18-1803-pr

Nunez v. United States

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 ____________________

4

5 August Term, 2019

6

7 (Argued: August 29, 2019 Decided: March 30, 2020)

8

9 Docket No. 18-1803-pr

10

11 ____________________

12

13 MIGUEL NUNEZ,

14

15 Petitioner-Appellant,

16

17 v.

18

19 UNITED STATES OF AMERICA,

20

21 Respondent-Appellee.

22

23 ____________________

24

25 Before: POOLER, PARKER, and RAGGI, Circuit Judges.

26

27 Petitioner Miguel Nunez appeals from a judgment of the United States 

28 District Court for the Southern District of New York (Lewis A. Kaplan, J.) 

29 denying his 28 U.S.C. § 2255 motion as untimely. The district court held that 

30 Nunez could not show that his motion was timely pursuant to 28 U.S.C. § 
2

1 2255(f)(3) because the Supreme Court’s decision in Johnson v. United States, 135 S. 

2 Ct. 2551 (2015), did not recognize a retroactive right not to be sentenced based 

3 upon the residual clause in the Career Offender Guideline of the pre-Booker

4 Sentencing Guidelines. We hold that the district court properly concluded that 

5 Johnson did not give rise to the right Nunez asserts and, therefore, correctly 

6 denied his Section 2255 motion as untimely.

7 Affirmed.

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

9 ____________________

10 EDWARD S. ZAS, Federal Defenders of New York, Inc., 

11 Appeals Bureau, New York, NY, for Petitioner-Appellant 

12 Miguel Nunez.

13

14 NATHAN REHN, Assistant United States Attorney 

15 (Anna M. Skotko, Assistant United States Attorney, on 

16 the brief), for Geoffrey S. Berman, United States Attorney 

17 for the Southern District of New York, New York, NY,

18 for Respondent-Appellee.

19

20

21

22

23

24

25

26
3

1 POOLER, Circuit Judge:

2 Petitioner Miguel Nunez appeals from the May 24, 2018 judgment of the 

3 United States District Court for the Southern District of New York (Lewis A. 

4 Kaplan, J.) denying as untimely Nunez’s 28 U.S.C. § 2255 motion challenging his 

5 February 7, 2000 sentence for substantive and conspiratorial Hobbs Act robbery. 

6 See 18 U.S.C. § 1951(a). Nunez is currently serving 360 months’ imprisonment for 

7 these crimes, a significant upward departure from the 151-to-188 month 

8 Guidelines range calculated by the district court under the presumptively 

9 binding pre-Booker Sentencing Guidelines. See United States v. Booker, 543 U.S. 220 

10 (2005). That Guidelines range was dictated by the Career Offender Guideline, see

11 U.S.S.G. § 4B1.1, which the district court applied upon finding that Nunez’s 

12 present, and two prior, convictions were all for “crime[s] of violence,” as defined 

13 in the Guideline’s residual clause, id. § 4B1.2. Nunez argues that this residual 

14 clause is unconstitutionally vague, and thus, his sentencing violates due process. 

15 In support, Nunez relies on Johnson v. United States, 135 S. Ct. 2551 (2015), which 

16 struck down an identically worded provision of the Armed Career Criminal Act 

17 as unconstitutionally vague. The issue presented to us on appeal is whether the 

18 right Nunez asserts was recognized in Johnson, rendering his motion timely
4

1 pursuant to 28 U.S.C. § 2255(f)(3), or whether the right he asserts has yet to be 

2 recognized, rendering his motion untimely. We hold that Johnson did not itself 

3 render the residual clause of the pre-Booker Career Offender Guideline

4 unconstitutionally vague and, thus, did not recognize the right Nunez asserts. 

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

6 untimely. 

7 BACKGROUND

8 I. Nunez’s Conviction

9 On October 5, 1999, Miguel Nunez pled guilty to Hobbs Act robbery and 

10 conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). 

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

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

13 in cash, along with other personal items of value. During the course of the 

14 robbery, Nunez and one of his co-conspirators tied both victims up with rope 

15 and raped the female proprietor of the florist business. 

