18

- 1803

- pr Nunez v. United States

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

____________________ 3
4 August Term, 201 9 5
6 (Argued: August 29, 2019 Decided: March 30, 2020 ) 7
8 Docket No . 18

- 1803

- pr 9
10

____________________ 11
12 MIGUEL NUNEZ , 13
14 Petit i oner

- Appellant , 15
16

v. 17
18 UNITED STATES OF AMERICA , 19
20 Respondent

- Appell ee

. 21
22

____________________ 23
24 Before: POOLER, PARKER, and RAGGI , Circuit Judges

. 25
26 Petitioner Miguel Nunez a ppeal s from a judgment of the United States 27
District Court for the Southern District of New York ( Lewis A. Kaplan , J .) 28
denying his 28 U.S.C. § 2255 motion as untimely

. The district court held that 29
Nunez could not show that his motion was timely pursuant to 28 U.S.C. § 302 2255(f)(3 ) because the Supreme Court’s decision in Johnson v. United States , 135 S. 1
Ct. 2551 (2015), did not recognize a retroactive right not to be sentenced based 2

upon the residual c lause in the Career Offender Guideline of the pre

- Booker 3
Sentencing Guideline s . We hold that the district court properly concluded that 4
Johnson did not give rise to the right Nunez asserts and, therefore, correctly 5

denied his Section 2255 motion as untimely

. 6

Affirmed. 7
Judge Pooler and Judge Raggi each concur in separate opinions. 8

____________________ 9

EDWARD S. ZAS , Federal Defenders of New York, Inc., 10 Appeals Bureau, New York, NY, for Petitioner

- Appellant 11 Miguel Nunez

. 12
13 NATHAN REHN , Assistant United States Attorney 14 ( Anna M. Skotko , Assistant United States Attorney, on 15 the brief ), for Geoffrey S. Berman , United States Attorney 16 for the Southern District of New York , New York, NY, 17 for Respondent

- Appellee

. 18
19
20
21
22
23
24
25
263 POOLER, Circuit Judge : 1

Petitioner Miguel Nunez appeals from the May 24, 2018 judgment of the 2
United States District Court for the Southern District of New York ( Lewis A. 3
Kaplan , J .) denying as untimely Nunez’s 28 U.S.C. § 2255 motion challenging his 4
February 7, 2000 sentence for substantive and conspiratorial Hobbs Act robbery

. 5

See 18 U.S .C. § 1951(a). Nunez is currently serving 360 months’ imprisonment for 6
these crimes, a significant upward departure from the 151

- to

- 188 month 7
Guidelines range calculated by the district court under the presumptively 8
binding pre

- Booker Sentencing Guidelines. See United States v. Booker , 543 U.S. 220 9
(2005). That Guidelines range was dictated by the Career Offender Guideline, see 10
U.S.S.G. § 4B1.1, which the district court applied upon finding that Nunez’s 11
present, and two prior, convicti ons were all for “crime[s] of violence,” as defined 12
in the Guideline’s residual clause, id

. § 4B1.2

. Nunez argues that th is residual 13

clause is unconstitutionally vague , and thus , his sentencing violates due process. 14
In support , Nunez relies on Johnson v. U nited States , 135 S. Ct. 2551 (2015), which 15
struck down an identically worded provision of the Armed Career Criminal Act 16
as unconstitutionally vague. The issue presented to us on appeal is whether the 17
right Nunez asserts was recognized in Johnson , renderin g his motion timely 184 pursuant to 28 U.S.C. § 2255(f)(3) , or whether the right he asserts has yet to be 1
recognized, rendering his motion untimely. We hold that Johnson did not itself 2

render the residual clause of the pre

- Booker Career Offender Guideline 3
unconstitutionally vague and , thus , did not recognize the right Nunez asserts

. 4

We therefore affirm the district court’s denial of Nunez’s Section 2255 motion as 5
untimely. 6

BACKGROUND 7

I. Nunez’s Conviction 8

On October 5, 1999 , Miguel Nunez pled guilty to Hobbs Act robbery and 9
conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). 10

Nunez and two co

- conspirators had broken into the apartment of a male and 11

female couple who ran a florist business and stole between $12,000 an d $14,000 12

in cash , along with other personal items of value. During the course of the 13
robbery, Nunez and one of his co

- conspirators tied both victims up with rope 14

and raped the female proprietor of the florist business. 15

At the time of Nunez’s sentencing , a defendant was considered a career 16

offender und er the Sentencing Guidelines if, 175 (1 ) t he defendant was at least eighteen years old at the time the 1 defendant committed the instant offense of conviction, (2) the instant 2 offense of conviction is a felony that is either a crime of violence or a 3 controlled substance offense, and (3) the defendant has at least two 4 prior felony convictions of either a crime of violence or a controlled 5 substance offense. 6
7 U.S.S.G. § 4B1.1 (1998). Nunez stipulated that he was eighteen years old at the 8

time of his Hobbs Act offenses , he had two prior felony convictions for New 9

York first

- degree robbery, and Hobbs Act robbery was a crime of violence. 10

The Career Offender Guideline defined a crime of violen ce as “any offense 11
under federal or state law, punishable by imprisonment for a term exceeding one 12
year that

