In re: Creadell Hubbard

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-276
In Re: CREADELL HUBBARD,
Movant.
On Motion under 28 U.S.C. § 2244 for Order Authorizing District
Court to Consider Second or Successive Application for Relief
under 28 U.S.C. § 2255 in the United States District Court for
the Eastern District of North Carolina, at Raleigh. Terrence W.
Boyle, District Judge. (5:88-cr-00040-BO-1)
Argued: January 28, 2016 Decided: June 8, 2016
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Motion granted by published opinion. Judge Gregory wrote the
opinion, in which Judge Harris and Senior Judge Davis joined.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Movant. Seth Morgan Wood, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Respondent. ON
BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh,
North Carolina, for Movant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Respondent.

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GREGORY, Circuit Judge:
Movant Creadell Hubbard seeks pre-filing authorization to
pursue a successive § 2255 petition for habeas relief. For the
reasons that follow, we grant his motion.
I.
On July 19, 1988, Creadell Hubbard was indicted on the
following numbered criminal counts: (1) armed bank robbery, 18
U.S.C. § 2113(a) & (d); (2) carrying a firearm during a crime of
violence, id. § 924(c)(1) & (3); (3) possessing stolen money,
id. § 2113(c) & (d); and (4) conspiracy to possess stolen money,
id. Hubbard was convicted by a jury on all four counts. The
district court determined at sentencing that Hubbard was a
career offender under U.S. Sentencing Guidelines Manual § 4B1.1
(U.S. Sentencing Comm’n 1988) (“Sentencing Guidelines”) because
two of his prior convictions were for “crime[s] of violence.”
United States v. Hubbard, No. 89-5146, 1990 WL 194520, at *2
(4th Cir. Dec. 10, 1990) (unpublished). The prior convictions
were for second-degree murder and Kentucky third-degree
burglary. Id. at *3. Counts 1, 3, and 4 were merged for
sentencing purposes, and the district court imposed a 327-month
term of imprisonment for those counts, along with a consecutive
sixty-month prison term for Count 2. In addition, the district
court imposed a three-year term of supervised release.

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Hubbard timely appealed to this Court, citing as error the
district court’s (1) failure to sever his trial from that of his
codefendant; (2) denial of his motion for judgment of acquittal
for insufficiency of the evidence; and (3) finding that Kentucky
third-degree burglary was a predicate crime of violence
supporting his career-offender status. Id. at *1-3. Hubbard’s
convictions and sentence were affirmed. Id. at *2, *4. In
April 1997, Hubbard filed a motion to vacate under 28 U.S.C.
§ 2255. Proceedings on that motion ultimately resulted in
summary judgment against Hubbard and dismissal of his subsequent
appeal to this Court. United States v. Hubbard, No. 99-7147,
2000 WL 328084, at *1 (4th Cir. Mar. 29, 2000) (unpublished).
In August 2015, Hubbard filed a pro se motion with this
Court seeking an order authorizing the district court to
consider a successive § 2255 motion, citing Johnson v. United
States, 135 S. Ct. 2551 (2015). We now address that motion.
II.
Successive petitions for federal habeas corpus review under
§ 2255 may not be filed in a district court without prior
approval from a circuit court of appeals. 28 U.S.C. § 2255(h);
In re Vassell, 751 F.3d 267, 268-69 (4th Cir. 2014). In
deciding whether to grant the motion for pre-filing
authorization, this Court must determine whether it relies on