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

17 offender under the Sentencing Guidelines if,
5

1 (1) the defendant was at least eighteen years old at the time the 

2 defendant committed the instant offense of conviction, (2) the instant 

3 offense of conviction is a felony that is either a crime of violence or a 

4 controlled substance offense, and (3) the defendant has at least two 

5 prior felony convictions of either a crime of violence or a controlled 

6 substance offense. 

7

8 U.S.S.G. § 4B1.1 (1998). Nunez stipulated that he was eighteen years old at the 

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

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

11 The Career Offender Guideline defined a crime of violence as “any offense 

12 under federal or state law, punishable by imprisonment for a term exceeding one 

13 year that—”

14 (1) has as an element the use, attempted use, or threatened use of physical 

15 force against the person of another, or

16 (2) is burglary of a dwelling, arson, or extortion, involves the use of 

17 explosives, or otherwise involves conduct that presents a serious potential risk of 

18 physical injury to another.”

19

20 U.S.S.G. § 4B1.2(a) (1998) (emphasis added). The first definition is known as the 

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

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

23 clause. The district court concluded that Nunez’s Hobbs Act robbery, and two 
6

1 prior felony convictions, were “crimes of violence” under the residual clause. 

2 Thus, Nunez constituted a career offender. 

3 As a career offender, Nunez’s Guidelines range was 151 to 188 months of 

4 imprisonment, as opposed to 121 to 151 months. The district court departed 

5 upwards from even this higher Guidelines range under provisions of the 

6 Guidelines that permit doing so when a defendant has caused extreme 

7 psychological injury in the victim and the conduct was extreme. Accordingly, the 

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

9 months for Hobbs Act conspiracy, for a total of 360 months of imprisonment. On 

10 appeal, this court upheld the sentence. United States v. Nunez, 8 F. App’x 81 (2d 

11 Cir. 2001). 

12 II. Subsequent Supreme Court Decisions

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

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

15 Guidelines was unconstitutional, see id. at 245−46, and to avoid that result, 

16 construed the Guidelines as advisory, see id. at 245, 259.

17 More recently, the Supreme Court decided Johnson v. United States, 135 S. 

18 Ct. 2551 (2015). The Court in Johnson held that “imposing an increased sentence 
7

1 under the residual clause of the Armed Career Criminal Act”which contained 

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

3 Offender Guideline“violate[d] the Constitution’s guarantee of due process” 

4 because the clause was unconstitutionally vague. Id. at 2563. Using the rationale

5 in Johnson, the Court subsequently struck down similarly worded residual 

6 clauses in the crime of violence definitions of the Immigration and Nationality 

7 Act, see Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and in 18 U.S.C. § 924(c)(3)(B), 

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

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

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

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

12 Guideline’s residual clause was void for vagueness, making his sentencing 

13 pursuant to the clause unconstitutional. Id. at 890-91. The Supreme Court rejected 

14 the argument, refusing to extend Johnson’s reasoning to the post-Booker

15 Guidelines. Id. at 891−92. The Court explained that unlike the ACCA’s residual 

16 clause, which mandated certain, higher sentence ranges, “the advisory 

17 Guidelines do not fix the permissible range of sentences.” Id. at 892. The advisory 

18 Guidelines were for this reason not subject to a vagueness challenge. Id. In her 
8

1 concurring opinion, Justice Sotomayor noted that “[t]he Court’s adherence to the 

2 formalistic distinction between mandatory and advisory rules at least leaves 

3 open the question whether defendants sentenced to terms of imprisonment 

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

5 their sentences.” Id. at 903 n.4 (Sotomayor, J., concurring in the judgment)

6 (internal quotation marks and citation omitted). 

7 III. Nunez’s Section 2255 Motion

8 On June 21, 2016, eighteen years after his federal conviction, but less than 

9 one year after Johnson was decided, Nunez filed a motion under 28 U.S.C. § 2255

10 to vacate his 30-year sentence. He argued that Johnson renders the residual clause 

11 of the pre-Booker Career Offender Guideline unconstitutionally vague, so he 

12 should not have been sentenced as a career offender. See Nunez v. United States, 

13 No. 16-cv-4742, 2018 WL 2371714, at *1-2 (S.D.N.Y. May 24, 2018). The district 

14 court decided the motion was untimely because “the Supreme Court has not 

15 itself extended its holding in Johnson to the pre-Booker guidelines.” Id. at *2.

