Bobby Joe Gipson v. United States of America

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0065n.06
No. 17-5333
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BOBBY JOE GIPSON,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
Before: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Bobby Gipson challenges under 28 U.S.C. § 2255 a prison
sentence he received nearly 20 years ago. He contends that he was sentenced under the “residual
clause” of the then-mandatory Sentencing Guidelines, which required higher sentences for
defendants with at least two prior convictions for crimes involving “conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (1997). In Johnson
v. United States, the Supreme Court found unconstitutionally vague an identically worded clause
in the Armed Career Criminal Act. 135 S. Ct. 2551, 2557 (2015). Gipson argues that sentences
decided under the Guidelines’ residual clause when that clause was still mandatory—i.e., as
binding on courts as the Armed Career Criminal Act—are likewise unconstitutional under
Johnson.

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No. 17-5333
Gipson v. United States
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That argument comes to us in the context of a § 2255 motion, so Gipson’s motion is
untimely unless Johnson recognized a new right that applies retroactively to him on collateral
review. See 28 U.S.C. § 2255(f)(3). The problem, then, is that Johnson dealt only with the
Armed Career Criminal Act, not with the Guidelines. See Welch v. United States, 136 S. Ct.
1257, 1265 (2016). That leaves defendants sentenced under the Guidelines’ residual clause—
even when that clause was mandatory—without “a ‘right’ that ‘has been newly recognized by the
Supreme Court’ let alone one that was ‘made retroactively applicable to cases on collateral
review.’” Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017) (quoting § 2255(f)(3)).
We acknowledge the irony that a defendant in a similar position to that of the defendant
in Johnson seems unable even to seek the same relief. But the fact of the matter is that Gipson
can seek relief under § 2255(f)(3) only if the Supreme Court recognizes a new right that applies
retroactively to him. And per Raybon the Court has not yet done so.
The district court’s judgment is affirmed.

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