— ” 13
(1) has as an element the use, attempted use, or threatened use of physical 14 force against the person of another, or 15 (2) is burglary of a dwelling , arson, or extortion, involves the use of 16 explosives , or otherwise involves conduct that presents a serious potential risk of 17 physical injury to another .” 18
19 U.S.S.G. § 4B1.2 (a) (1998) (emphasis added)

. The first definition is known as the 20

elements clause. The second definition is known as the enumerated offenses 21

clause. The italicized part of the second definition is known as the residual 22

clause. The district court concluded that Nunez’s Hobbs Act robbery, and two 236 prior felony convictions , were “c rimes of violence” under the residual clause. 1
Thus, Nunez constituted a career offender. 2
As a career offender, Nunez’s Guidelines range was 151 to 188 months of 3
imprisonment, as opposed to 121 to 151 months. The district court departed 4
upwards from even this higher Guidelines range under provisions of the 5
Guidelines that permit doing so when a defendant has caused extreme 6
psychological injury in the victim and the conduct was extreme. Accordingly, the 7

district court sentenced Nunez to 240 month s for Hobbs Act robbery and 120 8

m onths for Hobbs Act conspiracy, for a total of 360 months of imprisonment. On 9
appeal, this court upheld the sentence. United States v. Nunez , 8 F. App’x 81 (2d 10
Cir. 2001). 11

II. Subsequent Supreme Court Decisions 12

Some years later, the Supreme Court decided United States v. Booker , 543 13

U.S. 220 (2005), which held that a mandatory application of the Sentencing 14

Guidelines was unconstitutional , see id. at 245

− 46, and to avoid that result, 15

construed the Guidelines as advisory , see id. at 245, 259. 16
More recently, the Supreme Court decided Johnson v. United States , 135 S. 17

Ct. 2551 (20 1 5). The Court in Johnson held that “imposing an increased sentence 187 under the residual clause o f the Armed Career Criminal Act”

 which contained 1

a residual clause identical to that in the crime of violence definition of the Career 2

Offender Guideline

 “violate[d] the Constitution’s guarantee of due process” 3
because the clause was unconstitutionally vague. Id . at 2563. Using the ration ale 4

in Johnson , t he Court subsequently struck down similar ly worded residual 5
clauses in the crime of violence definitions of the Immigration and Nationality 6
Act, see Sessions v. Dimaya , 1 3 8 S. Ct. 1204 (2018), and in 18 U.S.C. § 924(c)(3)( B ), 7

see United States v. Davis , 139 S. Ct. 2319 (2019). 8

T he Supreme Court also dealt with a vagueness challenge to the residual 9

clause of the Career Offender Guideline as applied after Booker in Beckles v. 10

United States , 137 S. Ct. 886 (2017). In Beckles , the de fendant argued that the 11

Guideline’s residual clause was void for vagueness , making his sentencing 12
pursuant to the clause unconstitutional. Id . at 890

- 91. The Supreme Court rejected 13
the argument, refusing to extend Johnson ’s reasoning to the post

- Booker 14

Guidelines

. Id

. at 891

− 92. The Court explained that u nlike the ACCA’s residual 15
clause, which mandated certain , higher sentence range s , “the advisory 16
Guidelines do not fix the permissible range of sentences.” Id . at 892. The advisory 17

Guidelines were for this reason not subject to a vagueness challenge. Id

. In her 188 concurring opinion, Justice Sotomayor noted that “[t]he Court’s adherence to the 1
formalistic distinction between mandatory and advisory rules at least leaves 2
open the question whether defendants sentenced to terms of imprisonment 3

before our decision in United States v. Booker . . . may mount vagueness at tacks on 4

their sentences.” Id . at 903 n.4 (Sotomayor, J. , concurring in the judgment ) 5
(internal quotation marks and citation omitted)

. 6

III. Nunez’s Section 2255 Motion 7
On June 21, 2016, eighteen years after his federal conviction, but less than 8
one year after Johnson was decided, Nunez filed a motion under 28 U.S.C. § 2255 9

to vacate his 30

- year sentence. He argued that Johnson renders the residual clause 10

of the pre

- Booker Career Offender Guideline unconstitutionally vague , so h e 11

should not have been sentenced as a career offender

. See Nunez v. United States , 12

No. 16

- cv
- 4742, 2018 WL 2371714, at *1

- 2 (S.D.N.Y. May 24, 2018). The district 13
court decided the motion was untimely because “the Supreme Court has not 14
itself extended its holding in Johnson to the pre

- Booker guidelines.” Id

. at *2. 15
Nunez timely appealed. 16

179 DISCUSSION 1
On appeal from the denial of a Section 2255 motion, we review a district 2

court’s conclusions of law de novo. Sapia v. United States , 433 F.3d 212, 216 (2d 3
Cir. 2005)