16 Nunez timely appealed. 

17
9

1 DISCUSSION

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

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

4 Cir. 2005).

5 Motions under Section 2255 are subject to a one-year statute of limitations 

6 that runs from several possible dates, only one of which is relevant here: “[T]he 

7 date on which the right asserted was initially recognized by the Supreme Court, 

8 if that right has been newly recognized by the Supreme Court and made 

9 retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). 

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

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

12 right he invokes. Nunez argues that his Section 2255 motion challenging a career13 offender sentence imposed under the mandatory Guidelines asserts the same due 

14 process right recognized in Johnson. He argues that, like the ACCA’s residual 

15 clause, the residual clause of the mandatory Career Offender Guideline “fixed” 

16 his sentencing range and was subject to the same concerns articulated in Johnson. 

17 Because the ACCA and residual clause of the Career Offender Guideline are 

18 identically worded and interpreted, Nunez claims the holding in Johnson applies 
10

1 equally to the residual clause in the Guideline and, thus, compels the conclusion 

2 that Johnson recognized the right he asserts. 

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

4 clause of the mandatory Career Offender Guideline vague, as required for 

5 Section 2255 purposes. Our decision aligns with that of the majority of circuits to 

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

7 United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018); Russo v. United States, 902 

8 F.3d 880 (8th Cir. 2018); United States v. Green, 898 F.3d 315 (3d Cir. 2018); United 

9 States v. Greer, 881 F.3d 1241 (10th Cir. 2018); United States v. Brown, 868 F.3d 297 

10 (4th Cir. 2017); Raybon v. United States, 867 F.3d 625 (6th Cir. 2017). 

11 In coming to the same conclusion, we are mindful that the Supreme Court 

12 has admonished lower courts “against framing [its] precedents at . . . a high level 

13 of generality” in reviewing claims under the Antiterrorism and Effective Death 

14 Penalty Act of 1996 (“AEDPA”), of which Section 2255 is a component. See Lopez 

15 v. Smith, 574 U.S. 1, 4, 6 (2014) (internal quotation marks and citation omitted);

16 Nevada v. Jackson, 569 U.S. 505, 512 (2013). Instead, the Court has required 

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

18 case.” Lopez, 574 U.S. at 6. 
11

1 Johnson by its own terms addresses only the ACCA. The Court articulated 

2 its holding in that case specifically with regard to the ACCA: “We hold that 

3 imposing an increased sentence under the residual clause of the Armed Career 

4 Criminal Act violates the Constitution’s guarantee of due process.” 135 S. Ct. at 

5 2563 (emphasis added). In addition, the Court cited exclusively to cases that dealt 

6 with the residual clause of the ACCA. See id. at 2558-60 (citing Sykes v. United 

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

8 United States, 550 U.S. 192 (2007)). Furthermore, in Welch v. United States, 136 S. 

9 Ct. 1257 (2016), which applied Johnson retroactively, the Court referred only to 

10 the effect of its holding on the ACCA. Id. at 1265 (“By striking down the residual 

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

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

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

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

15 ACCA in Johnson is reinforced by the fact that the Court has considered 

16 challenges to identical residual clauses in other statutes piecemeal. See Session v. 

17 Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139 S. Ct. 2319 (2019). Nor 

18 were the applications in these cases necessarily straightforward. As the Ninth 
12

1 Circuit observed, “[i]t is not always obvious whether and how the Supreme 

2 Court will extend its holdings to different contexts,” and in Dimaya, “it took a 

3 lengthy discussion to reach [the] conclusion, and four justices disagreed.” United 

4 States v. Blackstone, 903 F.3d at 1026. These decisions further undermine Nunez’s 

5 contention that Johnson in and of itself dictates the result of a vagueness 

6 challenge to the residual clause in the pre-Booker Career Offender Guideline. 