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(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme
Court, that was previously unavailable.
§ 2255(h). It is the latter of these that Hubbard seeks to
show.
Hubbard argues that the Supreme Court’s decision in Johnson
produced a new rule of constitutional law made retroactive by
that Court, and that he is entitled to seek relief under the new
rule. While his motion was pending, the Supreme Court decided
Welch v. United States, 136 S. Ct. 1257 (2016), which confirmed
Hubbard’s position that the rule in Johnson is retroactive. Id.
at 1265. With the retroactivity of Johnson established, it
remains for this Court to determine whether the rule can support
Hubbard’s habeas claims.
Hubbard argues that the holding in Johnson can provide him
relief in two ways. First, he seeks to apply Johnson to
eliminate his conviction for carrying a firearm during a crime
of violence (Count 2), arguing that federal armed bank robbery
(Count 1 and the predicate for Count 2) is no longer a crime of
violence under the rule established in Johnson. Second, he
seeks to challenge his career-offender status by arguing that,
under Johnson, Kentucky third-degree burglary no longer

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qualifies as a crime of violence under the Sentencing
Guidelines. Since Hubbard’s motion was filed, this Court has
decided, consonant with our precedent, that federal armed bank
robbery is a crime of violence, specifically under the “force
clause” of 18 U.S.C. § 924(c)(3), and that the holding in
Johnson is inapplicable. United States v. McNeal, 818 F.3d 141,
151-57 (4th Cir. 2016). As a result, the only one of Hubbard’s
claims that remains viable is his argument that his Kentucky
third-degree burglary conviction is no longer a predicate for
establishing his career-offender status.
In analyzing the motion, we need not decide whether Hubbard
will ultimately prevail on his claim, only whether he is
entitled to pursue a successive claim. In re Williams, 330 F.3d
277, 282 (4th Cir. 2003). At this stage, the moving party need
only “make[] a prima facie showing that the application
satisfies the requirements of [§ 2244]” to gain pre-filing
authorization. 28 U.S.C. § 2244(b)(3)(C).1 Thus, Hubbard only
needs to show that he “presents a claim that ‘relies on a
[qualifying] new rule of constitutional law,’” In re Vassell,
751 F.3d at 271 (quoting § 2244(b)(2)(A)) (alteration in
Vassell) (emphasis added), and that he makes “a sufficient
1 While Hubbard’s motion relies on § 2255, that provision
incorporates by reference the factors listed in § 2244.

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showing of possible merit to warrant a fuller exploration by the
district court,” Williams, 330 F.3d at 281 (citation and
internal quotation marks omitted).
We now turn to the substance of Hubbard’s remaining claim.
III.
In 2015, the Supreme Court struck the residual clause of
the Armed Career Criminal Act (“ACCA”) for being
unconstitutionally vague in violation of the Due Process Clause
of the Fifth Amendment. Johnson, 135 S. Ct. at 2555-57. “The
void-for-vagueness doctrine prohibits the government from
imposing sanctions ‘under a criminal law so vague that it fails
to give ordinary people fair notice of the conduct it punishes,
or so standardless that it invites arbitrary enforcement.’”
Welch, 136 S. Ct. at 1262 (quoting Johnson, 135 S. Ct. at 2556).
The now-invalidated ACCA residual clause made any crime
punishable by more than one year in prison and that “otherwise
involve[d] conduct that present[ed] a serious potential risk of
physical injury to another” a violent felony. 18 U.S.C.
§ 924(e)(2)(B)(ii). Applying the vagueness doctrine, the
Supreme Court concluded that the ACCA’s residual clause was
unconstitutional under both standards: it failed to provide
“fair notice to defendants” and “invite[d] arbitrary enforcement
by judges.” Johnson, 135 S. Ct. at 2557.

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In this case, the parties do not dispute that Johnson would
permit the Court to authorize a petitioner to file a successive
§ 2255 motion under the appropriate circumstances: Johnson
announced a new rule of constitutional law that the Supreme
Court made retroactive and that was previously unavailable. See
28 U.S.C. § 2255(h)(2). Instead, the government argues that
Hubbard’s claim fails on two grounds: first, that Johnson
applies only to the ACCA’s residual clause, not to residual
clauses found at 18 U.S.C. §§ 16(b) & 924(c)(3)(B); and second,
that Hubbard’s challenge fails regardless because his sentence
was determined using the Sentencing Guidelines (which, until
November 1989, incorporated by express reference the definition
of “crime of violence” set forth in § 16(b) into the career-
offender guideline), making application of Johnson to this case
procedural (rather than substantive) and therefore not
retroactive. We are not persuaded by either of the government’s
contentions.
A.
Turning to the government’s first argument, this Court must
answer whether the Johnson rule applies to the distinct but
similar residual clause at issue in Hubbard’s case.
“In determining whether a prior conviction triggers a
sentence enhancement under the Sentencing Guidelines, we
approach the issue categorically, looking only to the fact of

