ii). But, 

even assuming that Congress intended to restrict the 

predicate offense to some especially dangerous subclass of burglaries, restricting it to common-law burglary would not be a rational way of doing so. The 

common-law definition does not require that the offender be armed or that the dwelling be occupied at the 

time of the crime. An armed burglary of an occupied 

commercial building, in the daytime, would seem to 

pose a far greater risk of harm to persons than an unarmed nocturnal breaking and entering of an unoccupied house. It seems unlikely that Congress would 

have considered the latter, but not the former, to be a 

“violent felony” counting towards a sentence enhancement.

Id. at 594. Thus, limiting the enumerated offense to burglaries 

of dwellings sheds no light on the degree of risk required in 

the residual clause. 

The Supreme Court’s recent decision in Dimaya reconfirms 

our view that the residual clause of the guidelines shares the 

weaknesses that Johnson identified in the ACCA. Dimaya concerned an analogous residual clause in 18 U.S.C. § 16, as incorporated into the Immigration and Nationality Act. 
Nos. 17-2282 & 17-2724 23

138 S. Ct. at 1210–11. The INA renders removable any “alien 

who is convicted of an aggravated felony at any time after admission,” 8 U.S.C. § 1227(a)(2)(A)(iii), and precludes the cancellation of his removal and adjustment of his status by the 

Attorney General, id. § 1229b(a)(3), (b)(1)(C). The statute defines aggravated felony to include a “crime of violence ... for 

which the term of imprisonment [is] at least one year.” Id. 

§ 1101(a)(43)(F). Section 16, in turn, contains the following 

definition of “crime of violence”:

(a) an offense that has as an element the use, attempted 

use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its 

nature, involves a substantial risk that physical force 

against the person or property of another may be used 

in the course of committing the offense.

18 U.S.C. § 16. 

The Court turned to Johnson for guidance in how to read 

section 16. It found no principled difference between the two

statutes: Johnson, it said, “is a straightforward decision, with 

equally straightforward application here.” Dimaya, 138 S. Ct. 

at 1213. Section 16’s residual clause suffered from indeterminacy in “just the same way” as the ACCA’s. Id. at 1213. Both 

required a categorical approach to the predicate offenses, and 

both vaguely called for a “not-well-specified-yet-sufficientlylarge degree of risk.” Id. at 1216. In his concurrence, Justice 

Gorsuch highlighted the key parallels between the ACCA and 

statutory scheme at issue in Dimaya from which the Court’s 

conclusion flowed: 
24 Nos. 17-2282 & 17-2724

Just like the statute in Johnson, the statute here instructs 

courts to impose special penalties on individuals previously “convicted of” a “crime of violence.” Just like 

the statute in Johnson, the statute here fails to specify 

which crimes qualify for that label. Instead, and again 

like the statute in Johnson, the statute here seems to require a judge to guess about the ordinary case of the 

crime and conviction and then guess whether a “substantial risk” of “physical force” attends its commission. Johnson held that a law that asks so much of courts 

while offering them so little by way of guidance is unconstitutionally vague. And I do not see how we might 

reach a different judgment here. 

Id. at 1231 (Gorsuch, J., concurring). As we already have highlighted, each of those three hallmarks is shared by the guidelines. The guidelines speak of a defendant “convicted of” a 

crime of violence, do not specify the offenses belonging to the 

category, and leave judges to guess how much risk offenses 

must entail. Thus, to borrow Justice Gorsuch’s phrase, we “do 

not see how we might reach a different judgment here.” 

In fact, the textual differences between the ACCA and 

guidelines pale in comparison to the differences between the 

ACCA and section 16: section 16 lacks an enumerated clause; 

its residual clause requires “physical force” rather than 

“physical injury”; it requires a “substantial risk” rather than a 

“serious potential risk”; and it additionally requires that the 

offense involve that risk “by its nature” and that the risk arise 

“in the course of committing the offense.” Compare 18 U.S.C. 

§ 16(b) with 18 U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G. 