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

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

9 to argue that the pre-Booker mandatory Guidelines are so subject. This, however, is 

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

11 Beckles explained that the question remains open. See id. at 903 n.4 (Sotomayor, J., 

12 concurring in the judgment) (stating that the Court “leaves open the question 

13 whether defendants sentenced to terms of imprisonment before our decision in 

14 United States v. Booker—that is, during the period in which the Guidelines did fix 

15 the permissible range of sentences—may mount vagueness attacks on their 

16 sentences” (internal quotation marks and citations omitted)). In sum, while we 

17 agree that Beckles does not foreclose a vagueness challenge to the mandatory 
13

1 Sentencing Guidelines, we cannot agree with Nunez that Johnson articulated the 

2 right he seeks to assert.

3 Nunez attempts to circumvent this inevitable conclusion by arguing that 

4 any discussion of how the Supreme Court defines the right in Johnson is not 

5 relevant to the timeliness of his petition. He relies on Dodd v. United States, 545 

6 U.S. 353 (2005) and the Seventh Circuit’s decision in Cross v. United States, 892 

7 F.3d 288 (7th Cir. 2018). We are not persuaded. 

8 Dodd is inapplicable here. That case established that a petitioner is required 

9 to bring a claim within one year after the Supreme Court announces a new rule—

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

11 545 U.S. at 358-59. In deciding so, the Supreme Court noted that the first clause in 

12 Section 2255(f)(3), which states “the date on which the right asserted was initially 

13 recognized by the Supreme Court,” is “the operative date.” Id. at 358. The second 

14 clause, which states “if that right has been newly recognized by the Supreme 

15 Court and made retroactively applicable to cases on collateral review,” merely 

16 imposes a condition on the applicability of the subsection. Id. Nunez reads Dodd 

17 as requiring us to focus on the first clause of Section 2255(f)(3) regardless of 

18 whether the petitioner has framed the right asserted in a manner consistent with 
14

1 how the Supreme Court articulated it. Dodd cannot, however, be stretched to 

2 accommodate this interpretation. No aspect of Dodd supports Nunez’s 

3 interpretation that a defendant moving for Section 2255 relief may assert any 

4 right suggested by the Supreme Court within the past year for his motion to

5 qualify as timely. Dodd simply stands for the proposition that the one-year 

6 statute of limitations period begins to run following the Supreme Court’s 

7 recognition of a right, as opposed to the Court’s retroactive application of the 

8 right. Nunez’s invocation of Dodd is unavailing. 

9 Nor are we persuaded by Cross v. United States, 892 F.3d 288 (7th Cir. 2018), 

10 the only Circuit decision holding that a Section 2255 motion challenging the 

11 residual clause of the pre-Booker Career Offender Guidelines is timely if filed 

12 within a year of Johnson. Cross, 892 F.3d at 293-94. In coming to this conclusion, 

13 the Seventh Circuit reasoned that the government’s argument that Johnson did 

14 not recognize the right asserted because the Supreme Court has not extended the 

15 logic of Johnson to the pre-Booker mandatory guidelines “suffers from a 

16 fundamental flaw. It improperly reads a merits analysis into the limitations 

17 period.” Id. at 293. But this conclusion “effectively reads ‘recognized’ out of 28 

18 U.S.C. § 2255(f)(3) by not engaging in an inquiry into whether the right asserted 
15

1 by the petitioner is the same right that was recognized by the Supreme Court.” 

2 United States v. Green, 898 F.3d 315, 322 (3d Cir. 2018). For this reason, we decline 

3 to adopt the Seventh Circuit’s reasoning in Cross. 

4 Rather, we join the majority of our sister circuits and hold that Section

5 2255(f)(3) requires courts to consider whether the right a petitioner asserts has 

6 been recognized by the Supreme Court as part and parcel of deciding whether a 

7 petition is timely. As such, though Nunez filed his petition within one year after

8 Johnson, Nunez’s petition may only be considered timely if the right he asserts 

9 was in fact recognized in Johnson. While Nunez asserts that the reasoning of 

10 Johnson can apply to the pre-Booker Guidelines, Johnson did not itself hold the

11 residual clause of the pre-Booker Career Offender Guideline unconstitutionally 

12 vague. Johnson cannot be read so broadly, particularly in light of Supreme Court 

13 cautions against expansively construing its precedents in the AEDPA context,

14 and Justice Sotomayor’s concurring opinion in Beckles indicating that the 

15 question raised by Nunez remains open in the Supreme Court. Because Johnson 

16 has not recognized the right Nunez asserts, his Section 2255 motion is untimely. 