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conviction and the statutory definition of the prior offense.”
United States v. Montes-Flores, 736 F.3d 357, 364 (4th Cir.
2013) (citation and internal quotations omitted). The statute
under which Hubbard was convicted defines third-degree burglary
as burglary of a building, and “building” refers to both
dwellings and nondwellings. Hubbard, 1990 WL 194520, at *3
(citing Ky.Rev.Stat.Ann. §§ 511.010, 511.040). Hubbard was
sentenced on April 21, 1989, as a career offender under U.S.S.G.
§ 4B1.1,2 which in turn relied on § 4B1.2 for definitions of key
terms. At that time, as noted, § 4B1.2 defined the term “crime
of violence” by reference to 18 U.S.C. § 16. U.S.S.G.
§ 4B1.2(1) (U.S. Sentencing Comm’n 1988); see also 18 U.S.C.
§ 16(b) (1988) (defining “crime of violence” as one 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”). Under that definition the district
court found, and a panel of this Court affirmed, that Kentucky
2 At the time, the relevant provision read:
A defendant is a career offender if (1) the
defendant was at least eighteen years old at the
time of the instant offense, (2) the instant
offense of conviction is a felony that is either
a crime of violence or a controlled substance
offense, and (3) the defendant has at least two
prior felony convictions of either a crime of
violence or a controlled substance offense.
U.S.S.G. § 4B1.1 (U.S. Sentencing Comm’n 1988).

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third-degree burglary was a crime of violence. Hubbard, 1990 WL
194520, at *3. The offense was therefore treated as one of the
predicate crimes of violence contributing to Hubbard’s career-
offender status for purposes of applying the Sentencing
Guidelines. Hubbard now seeks permission to challenge his
career-offender status by applying the new constitutional rule
announced in Johnson to the § 16(b) definition of a crime of
violence (and thereby to the then-relevant version of U.S.S.G.
§ 4B1.2).
The government argues that Johnson only invalidated the
residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B), and has
no application to 18 U.S.C. § 16(b) or other nonidentical
residual clauses.3 Hubbard counters that his burden is merely to
show that it is plausible that the rule announced in Johnson
renders § 16(b) unconstitutionally vague. In other words, he
argues that the government is making a merits argument that
3 The government also argued elsewhere in its brief that the
rule in Johnson does not apply to 18 U.S.C. § 924(c)(3)(B). We
no longer need to address that argument directly because McNeal
resolved the only relevant issue presented in this case (whether
armed bank robbery is a crime of violence) that possibly
involved that provision. We note, however, that the language of
§ 16(b) is identical to that in § 924(c)(3)(B), and we have
previously treated precedent respecting one as controlling
analysis of the other. United States v. Fuertes, 805 F.3d 485,
500 (4th Cir. 2015); see also United States v. Taylor, 814 F.3d
340, 377 (6th Cir. 2016) (relying on Supreme Court’s § 16(b)
precedent to interpret § 924(c)(3)(B)); United States v.
Serafin, 562 F.3d 1105, 1108 & n.4 (10th Cir. 2009) (same).