§ 4B1.2(a)(i). In dissent, Chief Justice Roberts sought to distin-
Nos. 17-2282 & 17-2724 25

guish Johnson on the basis of some of these differences, see Dimaya, 138 S. Ct. at 1235–37 (Roberts, C.J., dissenting), but the 

majority of his colleagues were unpersuaded, see id. at 1218 

(majority opinion). Interestingly, the Dimaya majority considered whether the complete absence of an enumerated-offense

clause in section 16 affected the indeterminacy of its residual 

clause. Id. at 1221. Resolving that question in the negative, the 

Court observed that the enumerated crimes of the ACCA had 

failed to establish a baseline degree of risk because they “were 

themselves too varied to provide such assistance.” Id. (“Trying to reconcile them with each other, and then compare them 

to whatever unlisted crime was at issue, drove many a judge 

a little batty.”). The guidelines did not reduce that diversity 

by substituting burglary of a dwelling in a list that includes extortion and use of explosives.

Although several justices in Dimaya did question the vitality of the categorical approach, their opinions do not undercut

our interpretation of the guidelines for two reasons. First, 

only a minority of the justices cast aspersions on the categorical approach. Justice Thomas, joined in part by Justices Kennedy and Alito, did so in dissent. Id. at 1250–59 (Thomas, J., 

dissenting). Justice Gorsuch’s concurrence reserved judgment 

on the issue for the future. Id. at 1232–33 (Gorsuch, J., concurring). Until that time, Justice Gorsuch assumed that the categorical approach did apply because, in part, the Supreme

Court’s “precedent seemingly requires this approach.” Id. at 

1232. If that was enough to persuade the Justice, it is more 

than enough for us. As a lower court, we are required to follow the Court’s precedents until the Court itself tells us otherwise. Unless and until a majority of the Court overrules the 
26 Nos. 17-2282 & 17-2724

majority opinions in Johnson and Dimaya, they continue to 

bind us.1 

 

1 The Supreme Court recently vacated our judgments in United States 

v. Jenkins and United States v. Jackson, remanding those cases to us for reconsideration in light of Dimaya. United States v. Jenkins, No. 17-97, 2018 

WL 2186183 (U.S. May 14, 2018); United States v. Jackson, No. 17-651, 2018 

WL 2186185 (U.S. May 14, 2018). Those remands do not dictate our disposition of the present appeals. Our now-vacated opinions in Jenkins and 

Jackson had held that the residual clause of 18 U.S.C. § 924(c)(3)(B) was 

unconstitutionally vague, and in so doing had assumed that the clause required use of the categorical approach. United States v. Jackson, 865 F.3d 

946, 952, 956 (7th Cir. 2017); see also United States v. Jenkins, 849 F.3d 390, 

394 (7th Cir. 2017). The government had asked the Supreme Court to return those cases to us because Dimaya “suggest[ed] that a court could, consistent with the canon of constitutional avoidance, construe Section 

924(c)(3)(B) to permit application of a non-categorical approach that considers the defendant’s conduct.” Supplemental Brief for the United States 

at 5, Jenkins & Jackson, 2018 WL 2186183 & 2018 WL 2186185 (U.S. Apr. 17, 

2018) (Nos. 17-97 & 17-651). The government was careful to distance section 924(c)(3)(B) from one of the prime justifications for applying the categorical approach to the residual clause of section 924(e) of the ACCA, 

section 16(b), and the guidelines: 

A non-categorical approach ... may make particular sense in the 

context of Section 924(c)(3)(B). Unlike Section 16(b) of the ACCA’s 

residual clause, Section 924(c)(3)(B)’s definition of a “crime of violence” is never applied to a prior conviction, the specific facts of 

which may not be before the court. Section 924(c) instead employs 

the term “crime of violence” to describe the conduct involved in 

the present offense with which the defendant is charged.