. 4
Motions under Section 2255 are subject to a one

- year statute of limitations 5

that runs fr om several possible dates, only one of which is relevant here: “ [ T ] he 6
date on which the right asserted was initially recognized by the Supreme Court, 7
if that right has been newly recognized by the Supreme Court and made 8
retroactively applicable to cases on collateral review .” 28 U.S.C. § 2255(f)(3). 9

Nunez claims that his motion is timely under Section 2255(f)(3) because he 10

filed it less than one year after the Supreme Court in Johnson first recognized the 11
right he invokes

. Nunez argues that his Section 2255 motion challenging a career

12
offender sentence imposed under the mandatory Guidelines asserts the same due 13

process right recognized in Johnson

. He argues that, like the ACCA ’s residual 14
clause, the residual clause of the ma ndatory Career Offender Guideline “fixed” 15
his sentencing range and was subject to the same concerns articulated in Johnson

. 16

Because the ACCA and residual clause of the Career Offender Guideline are 17
identically worded and interpreted, Nunez claims the holdi ng in Johnson applies 1810 equally to the residual clause in the Guideline and, thus, compels the conclusion 1

that Johnson recognized the right he asserts

. 2

We , however, conclude that Johnson did not itself render the residual 3

clause of the mandatory Career Offender Guideline vague, as required for 4
Section 2255 purposes. Our decision aligns with that of the majority of circuits to 5

have addressed the issue. United States v. London , 937 F.3d 502 (5th Cir. 2019); 6

United S tates v. Blackstone , 903 F.3d 1020 (9th Cir. 2018); Russo v. United States , 902 7
F.3d 880 (8th Cir. 2018); United States v. Green , 898 F.3d 315 (3d Cir. 2018); United 8

States v. Greer , 881 F.3d 1241 (10th Cir. 2018); United States v. Brown , 868 F.3d 297 9
(4th Cir. 2017); Raybon v. United States , 867 F.3d 625 (6th Cir. 2017). 10
In coming to the same conclusion , we are mindful that the Supreme Court 11

has admonished lower courts “against framing [its] precedents at . . . a high level 12
of generality” in reviewing cl aims under the Antiterrorism and Effective Death 13
Penalty Act of 1996 (“ AEDPA ”) , of which Section 2255 is a component. See Lopez 14

v. Smith , 574 U.S. 1, 4 , 6 (2014) (internal quotation marks and citation omitted); 15
Nevada v. Jackson , 569 U.S. 505, 512 (2013). Instead, the Court ha s required 16

identification of precedent related to “the specific question presented by th[e] 17

case.” Lopez , 574 U.S. at 6

. 1811 J

ohn son by its own terms addresses only the ACCA . The Court articulated 1
its holding in that case specifically with regard to the ACCA: “We hold that 2
imposing an increased sentence under the residual clause of the Armed Career 3

Criminal Act violates the Constitution’s guarantee of due process.” 135 S. Ct. at 4
2563 (emphasis added). In addition, the Court cited exclusively to cases that dealt 5

with the residual clause of the ACCA. See id . at 2558

- 60 (citing Sykes v. United 6

States , 564 U.S. 1 (2011); Chambers v. United States , 555 U.S. 122 (2009); James v. 7

Uni ted States , 550 U.S. 192 (2007)). Furthermore, in Welch v. United States , 136 S. 8
Ct. 1257 (2016), which applied Johnson retroactively, the Court referred only to 9
the effect of its holding on the ACCA. Id . at 1265 (“By striking down the residual 10

clause as v oid for vagueness, Johnson changed the substantive reach of the Armed 11

Career Criminal Act . . . .” (emphasis added)). These factors strongly signal that 12

the rule established in Johnson was specific to the residual clause of the ACCA. 13

Our conclusion that the Court was not speaking to contexts beyond the 14

ACCA in Johnson is reinforced by t he fact that the Court has consider ed 15
challenges to identical residual clauses in other statutes piecemeal

. See Session v. 16
Dimaya , 1 3 8 S. Ct. 1204 (2018); United States v. Davis , 139 S. Ct. 2319 (2019). Nor 17
were the applications in these cases necessarily straightforward. As the Ninth 1812 Circuit observed, “[i]t is not always obvious whether and how the Supreme 1
Court will extend its holdings to different context s ,” and in Dimaya , “it took a 2
lengthy discussion to reach [the] conclusion, and four justices disagreed.” United 3

States v. Blackstone , 903 F.3d at 1026

. These decisions further undermine Nunez’s 4

contention that Johnson in and of itself dictates the result of a va gueness 5
challenge to the residual clause in the pre

- Booker Career Offender Guideline. 6

Nunez relies on Beckles v. United States , 137 S. Ct. 886 (2017) , a case holding 7
that the post

- Booker advisory Guidelines are not subject to vagueness challenges, 8
to argue that the pre