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would be properly presented to the district court in response to
a § 2255 motion but that is premature at this preliminary stage.
As previously explained, § 16(b) defines a “crime of
violence” as one 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.”
§ 16(b). Like the provision invalidated by Johnson, § 16(b) is
a residual clause expanding the definition of a crime of
violence. However, the Court in Johnson was dealing with the
ACCA’s residual clause, which was formulated somewhat
differently. See Fuertes, 805 F.3d at 499 n.5 (explaining that
“[t]he two formulations . . . are similarly worded but not
identically so”). It stated that a crime was an appropriate
predicate offense if it “otherwise involve[d] conduct that
present[ed] a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B)(ii). This textual
difference, the government argues, combined with several other
distinguishing characteristics, leaves § 16(b) beyond the scope
of the rule articulated in Johnson. Specifically, the
government argues that § 16(b) is “materially narrower” than the
ACCA residual clause, that it does not contain a “confusing list
of enumerated offenses,” and that the ACCA residual clause
reaches conduct occurring outside the commission of an offense
while § 16(b) does not.

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Given the relatively low bar Hubbard must get over, the
government’s arguments are unconvincing. Even accepting them
all as undisputed, which they are not, it is not at all clear
these arguments would be enough to show that Hubbard has failed
to establish a prima facie case. All Hubbard need show is that
there is “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.” § 2255(h)(2). In fact, it is not
entirely clear which of these three § 2255(h)(2) elements the
government contends Hubbard does not meet. The most plausible
interpretation of the government’s position is that Hubbard’s
present motion fails the third element—that the new rule was
previously unavailable—not because the Johnson rule was
previously available to him, but because the third § 2255(h)(2)
element implies that a movant may only obtain authorization
where the new rule becomes available to him insofar as it can
affect his case. Thus, the government could be understood to
argue, a plaintiff cannot proceed even from this early stage if
the new constitutional rule cannot affect the provision on which
his conviction or sentence was based. The argument fails here,
however, because it is for the district court to determine
whether the new rule extends to the movant’s case, not for this
court in this proceeding. In re Encinias, --- F.3d ----, 2016
WL 1719323 (10th Cir. Apr. 29, 2016) (per curiam); see also In

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re Robinson, No. 16–11304–D, ––– F.3d ––––, 2016 WL 1583616, at
*2 n.2 (11th Cir. Apr. 19, 2016) (Martin, J., concurring)
(noting that every circuit except the Eleventh has held or
assumed Johnson applies to the Sentencing Guidelines).
The government is making a merits argument: its contention
that the Johnson rule does not render similar language in a
closely related provision unconstitutional is an argument about
the proper application of the new rule in Johnson. And at this
stage, a merits argument faces an almost insurmountable
hurdle: while determining whether to authorize a successive
petition “may entail a cursory glance at the merits . . . the
focus of the inquiry must always remain on the § 2244(b)(2)
standards.” Williams, 330 F.3d at 282; see also id. (noting
that, for example, authorization to challenge a conviction for
constitutional error will be granted where application
“adequately alleging some constitutional violation” is presented
(emphasis added)). The fact that two federal circuit courts
already have concluded that § 16(b) is unconstitutionally vague
under Johnson, see United States v. Vivas-Ceja, 808 F.3d 719,
720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 110 (9th Cir.
2015), likely is enough to establish that Hubbard has made “a
sufficient showing of possible merit to warrant a fuller