Id. at 3–4. We will reserve for our reconsideration of Jenkins and Jackson

whether that difference is enough to justify jettisoning the categorical approach for section 924(c)(3)(B). For the moment, it is enough for us to note 

that the guidelines, like sections 924(e) and 16(b), require courts to consider the defendant’s prior offenses. 
Nos. 17-2282 & 17-2724 27

Second, with the exception of Justice Thomas, no justice 

swore off the categorical approach for the residual clause of 

the ACCA. Id. at 1253–54 (Thomas, J., dissenting). Rather, in 

the portion of his dissent joined by Justices Kennedy and 

Alito, Justice Thomas advocated abandoning that approach

only when applying section 16. Id. at 1254–59 (Thomas, J., dissenting). In its place, he advocated an “underlying-facts approach”—i.e., analyzing the crime as committed. In Justice 

Thomas’s opinion, “both interpretations [were] linguistically 

possible,” id. at 1255; however, he saw the diction and context

of section 16 and, in particular, the doctrine of constitutional 

avoidance as counseling strongly in favor of the underlyingfacts approach, id. at 1255–56. 

In developing this argument, Justice Thomas was careful 

to distance section 16 from the factors that had justified adopting the categorical approach for the ACCA—factors that apply with equal force to the guidelines. First, adopting the underlying-facts approach for the ACCA would have raised

Sixth Amendment concerns. Although those same concerns 

apply to the mandatory guidelines, see Booker, 543 U.S. 220, a 

jury right does not attach to immigration cases, Dimaya, 

138 S. Ct. at 1256. When section 16 is applied to criminal cases, 

Justice Thomas suggested that the defendant’s prior conduct 

should simply be indicted and proven at trial. Regardless of 

the merits of that suggestion (which Johnson rejected for the 

ACCA, see 135 S. Ct at 2580 (Alito, J., dissenting)), that forward-looking strategy cannot be applied to the now-concluded era of mandatory guidelines. Justice Thomas also invoked context in support of his view. He noted that in the 

unique setting of the INA the Supreme Court had required an 

underlying-conduct approach to identify other aggravated 

felonies. Dimaya, 138 S. Ct. at 1257. Finally, Justice Thomas
28 Nos. 17-2282 & 17-2724

thought that the practical concerns that had motivated Johnson, and which apply with equal force to the mandatory 

guidelines, did not obtain in the context of immigration proceedings. Immigration judges, rather than courts, would have 

to shoulder the burden of identifying past conduct. Justice 

Thomas thought that “those judges [were] already accustomed to finding facts about the conduct underlying an alien's 

prior convictions”—a task already imposed by other aspects 

of the INA—and there was no evidence that they had struggled to do so. Id. at 1257–58. The same cannot be said of 

judges’ efforts to apply the guidelines residual clause.

B

The penultimate question before us is whether a vagueness challenge directed against the guidelines is possible for 

defendants such as Cross and Davis whose sentences were 

handed down before Booker, when the guidelines were mandatory. If so, then they have a right to be resentenced because 

the residual clause that underlay both of their sentences suffered from the same vagueness that doomed its counterpart 

in the ACCA.

The answer to that question depends in the first instance 

on the breadth of the Supreme Court’s holding in Beckles. In 

the context of a sentence imposed after the guidelines became 

discretionary, Beckles upheld the residual clause of the guidelines against a Johnson-inspired vagueness challenge.

137 S. Ct. at 890. The Supreme Court took care, however, to 

specify that it was addressing only the post-Booker, advisory

version of the guidelines. It held “that the advisory Guidelines 

are not subject to vagueness challenges under the Due Process 

Clause,” id. at 890 (emphasis added), and referred repeatedly 

to the “advisory Guidelines” throughout the opinion, id. at 
Nos. 17-2282 & 17-2724 29

890, 892, 894, 895, 896, 897. Indeed, it expressly distinguished 

Johnson on the ground that Johnson dealt with a binding residual clause:

Unlike the ACCA ... the advisory Guidelines do not 

fix the permissible range of sentences. To the contrary, 

they merely guide the exercise of a court’s discretion 

in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process 

Clause. The residual clause in § 4B1.2(a)(2) therefore 

is not void for vagueness.