17

18
16

1 CONCLUSION

2 We hold that Johnson v. United States, 135 S. Ct. 2551 (2015) did not 

3 recognize a constitutional right not to be sentenced under the residual clause of

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

5 court is therefore AFFIRMED. 
1 POOLER, Circuit Judge:

2

3 I agree with the legal analysis and conclusion of the majority opinion, but I 

4 write separately to emphasize the injustice our decision today creates. 

5 The Constitution guarantees that “[n]o person shall . . . be deprived of life, 

6 liberty, or property, without due process of law.” U.S. Const. amend. V. A 

7 statute, whether defining elements of crimes or fixing sentences, violates this 

8 guarantee when it is “so vague that it fails to give ordinary people fair notice of 

9 the conduct it punishes, or so standardless that it invites arbitrary enforcement.” 

10 Johnson v. United States, 135 S. Ct. 2551, 2556 (2019). “The prohibition of 

11 vagueness in criminal statutes is a well-recognized requirement, consonant alike 

12 with ordinary notions of fair play and the settled rules of law, and a statute that 

13 flouts it violates the first essential of due process.” Id. (internal quotation marks 

14 and citations omitted). 

15 As the majority explains, Johnson struck down an identically worded 

16 residual clause in the Armed Career Criminal Act as unconstitutionally vague. It 

17 is clear, in my view, that “if a sequence of words that increases a person’s time in 

18 prison is unconstitutionally vague in one legally binding provision, that same 

19 sequence is unconstitutionally vague if it serves the same purpose in another 
2

1 legally binding provision.” Brown v. United States, 139 S. Ct. 14, 14 (2019) 

2 (Sotomayor, J., dissenting from denial of certiorari). But due to the precedent laid 

3 out in the majority opinion, we are constrained in our ability to allow Nunez’s 

4 seemingly meritorious claim to move forward. 

5 Section 2255 petitioners are the only class of defendants who may raise the

6 question of whether the residual clause in the pre-Booker Career Offender 

7 Guideline is unconstitutionally vague. As such, our decision “denies petitioners, 

8 and perhaps more than 1,000 like them, a chance to challenge the 

9 constitutionality of their sentences.” Brown, 139 S. Ct. at 14 (Sotomayor, J., 

10 dissenting from denial of certiorari). Therein lies the injustice. 

11 I agree with Judge Raggi’s observation that Nunez’s crime was a 

12 “heinous” one. But the Constitution’s protection against vague statutes applies

13 no less to a defendant convicted of severe conduct. If Nunez’s sentencing violates 

14 due process, he should be afforded the opportunity to challenge it. Unless and 

15 until the Supreme Court addresses whether Johnson applies to the mandatory 

16 Guidelines, however, petitioners like Nunez will be left with no procedural 

17 mechanism by which to raise, and seek redress for, constitutional grievances tied 

18 to their sentencings.
18-1803-pr

Nunez v. United States

1

REENA RAGGI, Circuit Judge, concurring:

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 creates any 

“injustice” for Nunez by denying him the opportunity to pursue a 

vagueness 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 than a nonOffender 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 court sentenced Nunez to 30 years’

imprisonmentalmost double the high end of his Guidelines 

rangebased on heinous conduct committed during the robbery that 

was not adequately factored into his Guidelines calculation. 

