Judge William Pryor, joined by Judges Ed Carnes, Tjoflat, Newsom, and Branch, concurred to express the view that Congress should re-write recidivist statutes like the ACCA to restore the common-law role of the jury by requiring the government to prove to a jury that the defendant committed a prior conviction, and that the facts of the prior conviction involved the use of physical force.
Judge Martin dissented, explaining how the majority's decision was but the latest in a long line of decisions limiting the effect of Johnson. Her "review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise."
Judge Jill Pryor, joined by Judges Wilson, Martin, and Jordan, dissented, arguing that the residual clause in 924(c)(3)(B) was unconstitutional in light of Dimaya, which struck down the identical statute in 16(b), and the canon of constitutional avoidance could not save it because its text required application of the categorical approach.