Id. at 892. We take the Court at its word: the Beckles opinion 

applies only to the guidelines as they have been since 2005, 

not to the pre-Booker mandatory regime.

Even more importantly, Beckles’s logic for declining to apply the vagueness doctrine rests entirely on the advisory quality of the current guidelines. The vagueness doctrine ensures 

that a “law regulating private conduct by fixing permissible 

sentences provides notice and avoids arbitrary enforcement 

by clearly specifying the range of penalties available.” Id. at 

895. Those purposes distinguish vagueness from the ex post 

facto clause, which Peugh tells us does apply to the advisory 

guidelines. The ex post facto clause bars a retroactive law if it 

“creates a significant risk of a higher sentence.” 137 S. Ct. at 

895 (quoting Peugh, 569 U.S. at 550). Lengthening advisory 

guidelines terms increases the likelihood of prolonged sentences—thereby raising ex post facto concerns—because the 

advisory guidelines exert a powerful anchoring influence on 

judges. Id. at 894; Peugh, 569 U.S. at 541–42. In contrast, advi-
30 Nos. 17-2282 & 17-2724

sory guidelines do “not implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement,” Beckles, 137 S. Ct. at 894: 

[E]ven perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct so as 

to avoid particular penalties within the statutory 

range. That is because even if a person behaves so as to 

avoid an enhanced sentence ... the sentencing court retains discretion to impose the enhanced sentence ... .

The advisory Guidelines also do not implicate ... arbitrary enforcement ... . An unconstitutionally vague 

law invites arbitrary enforcement ... if it ‘leaves judges 

and jurors free to decide, without any legally fixed 

standards, what is prohibited and what is not in each 

particular case’ or permits them to prescribe the sentences or sentencing range available. The Guidelines, 

however, do not regulate the public by prohibiting any 

conduct or by ‘establishing minimum and maximum 

penalties for [any] crime.’ Rather, the Guidelines advise sentencing courts how to exercise their discretion 

within the bounds established by Congress. 

Id. at 894–95 (quoting respectively Giaccio v. Pennsylvania,

382 U.S. 399, 402–03 (1996) and Mistretta v. United States, 488 

U.S. 361, 396 (1989)) (alterations in original) (citations omitted). Thus, the vagueness doctrine does not prohibit including 

the residual clause in the advisory guidelines. 

The mandatory guidelines did, however, implicate the concerns of the vagueness doctrine. Beckles reaffirmed that the 

void-for-vagueness doctrine applies to “laws that fix the permissible sentences for criminal offenses.” 137 S. Ct. at 892. As 
Nos. 17-2282 & 17-2724 31

Booker described, the mandatory guidelines did just that. They 

fixed sentencing ranges from a constitutional perspective:

The [mandatory] Guidelines ... are not advisory; 

they are mandatory and binding on all judges. While 

subsection (a) of [18 U.S.C.] § 3553 of the sentencing 

statute lists the Sentencing Guidelines as one factor to 

be considered in imposing a sentence, subsection (b) 

directs that the court “shall impose a sentence of the 

kind, and within the range” established by the Guidelines, subject to departures in specific, limited cases. ...

The availability of a departure in specified circumstances does not avoid the constitutional issue ... . The 

Guidelines permit departures from the prescribed sentencing range in cases in which the judge “finds that 

there exists an aggravating or mitigating circumstance 

of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b)(1)

(2000 ed., Supp. IV). At first glance, one might believe 

that the ability of a district judge to depart from the 

Guidelines means that she is bound only by the statutory maximum. ... Importantly, however, departures 

are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors 

into account, and no departure will be legally permissible. In those instances, the judge is bound to impose 

a sentence within the Guidelines range. ...

Booker’s case illustrates the mandatory nature of 

the Guidelines. ... Under these facts, the Guidelines 
32 Nos. 17-2282 & 17-2724

specified an offense level of 32 ... . Booker’s is a run-ofthe-mill drug case, and does not present any factors 

that were inadequately considered by the Commission. 

