In Re: Burgest, No. 16-14597 (11th Cir. 2016)Annotate this Case
Petitioner 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 pursuant to 28 U.S.C. 2255(h) and 2244(b)(3)(A). The court concluded that, to the extent petitioner relies on Johnson v. United States to invalidate his sentence under the Guidelines, his claim fails because the court has held that Johnson does not apply to the Guidelines for the purpose of obtaining permission to file a second or successive motion. Even if the court 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, petitioner would not be entitled to relief because petitioner's sentencing enhancement would be valid regardless. Accordingly, the court denied the application because petitioner failed to make a prima facie showing that he is entitled to relief.