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exploration by the district court,” Williams, 330 F.3d at 281.4
In any event, that Hubbard has met this threshold burden is
confirmed by our own “glance” at the government’s merits
arguments.
In Johnson, the Supreme Court found “[t]wo features of the
[ACCA’s] residual clause” problematic: that it “leaves grave
uncertainty about how to estimate the risk posed by a crime” and
that it “leaves uncertainty about how much risk it takes for a
crime to qualify as a violent felony.” Johnson, 135 S. Ct. at
2557-58 (emphasis added). The first of these problems resulted
largely from the ACCA residual clause’s invocation of “a
judicially imagined ‘ordinary case’ of a crime” rather than the
“real-world facts or statutory elements.” Id. at 2557. The
Court noted that such an analysis put judges in an impossible
4 We note that the circuits are divided as to whether
§ 16(b) and § 924(c)(3)(B) are unconstitutionally vague under
Johnson. A panel of the Fifth Circuit agreed with the Seventh
and Ninth Circuits that Johnson renders § 16(b)
unconstitutionally vague, but the court has granted rehearing.
United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir.
2016), reh’g en banc ordered, 815 F.3d 189. The Sixth Circuit
has concluded that § 924(c)(3)(B) is not unconstitutionally
vague, Taylor, 814 F.3d at 376, completing (for now) the circuit
split. We have previously declined (as unnecessary to the
decision) to opine on whether Johnson’s holding applies to the
residual clauses embodied in those provisions, e.g., Fuertes,
805 F.3d at 499 n.5, and in the context of our consideration of
Hubbard’s motion for authorization to proceed in the district
court, we have no occasion to rule on the merits of his claim
beyond the “glance” discussed in text.

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position: “How does one go about deciding what kind of conduct
the ‘ordinary case’ of a crime involves?” Id.; see also 18
U.S.C. § 924(e)(2)(B)(ii) (defining a violent felony as one that
“otherwise involves conduct that presents a serious potential
risk of physical injury to another” (emphasis added)).
The second problematic feature of the ACCA residual clause,
uncertainty regarding the quantum of risk necessary for a crime
to become a violent felony, arises from two textual
sources: the requirement that the “judge-imagined abstraction”
of the ordinary case be analyzed using a vague “serious
potential risk” standard, and the existence of a “confusing”
enumerated list of exemplary offenses. Johnson, 135 S. Ct. at
2558. The Court indicated that a vague standard is one thing,
but applying it to imaginary instances of crimes is another.
Id. Moreover, the standard was made more vague by tying it to
four enumerated offenses—burglary, arson, extortion, or any
offense involving the use of explosives—which “are ‘far from
clear in respect to the degree of risk each poses.’” Id.
(quoting Begay v. United States, 553 U.S. 137, 143 (2008)).
As Hubbard argues, § 16(b) presents both of these issues.
It invokes the ordinary case by referring, not to the facts of
the case, but to the “nature” of the offense. 18 U.S.C.
§ 16(b). The provision also applies almost the exact same vague
standard—“involves a substantial risk”—to the abstract ordinary

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case. Id. This Court has acknowledged the similarities between
the “operative language” in the ACCA’s residual clause struck
down in Johnson and that in § 16(b) at issue here. See United
States v. Martin, 215 F.3d 470, 474 n.4 (4th Cir. 2000). Only
one of the problems with ACCA’s residual clause is absent from
§ 16(b): the enumerated list of offenses. But while the
Johnson Court noted that the list made the residual clause more
vague rather than less so, its reliance on that issue was
limited. See Vivas–Ceja, 808 F.3d at 723 (“The list [of
enumerated offenses] itself wasn’t one of the ‘two features’
that combined to make the clause unconstitutionally vague.”).
We cannot determine, at a glance, whether this single
dissimilarity is sufficient to distinguish § 924(e)(2)(B)(ii)
from § 16(b). It would therefore be for the district court to
make that determination following a more detailed briefing of
this merits issue.
The same is true of the government’s other principal
argument, namely, that § 16(b) is “materially narrower” than the
ACCA provision. It is true that § 16(b) limits its application
to instances involving the “risk that physical force” will be
used “in the course of committing the offense,” Leocal v.
Ashcroft, 543 U.S. 1, 10 & n.7 (2004) (quoting § 16(b)), whereas
the ACCA’s residual clause reached risks precipitated by the
offense but occurring after its completion, see Johnson, 135