The sentencing judge would therefore have been reversed had he not imposed a sentence within the level 

32 Guidelines range.

Booker, 543 U.S. at 233–34 (emphasis in original). In sum, as 

the Supreme Court understood in Booker, the residual clause 

of the mandatory guidelines did not merely guide judges’ discretion; rather, it mandated a specific sentencing range and 

permitted deviation only on narrow, statutorily fixed bases.

The Court thus addressed, and rejected, the argument that 

the possibility of departures from the mandatory guideline 

range was enough to make it advisory. We might add that 

even statutory minimum sentences are not exempt from departures, if, for instance, the government files a substantialassistance motion, 18 U.S.C. § 3553(e), or the court finds that 

the defendant is entitled to the statutory safety valve, id. 

§ 3553(f). Yet, as we know from Johnson’s treatment of the 

ACCA, statutory minima must comply with the prohibition 

of vague laws. The existence of some play in the joints is not 

enough to change the character of either statutory sentencing 

limitations or the pre-Booker guidelines from mandatory to 

advisory.

We conclude that the mandatory guidelines’ incorporation 

of the vague residual clause impeded a person’s efforts to 

“regulate his conduct so as to avoid particular penalties” and 

left it to the judge to “prescribe the ... sentencing range available.” Beckles, 137 S. Ct. at 894–95. Therefore, unlike the advisory guidelines, the mandatory guidelines implicated the 

“twin concerns” of the vagueness doctrine. Id. at 894. The 
Nos. 17-2282 & 17-2724 33

mandatory guidelines are thus subject to attack on vagueness 

grounds. 

C

The last question is whether Johnson applies retroactively 

to the residual clause of the career-offender guideline. A 

newly announced constitutional rule applies retroactively if it 

is either a substantive rule or a “watershed rule[] of criminal 

procedure.” Welch, 136 S. Ct. at 1264 (quoting Saffle v. Parks,

494 U.S. 484, 495 (1990)). A substantive rule “alters the range 

of conduct or the class of persons that the law punishes,” 

whereas procedural rules “regulate only the manner of determining the defendant’s culpability.” Id. at 1264–65 (quoting 

Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). In Welch, the 

Supreme Court held that Johnson qualifies as a substantive 

rule, because it narrowed the class to whom the ACCA’s mandatory minimum applied, id. at 1265: 

Before Johnson, the [ACCA] applied to any person who 

possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the 

same person engaging in the same conduct is no longer 

subject to the Act and faces at most 10 years in prison. 

The residual clause is invalid under Johnson, so it can 

no longer mandate or authorize any sentence. Johnson

establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate”

a sentence based on that clause. It follows that Johnson

is a substantive decision.
34 Nos. 17-2282 & 17-2724

Id. (quoting United States v. U.S. Coin & Currency, 401 U.S. 715, 

724 (1971)). 

The same logic justifies treating Johnson as substantive, 

and therefore retroactive, when applied to the mandatory 

guidelines. Just as excising the residual clause from the ACCA 

changed the punishment associated with illegally carrying a 

firearm, striking down the residual clause in the mandatory 

guidelines changes the sentencing range associated with 

Cross’s and Davis’s bank robberies. At the same time, it narrows the set of defendants punishable as career offenders for 

the commission of any number of crimes. In other words, 

Johnson has effectively changed Davis’s and Cross’s substantive crime for sentencing purposes from bank robbery by a 

career offender to simple bank robbery. Elimination of the residual clause of section 4B1.2(a)(2) (in its mandatory guise)

thus “alters the range of conduct or the class of persons that 

the law punishes” and qualifies as a retroactive, substantive 

rule. Welch, 136 S. Ct. at 1264 (quoting Schriro, 542 U.S. at 353). 

V

We hold that both Cross and Davis are entitled to relief 

from their career-offender classifications, based on the Supreme Court’s decision in Johnson. We thus REVERSE the district court and REMAND these cases with instructions to grant 

Cross’s and Davis’s section 2255 motions and to resentence 

them in accordance with this opinion.