United States v. Vargas-Soto

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Andrew S. Oldham, Circuit Judge
• Citation: United States v. Vargas-Soto, 35 F.4th 979 (5th Cir. 2022)
• Decision Date: 02 June 2022
• Docket Number: 20-10705
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Jose VARGAS-SOTO, Defendant—Appellant.

35 F.4th 979

UNITED STATES of America, Plaintiff—Appellee,

v.Jose VARGAS-SOTO, Defendant—Appellant.

No. 20-10705

United States Court of Appeals, Fifth Circuit.

FILED June 2, 2022

Brian W. McKay, Esq., Leigha Amy Simonton, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Amarillo, TX, for Defendant-Appellant.

Before Davis, Elrod, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

The question presented is whether Jose Vargas-Soto's successive motion for postconviction relief under 28 U.S.C. § 2255 is procedurally barred. We say yes.

I.

We begin with (A) a description of the relevant legal background. Then we explain (B) Vargas-Soto's procedural history.

A.

First some legal background. The Supreme Court long struggled with interpreting various "residual clauses" in federal criminal statutes, such as the definition of "violent felony" in the Armed Career Criminal Act ("ACCA") and the definition of "crime of violence" in the Immigration and Nationality Act ("INA"). See 18 U.S.C. § 924(e)(2)(B) (ACCA) ; 8 U.S.C. § 16(b) (INA). Initially, the Court applied a "categorical approach" to determine whether a particular offense fell within a residual clause. See, e.g., Taylor v. United States , 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (holding that "the legislative history of [ACCA] shows that Congress generally took a categorical approach to predicate offenses"); Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (applying the categorical approach to the INA's definition of "aggravated felony," which includes the residual clause's definition of "crime of violence," but not addressing the constitutionality of the residual clause). That approach, however, led to a litany of head-scratchingly inconsistent results. See Chambers v. United States , 555 U.S. 122, 133, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (Alito, J., concurring in judgment) ("After almost two decades with Taylor 's ‘categorical approach,’ only one thing is clear: ACCA's residual clause is nearly impossible to apply consistently.").

That led some on the Court to question whether ACCA's residual clause was unconstitutionally vague. See, e.g., James v. United States , 550 U.S. 192, 214–31, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Scalia, J., dissenting); Sykes v. United States , 564 U.S. 1, 28, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting) (reiterating the view that "ACCA's residual provision is a drafting failure and [should be] declare[d] ... void for vagueness"). For many years, however, the Court continued to apply the residual clauses anyway.

After about a decade of struggling, the skeptics won. In Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held ACCA's residual clause violated the defendant's due-process rights because it was "void for vagueness" and overruled James and Sykes . Id. at 595–606, 135 S.Ct. 2551. As with so many landmark decisions, however, Johnson raised more questions than it answered. Chief among them: whether the void-for-vagueness holding should have retroactive effect, and whether other residual clauses (such as the INA's) are also unconstitutionally vague.

The Supreme Court started with retroactivity. The Court held that in Johnson , it "announced a substantive rule that has retroactive effect in cases on collateral review." Welch v. United States , 578 U.S. 120, 127, 135, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) ; cf. Schriro v. Summerlin , 542 U.S. 348, 353–55, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (explaining the difference between substantive and procedural rules).

Then the Court turned to whether Johnson extended to other residual clauses. In Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 197 L.Ed.2d 145 (2017), the Court concluded that the "advisory Guidelines are not subject to vagueness challenges under the Due Process Clause." Id. at 890. In Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), the Court held that the INA's residual clause was "similarly worded" to the one in Johnson and in turn "suffer[ed] from the same constitutional defect." Id. at 1210. Finally, in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the Court held that 18 U.S.C. § 924(c)'s residual clause was unconstitutionally vague. Id. at 2336. The Supreme Court never took a case to expressly decide whether Dimaya or Davis were retroactive to cases on collateral review.

B.

Now, Vargas-Soto's procedural history. Vargas-Soto has a long rap sheet, starting long before James , Sykes , and Johnson. In 2001, he pleaded guilty to driving while intoxicated ("DWI"). In 2003, he pleaded guilty to manslaughter, intoxicated assault, and evading arrest, among other offenses. In 2007, he pleaded guilty to unlawful possession of a controlled substance (cocaine). In 2008, he pleaded guilty to illegal reentry after removal. In late 2009, the United States Government removed Vargas-Soto. But he immediately returned and committed another crime: In 2010, Vargas-Soto pleaded guilty to another DWI.