- Booker mandatory Guidelines are so subject. This, however, is 9

not a conclusion reached in Johnson . Indeed, Justice Sotomayor’s concurrence in 10

Beckles explained that the question remains open. See id. at 903 n.4 (Sotomayor, J. , 11
concurring in the judgment) (stating that the Court “leaves open the question 12
whether defendants sentenced to terms of imprisonment before our decision in 13

United States v. Booker

— that is, during the period in which the Guidelines did fix 14
the permissible range of sentences

— may mount vague ness attacks on their 15

sentences ” (internal quotation marks and citations omitted)). In sum, w hile we 16
agree that Beckles does not foreclose a vagueness challenge to the m andatory 1713 Sentencing Guidelin es, we cannot agree with Nunez that Johnson articulated the 1
right he seeks to assert. 2
Nunez attempts to circumvent this inevitable conclusion by arguing that 3
any discussion of how the Supreme Court defines the right in Johnson is not 4
relevant to the timeliness of his petition. He relies on Dodd v. United States , 545 5
U.S. 353 (2005) and the Seventh Circuit’s decision in Cross v. United States , 892 6
F.3d 288 (7th Cir. 2018). We are not persuaded. 7

Dodd is inapp licable here . That case established that a petitioner is required 8
to bring a claim within one year after the Supreme Court announces a new rule

— 9
not within one year after the Supreme Court announces the rule is retroactive. 10

545 U.S. at 358

- 59. In deciding so, the Supreme Court noted that the first clause in 11
Section 2255(f)(3) , which states “the date on which the right asserted was initially 12
recognized by the Supreme Court,” is “the operative date.” Id . at 358. The second 13
clause, which states “if that right has been newly recognized by the Supreme 14
Court and made retroactively a pplicable to cases on collateral review,” merely 15
imposes a condition on the applicability of the subsection. Id . Nunez reads Dodd 16

as requir ing us to focus on the first clause of Section 2255(f)(3) regardless of 17
whether the petitioner has framed the right a sserted in a manner consistent with 1814 how the Supreme Court articulated it. Dodd cannot, however, be stretched to 1
accommodate this interpretation

. No aspect of Dodd supports Nunez’s 2
interpretation that a defendant moving for Section 2255 relief may assert any 3
right suggested by the Suprem e Court within the past year for his motion to 4
qualify as timely. Dodd simply stands for the proposition that the one

- year 5
statute of limitations period begins to run following the Supreme Court’s 6
recognition of a right , as opposed to the Court’s retroactive application of the 7
right

. Nunez’s invocation of Dodd is unavailing. 8
Nor are we persuade d by Cross v. United States , 892 F.3d 288 (7th Cir. 2018) , 9
the only Circuit decision holding that a Section 2255 motion challenging the 10
residual clause of the pre

- Booker Career Offender Guidelines is timely if filed 11
within a year of Johnson

. Cross , 892 F.3d at 293

- 94. In coming to this conclusion, 12

the Seventh Circuit reason ed that the government’s argument that Johnson did 13
not recognize the right asserted because the Supreme Court has not extended the 14
logic of Johnson to the pre

- Booker mandatory guidelines “suffers from a 15
fundamental flaw. It improperly reads a merits analysis into the limitations 16
period.” Id

. at 293. But this conclusion “effectively reads ‘recognized’ out of 28 17
U.S.C. § 2255(f)(3) by not engaging in an inquiry into whet her the right asserted 1815 by the petitioner is the same right that was recognized by the Supreme Court.” 1

United States v. Green , 898 F.3d 3 15, 322 (3d Cir. 2018). For this reason, we decline 2
to adopt the Seventh Circuit’s reasoning in Cross

. 3
Rather, we join the majority of our sister circuits and hold that Section 4
2255(f)(3) require s courts to consider whether the right a petitioner asserts has 5
been recognized by the Supreme Court as part and parcel of deciding whether a 6
petition is timely. As such, though Nunez filed his petition within one year after 7
Johnson , Nunez’s petition may on ly be considered timely if the right he asserts 8
was in fact recognized i n Johnson

. While Nunez asserts that the reasoning of 9
Johnson can apply to the pre

- Booker Guidelines, Johnson did not itself hold the 10
residual clause of the pre

- Booker Career Offender Guideline unconstitutionally 11

vague

. Johnson cannot be read so broadly, particularly in light of Supreme Court 12
cautions against expansively construing its precedents in th e AEDPA context, 13

and Justice Sotomayor’s concurring opinion in Beckles indicating that the 14
question raised by Nunez remains open in the Supreme Court . Because Johnson 15
has not recognized the right Nunez asserts, his Section 2255 motion is untimely. 16

17

1816 CONCLUSION 1

We hold that Johnson v. United States , 135 S. Ct. 2551 (2015) did not 2
recogni ze a constitutional right not to be sentenced under the residual clause of 3
the pre

