In Re: Earl Burgest

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14597-J
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IN RE: EARL BURGEST,
Petitioner.
__________________________
Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)
_________________________
Before ED CARNES, Chief Judge, HULL and WILLIAM PRYOR, Circuit Judges.
B Y T H E P A N E L:
Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Earl Burgest has filed an application
seeking an order authorizing the district court to consider a second or successive motion to vacate,
set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted
only if this Court certifies that the second or successive motion contains a claim involving:
(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.
Id. § 2255(h). “The court of appeals may authorize the filing of a second or successive application
only if it determines that the application makes a prima facie showing that the application satisfies
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the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs.,
485 F.3d 1351, 1357–58 (11th Cir. 2007) (explaining that this Court’s determination that an
applicant has made a prima facie showing that the statutory criteria have been met is simply a
threshold determination).
Burgest’s application reflects that he wishes to raise one claim in a second or successive
motion to vacate, 28 U.S.C. § 2255. Burgest asserts that his claim is based on the new rule of
constitutional law announced in Johnson v. United States, 576 U.S. ––––, 135 S. Ct. 2551, 192
L.Ed.2d 569 (2015), that the definition of violent felony in the residual clause of the Armed Career
Criminal Act is unconstitutionally vague, 18 U.S.C. § 924(e)(2)(B)(ii). Burgest argues that the
district court violated his due process rights by increasing his sentence under the residual clause of
the career offender provision of the United States Sentencing Guidelines, U.S.S.G. §§ 4B1.1,
4B1.2(a), based on his prior convictions in the Florida courts for manslaughter and kidnapping.
The Act defines a violent felony as any crime punishable by imprisonment for a term
exceeding one year that: (1) has as an element the use, attempted use, or threatened use of physical
force against the person of another; (2) is burglary, arson, or extortion, or involves use of
explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical
injury to another. 18 U.S.C. § 924(e)(2)(B); Mays v. United States, 817 F.3d 728, 730–31 (11th
Cir. 2016). We refer to these three “clauses” as the “elements clause,” the “enumerated clause,”
and the “residual clause,” respectively. Mays, 817 F.3d at 731.
Section 4B1.1 of the Sentencing Guidelines provides that a defendant is classified as a
career offender if he (1) was at least 18 years old at the time of the offense of conviction; (2) the
offense of conviction was either a crime of violence or a controlled-substance offense; and (3) he
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had at least two prior felony convictions of either a crime of violence or a controlled-substance
offense. U.S.S.G. § 4B1.1(a). The guidelines define “crime of violence” as any offense under
federal or state law that is punishable by imprisonment for more than one year and:
(1) has as an element the use, attempted use, or threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.
Id. § 4B1.2(a).
To the extent Burgest relies on Johnson to invalidate his sentence under the Guidelines, his
claim fails. We have held that Johnson does not apply to the Guidelines for the purpose of
obtaining permission to file a second or successive motion. See In re Griffin, No. 16–12012, –––
F.3d ––––, 2016 WL 3002293 (11th Cir. May 25, 2016). The Supreme Court granted certiorari
recently in Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), cert. granted, No. 15–
8544, ––– U.S. ––––, –––S.Ct. ––––, ––– L.Ed.3d ––––, 2016 WL 1029080 (U.S. June 27, 2016),
which presents the issue whether Johnson applies to the Guidelines. But because “we are bound to
follow a prior binding precedent unless and until it is overruled by this court en banc or by the
Supreme Court,” United States v. Vega–Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (internal
quotation marks and citation omitted), we are bound to follow Griffin.
Even if we were to assume that the new substantive rule announced in Johnson also applies
to the residual clause of section 4B1.2(a)(2) of the Guidelines, Burgest would not be entitled to
relief. In Johnson, the United States Supreme Court clarified that its decision declaring the residual
clause void for vagueness did not call into question the validity of the elements clause or the
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enumerated clause in the Act. 135 S. Ct. at 2563. Burgest was classified as a career offender based
on his two prior convictions for manslaughter and kidnapping. Both offenses are categorically
crimes of violence. The commentary to section 4B1.2 states that “‘crime of violence’ includes . . .
manslaughter [and] kidnapping . . . ” U.S.S.G. § 4B1.2 n.1. And we have recognized, based on the
decision of the Supreme Court in Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915,
123 L.Ed.2d 598 (1993), that “the definition of “crime of violence” provided by the Guidelines
commentary is authoritative.” United States v. Hall, 714 F.3d 1270, 1274 (11th Cir. 2013). The
enhancement of Burgest’s sentence would be valid regardless of whether Johnson renders the
residual clause in the Guidelines unconstitutional.
Burgest has failed to make a prima facie showing that he is entitled to relief. See 28 U.S.C.
§ 2244(b)(3)(C). His application for leave to file a second or successive motion to vacate is
DENIED.
APPLICATION DENIED.
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