Specifically, Nunez repeatedly raped and sexually assaulted a bound

robbery victim. The 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 Supreme 
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Nunez v. United States

2

Court has ruled that the Guidelines, as advisorily applied after Booker, 

are not subject to vagueness challenges. See Beckles v. United States, 

137 S. Ct. 886 (2017). Our court has not yet decided whether any 

different conclusion applies to the presumptively mandatory preBooker Guidelines. The Eleventh Circuit, however, has held that it 

does not. See In re Griffin, 823 F.3d 1350, 1354−55 (11th Cir. 2016). That 

court observed that a holding requiring the Guidelines to satisfy due 

process vagueness standards “differs fundamentally and 

qualitatively from a holding 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 

explained 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 (7th Cir. 2018), the Seventh 

Circuit took a different view, but not necessarily 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.
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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 dictated by the 

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 Bousley 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 him 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 action that he 

later claims was error”). For purposes of this concurrence, however, I do not 

assume waiver.
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Nunez v. United States

4

in calculating his Guideline range at 151–188 months, the judge did 

not feel compelled to sentence Nunez within that range rather than 

the lesser 121–151 month non-Offender range. Rather, Judge Kaplan 

decided 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 heinous 

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 serious and 

years-long psychological harm. 

This court did not need to discuss this conduct in any detail to 

hold Nunez’s § 2255 motion untimely. But such a discussion cannot 

be avoided to explain why our decision today does Nunez no 

injustice. 

Late on the night of February 14, 1994, Nunez and two 

confederates (one male, one female) lay in wait for a couple to return 

to their Bronx apartment with the cash proceeds of their florist 

business. When the couple reached their door, Nunez’s male 

confederate grabbed the female victim from 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. 2020). 
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Nunez v. United States

5

and forced him inside. In the apartment, the male victim’s hands 

were tied behind his backtied so tightly as later to require surgery

for him to regain their full use. Meanwhile, the female victim was 

taken into a bedroom where she was placed face down on a bed and

bound hand and foot 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 proceeded, 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 and businessif she reported the robbery to the 

police.

Then, with all three robbers in the bedroom, Nunez twice raped 

the terrified female victim, first vaginally and then anally. When he 

finished, Nunez’s male confederate took his turn, also raping the 

woman both 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 robbery 

as “barbaric,” App. 35, “exceptionally heinous, cruel, brutal and 

degrading,” id. at 34, and “close to torture, gratuitous infliction of 

injury and the prolonging of pain and humiliation,” id. He concluded 
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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). Indeed, 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 Report 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 through 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 with a Guidelines range 

of 151–188 months, the district court would have sentenced him 

within the non-offender Guidelines range of 121–151 months, or even 

to any sentence less than 30 years. Thus, 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 Career Offender, I am not convinced. The 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 enhancing predicate crimes. This comports with precedent 
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Nunez v. United States

7

To 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 apply 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 element 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, the district court did not reference 

the Aggravated Sexual Abuse range as somehow dictating its 30-year 

sentence. Rather, it drew the comparison simply to demonstrate the 

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, whatever 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 defendant 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. United 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 insufficient to trigger the actual innocence exception”).
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violence, the panel’s rejection of Nunez’s challenge as untimely does 

him no injustice because the record plainly shows that his 30-year 

sentence was not dictated by that Guideline. Rather, the sentence 

represented a significant, but entirely justified, departure from both 

the challenged and 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. As 

already shown, the district court’s upward departure to a 30-year 

sentence was not anchored to Nunez’s 151–188 month Career 

Offender range but,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 of 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 

consider whether Nunez’s Hobbs Act robbery crimes, even if not 

categorically violent under the elements clause of the Career Offender 

Guideline,were nevertheless actually so violent as to inform statutory 

sentencing factors and thereby warrant a non-Guidelines sentence. 
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See 18 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 

(prohibiting any limitation on information concerning “background, 

character, and conduct” of defendant that district court may consider 

in imposing appropriate sentence).5 

***

To conclude, the panel’s rejection of Nunez’s vagueness 

challenge as untimely does him no injustice for three reasons. First, it 

is not evident that a vagueness challenge can be made to the preBooker Guidelines. Second, even giving Nunez the benefit of the

doubt on that point, he cannot show prejudice because his challenged 

151–188 month Guidelines 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 against 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 court 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 

their 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 categorically after Booker, district courts are free to consider the actual 

violence of a defendant’s criminal conduct in deciding whether to impose a withinGuidelines sentence. 
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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 its 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 nonGuidelines 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.