- Booker Career Offender Guideline . The order and judgment of the district 4

court is therefore AFFIRMED. 5POOLER, Circuit Judge : 1
2 I agree with the legal analysis and conclusion of the majority opinion, but I 3
write separately to emphasize the injustice our decision today creates. 4
The Constitution guarantees that “[n]o person shall . . . be deprived of life, 5
liberty, or property, without due process of law.” U.S. Const. amend. V. A 6
statute, whether defining elements of crimes or fixing sentences, violates this 7
guarantee when it is “so vague that it fails to give ordinary people fair notice of 8

the conduct it punishes , or so standardless that it invites arbitrary enforcement .” 9
Johnson v. United States , 135 S. Ct. 2551, 2556 (2019). “The prohibition of 10
vagueness in criminal statutes is a well

- recognized requirement, consonant alike 11
with ordinary notions of f air play and the settled rules of law, and a statute that 12
flouts it violates the first essential of due process.” Id . (internal quotation marks 13
and citations omitted). 14
As the majority explains, Johnson struck down an identically worded 15

residual clause in the Armed Career Criminal Act as unconstitutionally vague. It 16
is clear, in my view, that “if a sequence of words that increases a person’s time in 17
prison is unconstitutionally vague in one legally binding provision, that same 18
sequence is unconstitutionall y vague if it serves the same purpose in another 192 legally binding provision.” Brown v. United States , 139 S. Ct. 14, 14 (2019) 1
(Sotomayor, J ., dissenting from denial of certiorari). But due to the precedent laid 2
out in the majority opinion, we are constrain ed in our ability to allow Nunez’s 3
seemingly meritorious claim to move forward. 4
Section 2255 petitioners are the only class of defendants who may raise th e 5
question of whether the residual clause in the pre

- Booker Career Offender 6
Guideline is unconstitutionally vague. As such, our decision “denies petitioners, 7
and perhaps more than 1,000 like them, a chance to challenge the 8
constitutionality of their sentenc es.” Brown , 139 S. Ct. at 14 (Sotomayor, J ., 9
dissenting from denial of certiorari). Therein lies the injustice. 10
I agree with Judge Raggi’s observation that Nunez’s crime was a 11
“heinous” one. But the Constitution’s protection against vague statutes applies 12

no less to a defendant convicted of severe conduct . If Nunez’s sentencing violates 13
due process , he should be afforded the opportunity to challenge it. Unless and 14
until the Supreme Court addresses whether Johnson applies to the mandatory 15
Guidelines, howeve r, petitioners like Nunez will be left with no procedural 16
mechanism by which to raise, and seek redress for, constitutional grievances tied 17
to their sentencings. 1818

- 1803

- p r Nunez v. United States

1 R EENA R AGGI , Circuit Judge , concurri ng: I join my colleagues in today unanimously affirming the denial of petitioner Miguel Nunez’s 28 U.S.C . § 2255 challenge to his 30

- year prison sentence for conspiratorial and substantive Hobbs Act robbery as untimely. I write separately only to state that I do not share my concurring colleague’s concern that this decision cr eates any “injustice” for Nunez by denying him the opportunity to pursue a vaguen ess challenge to the pre

- Booker use of a residual clause definition of “crime of violence” to identify him as a Career Offender with a Guidelines range of 151

– 188 months rather t han a non

Offender range of 121

– 151 months

. That is because Nunez’s sentence was not dictated by , or even anchored to, his Guidelines range. As the record makes plain, the district co urt sentenced Nunez to 30 years’ imprisonment

 almost double the high end of his Guidelines range

 based on heinous conduct committed during t he robbery that was not adequately factored into his Guidelines calculation

. Specifically, Nunez re peatedly raped and sexually assaulted a bound robbery victim

. Th e district court’s discussion of these circumstances leaves me with no doubt that, even if Nunez could show that vagueness in the residual clause did not permit him to be denominated a Career Offender under the Guidelines, that would make no difference to the district court’s decision to sentence him to 30 years.

I.
At the outset, let me note that I think it far from clear , even after Johnson v. United States , 135 S. Ct. 2551 (2015), that Nunez has a meritorious vagueness challenge to the residual clause of the Career Offender Guideline as applied prior to United States v. Booker , 543 U.S. 220 (2005 )

. See U.S.S.G. § § 4B1.1, 4B1.2 (a)(2) (1998)

. The Supreme18

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- p r Nunez v. United States

2 Court has ruled that the Guidelines, as advisorily applied after Booker , are not subject to vagueness challenges. S ee Beckles v. United States , 137 S. Ct. 886 (2017). Our court has not yet decided whether any different conclusion applies to the presumptively mandatory p re

Booker Guidelines. The Eleventh Circuit, however, ha s h eld that it does not. See In re Griffin , 823 F.3d 1350, 13 54