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S. Ct. at 2557. In fact, the Johnson Court noted that “the
inclusion of burglary and extortion among the enumerated
offenses preceding the [ACCA] residual clause confirms that the
court’s task also goes beyond evaluating the chances that the
physical acts that make up the crime will injure someone”
because violence related to those crimes is most likely to occur
after the burglary or extortion has already been committed. Id.
But this distinction between the ACCA residual clause and
§ 16(b), as presented by the government, goes more to the
breadth of the two clauses than their vagueness.
The Johnson Court stated that its concern with the ACCA
residual clause was that “unlike the part of the definition of a
violent felony that asks whether the crime ‘has as an element
the use . . . of physical force,’ the residual clause asks
whether the crime ‘involves conduct’ that presents too much risk
of physical injury.” Id. (alteration in original). Likewise,
§ 16(b) eschews the reference to the elements of a crime found
in the preceding § 16 force clause, 18 U.S.C. § 16(a), instead
addressing itself to any crime that “involves a substantial risk
that physical force against the person or property of another
may be used,” § 16(b). Although facts relevant to an ACCA
analysis occupy a broader period of time, § 16(b) still asks
courts to assess “the risk that the use of physical force
against another might be required in committing a crime,”

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Leocal, 543 U.S. at 10 (emphasis added), an exercise we cannot
say at this stage does not “invite[] arbitrary enforcement by
judges,” Johnson, 135 S. Ct. at 2556.
Moreover, and perhaps paradoxically, it is largely the
enumerated offenses in the ACCA which caused that residual
clause’s greater breadth. Johnson, 135 S. Ct. at 2557. As
such, our reasons for rejecting the list of enumerated offenses
as a sufficient point of distinction apply equally here. The
Johnson Court’s focus was on the abstraction involved in
analyzing an ordinary case, and the distinction the government
has raised between these provisions does not render it
implausible that § 16(b), too, is unconstitutionally vague.
Again, that is a merits argument that is sufficiently close to
warrant presentation to the district court. In re Encinias, ---
F.3d at ---, 2016 WL 1719323, at *1.
B.
The government’s second argument is that the Sentencing
Guidelines are procedural rules, that application of the Johnson
rule to the Sentencing Guidelines would therefore be procedural,
and that as a result Hubbard cannot satisfy the second § 2244
prima facie element (retroactive application) because, “[n]ew
rules of constitutional criminal procedure are generally not
applied retroactively on collateral review.” United States v.
Sanders, 247 F.3d 139, 147-48 (4th Cir. 2001) (citing Teague v.

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Lane, 489 U.S. 288 (1989) (plurality opinion)). In other words,
while it admits the Johnson rule is substantive when applied to
§ 924(c)(3)(B),5 the government contends it is merely procedural
when applied to the Sentencing Guidelines, and that retroactive
application is therefore barred by Teague.
A rule is substantive if it addresses “‘substantive
categorical guarante[es] accorded by the Constitution,’ such as
a rule ‘prohibiting a certain category of punishment for a class
of defendants because of their status or offense.’” Frazer v.
South Carolina, 430 F.3d 696, 704 n.4 (4th Cir. 2005) (quoting
Saffle v. Parks, 494 U.S. 484, 494 (1990)). “In contrast, rules
that regulate only the manner of determining the defendant’s
culpability are procedural.” Schriro v. Summerlin, 542 U.S.
348, 353 (2004). The government argues that § 16(b) as
incorporated into the Sentencing Guidelines is procedural
because (1) it does not change the range of legally permissible
outcomes (which are limited by statutory minimums and maximums)
and (2) errors in calculating a defendant’s advisory guidelines
range have been characterized as procedural by the Supreme
Court. Neither argument is convincing.
To begin, the decision in Welch declared unequivocally that
Johnson was “a substantive decision and so has retroactive
5 See note 4, supra.

