In Lester v. United States (Apr. 29, 2019), the full
court declined to rehear en banc whether Johnson retroactivley applies
to the mandatory pre-Booker residual clause in the Guidelines.
Writing for himself, Judge William Pryor authored a lengthy
opinion explaining why any ruling extending Johnson to the Guidelines
would not be a substantive rule, and therefore would not have retroactive
effect in cases on collateral review. He
emphasized that, unlike in the ACCA context, the defendant's sentence would
remain within the statutory ranges authorized by Congress, and he could receive
the same sentence today. He also reasoned, in a lengthy discussion,
that judicial decisions don't actually change the law but rather recognize what
the law has always been.
Judge Martin, joined by Judges Rosenbaum and Jill Pryor, opined
that the Eleventh Circuit's decision in In re Griffin was wrong, both
that Johnson did not apply to the mandatory Guidelines and that any such
ruling would not be retroactive.
Judge Rosenbaum, joined by Judges Martin and Jill Pryor,
wrote separately in response to Judge Pryor's more theoretical comments that the
Guidelines were never mandatory at all, and that judicial opinions don't actually
change what the law always has been. "He
reasons that since the Supreme Court in Booker found that the mandatory
Guidelines violated the Sixth Amendment, they 'were never really
mandatory,' even though courts applied them that way for two decades. Hmm. I
doubt the perhaps 1,000-plus inmates who sit in prison right now because a
court sentenced them using a mandatory version of the Guidelines with an
indisputably unconstitutionally vague career-offender clause would agree. . . . Under Pryor's reasoning, the Guidelines were never
mandatory, but to inmates like Lester, they will always be mandatory,
since these prisoners remain subject to their punishment. This heads-I-win-tails-you-lose logic cannot
withstand scrutiny."