This finally brings us to his current term of imprisonment. In 2011, the Government charged Vargas-Soto with illegal reentry after removal in violation of 8 U.S.C. § 1326(a).¹ He pleaded guilty. The Government contended that Vargas-Soto faced a maximum of 20 years because he qualified for the sentencing enhancement in § 1326(b)(2) by previously committing an "aggravated felony" under the residual clause's definition of a "crime of violence."

On October 15, 2011, the district court agreed and sentenced Vargas-Soto to 180 months. Vargas-Soto timely appealed. He challenged the district court's conclusion that his prior conviction for manslaughter qualified as a "crime of violence" (and thus an "aggravated felony"); he did not challenge the residual clause for vagueness. Applying plain-error review, we affirmed the district court's judgment. United States v. Vargas-Soto , 700 F.3d 180 (5th Cir. 2012).

Vargas-Soto then petitioned the Supreme Court for a writ of certiorari. On February 25, 2013, the Court denied it. That made Vargas-Soto's conviction final.

Between 2013 and 2018, Vargas-Soto filed (or sought authorization to file) numerous motions for collateral review, including at least one § 2255 motion. None succeeded. And only one prior filing is relevant here. On June 27, 2016, Vargas-Soto sought authorization to file a successive § 2255 motion based on the Supreme Court's decisions in Johnson (2015) and Welch (2016). We denied that request because then-binding Fifth Circuit precedent foreclosed Vargas-Soto's vagueness challenge to the INA's residual clause.

In 2018, the Supreme Court decided Dimaya. Vargas-Soto quickly moved for authorization to file a successive § 2255 motion. This time we granted his request. Vargas-Soto then filed the instant § 2255 motion on August 15, 2019.

The district court denied Vargas-Soto's § 2255 motion and his request for a certificate of appealability ("COA"). The court acknowledged that the sentencing judge relied on the now-unconstitutional residual clause, but the court still determined that § 16(a)'s definition of "crime of violence" (i.e. , the "elements clause") justified Vargas-Soto's sentence. According to the court, Vargas-Soto's manslaughter conviction met the elements clause because the offense had a "use of force" element, even though the manslaughter offense required only a mens rea of recklessness. The court also denied a COA because Vargas-Soto failed to show that "reasonable jurists would question" the ruling.

Soon after, Vargas-Soto sought a COA from us. Without explanation, a panel of our court granted that certificate. After the initial COA grant, the Supreme Court decided Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). There, the Court addressed the proper interpretation of ACCA's elements clause, which has materially identical language to the INA's elements clause, and held that a criminal offense does not qualify "if it requires only a mens rea of recklessness." Id. at 1821–22 (plurality op.); see also United States v. Gomez Gomez , 23 F.4th 575 (5th Cir. 2022) (per curiam) (applying Borden to the INA's elements clause). Thereafter, a member of this court amended the COA to state:

A certificate of appealability is granted on these two issues:

1. Was Mr. Vargas's sentence enhanced under the unconstitutional residual clause found in 18 U.S.C. § 16(b) ?

2. Is Mr. Vargas entitled to collateral relief under 28 U.S.C. § 2255 ?²

II.

We begin with two jurisdictional questions. We first hold (A) Vargas-Soto's § 2255 motion is not barred by AEDPA's res judicata provision. Then we hold (B) Vargas-Soto's motion was properly authorized under § 2255(h)(2). We therefore have jurisdiction.

A.

AEDPA has a strict res judicata provision. It bars—with no exceptions—any claim "that was presented in a prior application." 28 U.S.C. § 2244(b)(1). The Supreme Court has held that this bar is jurisdictional. See Panetti v. Quarterman , 551 U.S. 930, 942, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

And this bar applies to § 2255 motions. Under § 2255(h), a movant must get authorization to file "[a] second or successive motion ... as provided in section 2244 by a panel of the appropriate court of appeals." (Emphasis added.) We've held that "this cross-reference incorporates § 2244(b)(1)'s strict relitigation bar into § 2255(h)'s scheme." In re Bourgeois , 902 F.3d 446, 447 (5th Cir. 2018) ; cf. Avery v. United States , ––– U.S. ––––, 140 S. Ct. 1080, 1080, 206 L.Ed.2d 488 (2020) (Kavanaugh, J., statement respecting the denial of certiorari) (noting that the Second, Third, Seventh, Eighth, and Eleventh Circuits agree but that the Sixth Circuit recently disagreed). Thus, we must "dismiss[ ]...