− 55 (11 th Cir. 2016). That court observed that a holding requiring the Guidelines to satisfy due process vagueness standards “differs fundamentally and qualitatively from a hold ing that . . . the ACCA sentencing statute [at issue in Johnson ]

 that increases the statutory penalty for the underlying new crime

 is substantively vague.” Id. at 1356. It

ex plained that, as applied to ACCA’s residual clause, Johnson ’s vagueness determination “requires the district court to reduce the enhanced sentence to at least the unenhanced applicable statutory maximum.” Id. at 1355.
In stark contrast, whether the Guidelines are mandatory

or advisory, the district court, even without the invalidated clause, could still impose a sentence within the same statutory penalty range and indeed the same sentence as before. In fact, in former mandatory guidelines cases, the resentencing would now be under an even more discretionary advisory system that would permit the district court to impose the same sentence.
Id. In Cross v. United States , 892 F.3d 288 (7 th Cir. 2018), the Seventh Circuit took a different view , but not n ecessarily in a way that helps Nunez

. 1 That court read Johnson to hold that “a person has a right not

1 We have expressly declined to follow Cross ’s reasoning with respect to the timeliness of a Johnson

- based vagueness challenge to the pre

- Booker Guidelines. See Panel Op. at 14

− 15

.18

- 1803

- p r Nunez v. United States

3 to have his sentence dictated by the unconstitutionally vague language of the mandatory residual clause

. ” Id. at 294 (emphasis in original)

. Declining to limit that right to sentencing statutes such as ACCA , the
court concluded that the Cross defendants were prejudiced by “an extended prison term . . . imposed on both men as a result of their designation as career offenders ” under the pre

- Booker Guidelines. Id. at 295. The emphasis Cross placed on the word “dictated” is significant. The defendants in that case were, in fact, sentenced within increased ranges dictated by their Career Offender designation

. But the court had no occasion in Cross to consider how, if at all, a defendant would be prejudiced by a pre

- Booker Career Offender designation that

 as in Nunez’s case

 did not “dictate , ” or even anchor, the sentence actually imposed. 2

II.

Nunez cannot here demonstrate prejudice

— much less injustice

— because his 30

- year prison sentence was not dic tated by th e Career Offender Guideline ’s residual clause definition of a violent crime. The record convincingly shows that , although Judge Kaplan relied on the residual clause to denominate Nunez a Career Offender

2 Like the Cross defendants, Nunez failed to raise a vagueness challenge to the Career Offender Guideline’s residual clause either in the district court or on appeal and, thus, must show cause and prejudice, or actual innocence , to pursue the argument on a § 2255 motion. See Bous ley v. United States , 523 U.S. 614, 621

− 22 (1998); Harrington v. United States , 689 F.3d 124, 129 (2d Cir. 2012). Even such a showing, however, might not be enough to allow Nunez to pursue his vagueness claim if a court were to find hi m to have waived the argument by stipulating in his plea agreement that his Hobbs Act robbery crimes of conviction qualified as violent felonies under the Career Offender Guideline. See United States v. Spruill , 808 F.3d 585, 597 (2d Cir. 2015) (explaining various circumstances that can manifest waiver, including where defendant “agrees to a course of a ction that he later claims was error”). For purposes of this concurrence , however, I do not assume waiver.18

- 1803

- p r Nunez v. United States

4 in calculating his Guideline range at 151

– 188 months , the judge did not feel compelled to sen tence Nunez within that range rather than the le sser 121

– 151 month non

- O ffender range

. Rather, Judge Kaplan deci ded that , in Nunez’s case, justice demanded a 30

- year sentence , far above

 indeed , almost double

 both these ranges

. In so concluding, Judge Kaplan made no reference to Nunez’s Career Offender designation or to the other convictions supporting that designation

. 3 Rather, he based the departure on Nunez’s he inous conduct in the course of the crimes of conviction , conduct not adequately accounted for by the Guidelines. This included Nunez repeatedly raping and sexually assaulting a bound female victim of the Hobbs Act robbery who, as a consequence, suffered s erious and years

- long psychological harm.

Th is court did not need to d iscuss this conduct in any detail to hold Nunez’ s § 2255 motion untimely

. But such a discussion cannot be avoided to explain why o ur decision today do es Nunez no injustice.

L ate on the night of February 14, 1994 , Nunez and two confederates (one male, one female) lay in wait for a couple t o return to their Bronx apartment with the cash proceeds of their florist business. When the couple reached their door, Nunez’s male

co nfederate grabbed the female victim f rom behind, placed his hand over her mouth, put a gun to her neck, and forced her into the apartment. Meanwhile, Nunez put a gun to the male victim’s head

3 To qualify for Career Offender designation, not only must a defendant’s instant offense of conviction be a felony crime of violence or a felony controlled substance offense, but also, the defendant must have two prior felony convictions for either a crime of violence or a controlled substance offense. Nunez concedes that his two prior New York first

- degree robbery convictions

— one committed at gunpoint, the other with a knife

— are for violent crimes. See United States v. Ojeda , 951 F.3d 66, 72 (2d Cir. 20 20).18

