Daniel L. Lopez v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 18-3757
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Daniel L. Lopez
Petitioner - Appellant
v.
United States of America
Respondent - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: December 9, 2019
Filed: March 30, 2020
[Unpublished]
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Before SMITH, Chief Judge, LOKEN and GRASZ, Circuit Judges.
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PER CURIAM.
Daniel Lopez pleaded guilty to drug and firearm offenses in 1997 and was
sentenced as a career offender to 360 months in prison. See USSG § 4B1.1. Lopez
appealed and we affirmed. United States v. Lopez, No. 97-2439, 1998 WL 279357
(8th Cir. June 2, 1998). In June 2016, he moved to correct his sentence under 28
U.S.C. § 2255 based on Johnson v. United States, 135 S. Ct. 2551 (2015). Lopez

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appeals the district court’s1 denial of the motion as untimely, an issue we review de
novo. E.J.R.E. v. United States, 453 F.3d 1094, 1097 (8th Cir. 2006).
A § 2255 motion is timely if brought within one year of the date on which the
judgment of conviction becomes final. § 2255(f)(1). But if the movant asserts a right
“newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review,” the one-year period runs from “the date on which the right
asserted was initially recognized by the Supreme Court.” § 2255(f)(3).
In Johnson, the Supreme Court invalidated the residual clause of the Armed
Career Criminal Act as unconstitutionally vague. 135 S. Ct. at 2556-57, 2563. Lopez
filed his § 2255 motion within one year of Johnson. The Court made Johnson
retroactive to cases on collateral review in Welch v. United States, 136 S. Ct. 1257,
1265, 1268 (2016). But in Beckles v. United States, 137 S. Ct. 886, 892, 895 (2017),
the Court held that the parallel residual clause in the career offender provisions of the
advisory guidelines was not unconstitutionally vague. In a concurring opinion,
Justice Sotomayor said it should be considered an open question whether the career
offender residual clause in the mandatory guidelines is susceptible to a vagueness
challenge under Johnson. Id. at 903 n.4 (Sotomayor, J., concurring in the judgment).
Lopez was sentenced before the Sentencing Guidelines were made advisory in United
States v. Booker, 543 U.S. 220, 246 (2005). Based on this distinction, he argues that
he is entitled to relief because Johnson effectively invalidated the career offender
provision under which he was sentenced, and therefore his motion to correct his
sentence was timely-filed under § 2255(f)(3).
This argument is foreclosed by our recent decision in Russo v. United States,
902 F.3d 880 (8th Cir. 2018), cert. denied, 139 S. Ct. 1297 (2019). In Russo, we held
1The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
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that the right Lopez asserts -- “a right under the Due Process Clause to be sentenced
without reference to the residual clause of § 4B1.2(a)(2) under the mandatory
guidelines” -- is “not dictated by Johnson.” Id. at 882-83. As Johnson left open and
debatable whether its vagueness analysis applies to the career offender provisions of
the mandatory guidelines, Lopez is not asserting a right newly recognized and made
retroactive by the Supreme Court and therefore cannot benefit from the limitations
period in § 2255(f)(3). We have since affirmed denials of other § 2255 motions as
untimely under Russo. See Peden v. United States, 914 F.3d 1151 (8th Cir. 2019);
Mora-Higuera v. United States, 914 F.3d 1152 (8th Cir. 2019).
Lopez argues that Russo was wrongly decided and urges us to follow contrary
decisions of the Seventh Circuit. See D’Antoni v. United States, 916 F.3d 658 (7th
Cir. 2019); Cross v. United States, 892 F.3d 288 (7th Cir. 2018). Russo expressly
acknowledged the Seventh Circuit’s contrary view and explained why its reasoning
was not persuasive. Russo, 902 F.3d at 883-84. Even if we disagreed with Russo,
we are not free to avoid its clear holding. “It is a cardinal rule in our circuit that one
panel is bound by the decision of a prior panel.” Owsley v. Luebbers, 281 F.3d 687,
690 (8th Cir. 2002), cert. denied, 534 U.S. 1121 (2002). Lopez may of course argue
that Russo was wrongly decided in a petition for rehearing en banc to our court, or
in a petition to the Supreme Court for a writ of certiorari to resolve a conflict in the
circuits. See United States v. London, 937 F.3d 502, 508 (5th Cir. 2019), cert.
denied, --- S. Ct. --- (2020) (collecting cases).
The judgment of the district court is affirmed.
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