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effect under Teague in cases on collateral review,” Welch, 136
S. Ct. at 1265, and the government has cited no case to support
the proposition that a rule can be substantive in one context
but procedural in another. Cf. Danforth v. Minnesota, 552 U.S.
264, 266 (2008) (“New constitutional rules announced by this
Court that place certain kinds of primary individual conduct
beyond the power of the States to proscribe, as well as
‘watershed’ rules of criminal procedure, must be applied in all
future trials, all cases pending on direct review, and all
federal habeas corpus proceedings.”).
The Welch Court also noted that “[b]y striking down the
residual clause as void for vagueness, Johnson changed the
substantive reach of the Armed Career Criminal Act, altering
‘the range of conduct or the class of persons that the [Act]
punishes.’” Welch, 136 S. Ct. at 1265 (quoting Schriro, 542
U.S. at 353). Likewise, striking down the residual clause
embodied in § 16(b), and thereby removing it from the applicable
version of the Sentencing Guidelines, would “alter[] the range
of conduct or the class of persons that the [Sentencing
Guidelines] punishes.” Id. (quotation marks omitted). That is,
the “substantive reach” of the Sentencing Guidelines would be
altered just as much as was true for the ACCA. If the Johnson
rule does invalidate § 16(b), some crimes will no longer fit the
Sentencing Guidelines’ definition of a crime of violence and

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will therefore be incapable of resulting in a career-offender
sentencing enhancement. In such cases, application of the
Johnson rule will operate to “prohibit[] a certain category of
punishment for a class of defendants because of their status.”
Frazer, 430 F.3d at 704 n.4. A defendant may still be subject
to the same statutory range of punishments, but “‘even the use
of impeccable factfinding procedures could not legitimate’ a
sentence based on that clause” (that is, U.S.S.G. § 4B1.2(1) as
it existed at the time of sentencing). Welch, 136 S. Ct. at
1265 (emphasis added) (quoting United States v. U.S. Coin &
Currency, 401 U.S. 715, 724 (1971)).
Moreover, although available sentences are technically
controlled by statute, the Sentencing Guidelines hardly
represent a mere suggestion to courts about the proper sentences
defendants should receive. “The federal system adopts
procedural measures intended to make the Sentencing Guidelines
the lodestone of sentencing.” Peugh v. United States, 133
S. Ct. 2072, 2084 (2013). This was even more true when Hubbard
was sentenced in 1989 as United States v. Booker, 543 U.S. 220
(2005), had not yet been decided and the Sentencing Guidelines
were still being treated as mandatory. The government points
out that errors in calculating the appropriate Sentencing
Guidelines range are procedural, Peugh, 133 S. Ct. at 2080, but
fails to address the Supreme Court’s express description of the

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Sentencing Guidelines as “the substantive ‘formula’ used to
calculate the applicable sentencing range,” id. at 2088 (quoting
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 505 (1995))
(quotation marks omitted); see also Molina–Martinez v. United
States, 136 S. Ct. 1338, 1345 (2016) (“The Guidelines’ central
role in sentencing means that an error related to the Guidelines
can be particularly serious.”).
Just as in Johnson, invalidation of § 16(b) would have
“nothing to do with the range of permissible methods a court
might use to determine whether a defendant should be sentenced”
as a career offender. Welch, 136 S. Ct. at 1265. The Welch
Court noted that Johnson “did not, for example, allocate
decisionmaking authority between judge and jury, or regulate the
evidence that the court could consider in making its decision,”
and that it was therefore not procedural. Id. (citations and
quotation marks omitted). The same would be equally true in an
application of Johnson to the Sentencing Guidelines, and thus we
are compelled to find that “[b]y the same logic, Johnson is not
a procedural decision.” Id.
IV.
Because application of Johnson to § 16(b) as incorporated
into the Sentencing Guidelines might render the career-offender
residual clause that was applicable at the time Hubbard was

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sentenced unconstitutional, and because the rule in Johnson is
substantive with respect to its application to the Sentencing
Guidelines and therefore applies retroactively, this Court
grants Hubbard’s request for authorization to file a successive
§ 2255 motion.
MOTION GRANTED

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