- 1803

- p r Nunez v. United States

5 and forced him inside

. In the apartment, the male vict im’s hands were tied behind his back

 tied so tightly as later to require surgery for him to regain their full use

. Meanwhile, t he female victim was taken into a bedroom where she was placed face down on a bed and bound hand and f oot by Nunez’s male confederate , who then threw pillows and blankets over her head, threatening to kill her if she tried
to look at his face.
With their victims thus restrained, the robbers proceeded to ransack the apartment, stealing cash , credit cards, beepers, liquor, and jewelry, including the female victim’s wedding ring.
For the female victim, however, the terror was by no means

over. Nunez entered the bedroom where she was restrained , pulled down her pants and proc eeded , on four separate occasions , to molest her sexually by digitally penetrating her vagina.

The male confederate also entered the bedroom and threatened to burn the woman’s business down and to injure her son

 whom he identified by name a nd business

 if she reported the robbery to the police.
Then, with all three robbers in the bedroom, Nunez twice rape d the terrified female victim, first vaginally and then anally. W h en he finished, Nunez’s ma le confederate took his turn, also raping the woman bo th vaginally and anally . These events reduced the three robbers to laughter. At sentencing, the district court took a much steelier view of things. Judge Kaplan described Nunez’s conduct during the ro bbery

as “barbaric,” A pp. 3 5 , “ exceptionally heinous, cruel, brutal and degrading , ” id. at 3 4 , and “close to torture, gratuitous infliction of injury and the prolonging of pain and humiliation,” id. He concluded18

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6 that a significant upward departure from Nunez’s Sentencing Guidelines range was warranted by U.S.S.G. §§ 5K2.0 (cases outside the “heartland” ), 5K2.3 (cases of extreme psychological injury to a victim), and 5K2.8 (cases of “unusually heinous, cruel, brutal, or degrading ” conduct toward the victim ). In deed, the district court emphasized that the extent of its departure did not depend on the cumulative effect of these Guidelines. He would depart to the same significant extent under any one of these Guidelines. In so stating, the district court observed that characterizing Nunez’s actions as “out of the heartland of robbery cases is such a vast understatement as to be absurd.” Id. at 35. Referencing the victim’s prolonged psychological injury, detailed in the Pre

- Sentence R eport and, therefore, requiring no elaboration, the district court stated that it could not “readily imagine a case that more readily fits into 5K2.8.” Id. (“Imagine what went through this victim’s mind, lying there going t hrough what this man subjected her to , over and over again”).

On this record , which so convincingly supports the district court’s upward departure to a 30

- year sentence, there is absolutely no reason to think that if vagueness in the residual clause did not permit Nunez to be identified as a Career Offender wi th a Guidelines range of 151

– 188 months, the district court would have sentenced him within the non

- o ffe nder Guidelines range of 121

– 151 mont h s, or even to a ny sentence less than 30 years

. T hus , insofar as that is Nunez’s argument, he cannot show prejudice, much less injustice. 4

4 Nunez’s inability to show prejudice makes it unnecessary for me to address whether he shows cause. Insofar as Nunez further argues that, regardless of prejudice, vagueness in the residual clause would mean he is “actually innocent” of being a Car eer Offen der, I am not convinced. Th e cases Nunez cites that apply the actual innocence standard to a defaulted Guidelines enhancement challenge

— whether before or after Booker

— all involve defendants claiming that they did not, in fact, commit the enhancin g predicate crimes. This comports with precedent18

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7 T o the extent the district court did anchor its 30

- year sentence to a Guidelines range, it was not to the challenged 151

– 188 month range for Hobbs Act robbery , but rather to the 292

– 365 month range that would ap ply to Aggravated Sexual Abuse , 18 U.S.C. § 2241 (a)

 a crime comparable to the rapes and sexual assaults aggravating Nunez’s Hobbs Act robbery and informing the district court’s departure decision

. Nunez does not challenge the comparison, either generally or specifically for employing a Career Offender enhancement in calculating the resulting 292

– 365 month range

. In fact, any such Career Offender challenge would be to no avail because force is an el ement of § 2241 (a) Aggravated Sexual Abuse , making that comparator offense a crime of violence under U.S.S.G. § 4B1.2(a) ( 1), without regard to the residual clause definition of U.S.S.G. § 4B1.2(a)(2 )

. Moreover, t he district court did not reference
t he Aggravated Sexual A buse range as somehow dictating its 30

- year sentence. R ather, it drew the comparison simply to demonstrate th e reasonableness of its decision to impose a sentence nearly twice the high end of the 151

– 188 month range applicable to Nunez’s robbery crimes of conviction

. In sum, wh atever vagueness challenge might be made to U.S.S.G. § 4B1.2(a)(2)’s residual clause definition of a crime of

which makes clear that “actual innocence” refers to factual, not legal, innocence. See Bousley v. United States , 523 U.S. at 623 ; Poindexter v. Nash , 333 F.3d 372, 381 (2d Cir. 2003) (actual innocence “normally means simply that the defen d ant did not commit the crime”). Thus, I doubt that Nunez can use legal principles, such as facial vagueness or categorical construction, to show that he is actually innocent of having committed a “violent crime” of conviction when the facts of his case demonstrate violence beyond any doubt. See Poindexter v. Nash , 333 F.3d at 382 (explaining actual innocence exception does not apply where petitioner “merely makes [a] legal argument”); Darby v. Uni ted States , 508 F. App’x 69 , 71 (2d Cir. 2013) (explaining that defendant’s “essentially legal argument that he is innocent of the [career offender] sentencing enhancement because the district court misclassified his predicate offenses . . . is insufficien t to trigger the actual innocence exception”).18

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8 violence , the panel ’s rejection of Nunez’s challenge a s untimely does him no injustice because the record plainly shows that his 30

- year sentence was not dictated by that Guideline . Rather, th e sentence represented a significant, but entirely justified, departure from both the challenged a nd urged Guideline ranges based on Nunez and his confederate repeatedly raping and sexually assaulting their bound robbery victim.

III. There is a final reason why I think the panel decision today does Nunez no injustice : the record demonstrates that even a successful vagueness challenge would not secure him a reduced sentence. A s already shown , t he district court’s upward departure to a 30

- year sentence was not anchored to Nunez’s 151

– 188 month Career Offender range bu t , rather , to the fact that his cruel and brutal conduct during the robbery equated to Aggravated Sexual Abuse. There is no reason to think the district court would take a different view o f this conduct or impose a lesser sentence if the Guideline’s residual clause definition of a violent crime were declared void for vagueness

. That conclusion is only reinforced by the fact that, on remand, Nunez could not be sentenced under the presumptively mandatory Guidelines regime that the Supreme Court declared unconstitutional in Booker. Rather, any resentencing would have to be under advisory Guidelines, which afford the district court more

 not less

 discretion to impose sentences outside the Guidelines. See In re Griffin , 823 F.3d at 1355. Moreover, that discretion would allow the district court to

c onsider whether Nunez’s Hobbs Act robbery crimes, even if not categorically violent under the element s clause of the Career Offender Guidelin e , w ere nevertheless actually so violent as to inform statutory sentencing factors and thereby warrant a non

- Guidelines sentence

.18

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9 See 1 8 U.S.C. § 3553(a) (2)(A) (referencing seriousness of offense and need to provide just punishment for that offense); id. § 3553(a)(2)(B) (referencing need to afford adequate deterrence for defendant’s criminal conduct); id. § 3553(a)(2)(C) ( referencing need to protect public from further crimes of defendant) ; see also id. § 3661 (prohibi ti ng any limitation on information concerning “background, character, and conduct” of defendant that district court may consider in imposing appropriate sentence )

. 5

***

T o conclude, the panel’s rejection of Nunez’s vagueness challenge as untimely does him no injustice for three reasons. First, it is not eviden t that a vagueness challenge can be made to the pre

Booker Guidelines . Second, even giving Nunez the benefit of th e doubt on that point, he cannot show prejudice because his challenged 151

– 188 month Guideline s range did not dictate the 30

- year sentence imposed by the district court. Rather, the district court based that significantly higher sentence on conduct

 repeated rapes and sexual

5 Because Hobbs Act robbery can be committed by using force against persons or property, it reaches more broadly than the Career Offender Guideline’s elements clause, which is limited to offenses using force a gainst persons. Compare 18 U.S.C. § 1951 (a) , with U.S.S.G. § 4B1.2(a)(1); cf. United States v. Hill , 890 F.3d 51 (2018) (recognizing Hobbs Act robbery as crime of violence under ACCA, whose element clause references force against person or property). It was for this reason that, despite the actual violence of Nunez’s Hobbs Act robbery, the district co urt could not find it a categorical crime of violence under § 4B1.2(a)(1) and, instead, relied on § 4B1.2(a)(2)’s residual clause. Booker does not change the categorical application of the Career Offender Guideline, but it does mean that, in exercising th eir sentencing discretion pursuant to 18 U.S.C. § 3553(a), district courts can consider whether a defendant committed a crime that is not categorically violent in a particularly violent way. Although definitions of violent crime continue to apply categori cally after Booker , district courts are free to consider the actual violence of a defendant’s criminal conduct in deciding whether to impose a within

Guidelines sentence.18

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10 assaults of a robbery victim

 that was not adequately factored into the challenged range, and that was more akin to Aggravated Sexual Abuse , a crime that is categorically violent based on it s elements , without reference to the challenged residual clause . Third, because the conduct supporting the district court’s departure decision would not be mitigated by a successful vagueness challenge to the Guideline’s residual clause, and because, on any remand , the district
court would have more, not less, discretion to impose a non

Guidelines sentence, I think it clear that remand would not secure Nunez any lesser sentence. Accordingly, I join in the panel decision to affirm without any reservation about doing Nunez an injustice.