Corey Kirkpatrick Sterling v. USA, No. 17-13788 (11th Cir. 2018)

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Case: 17-13788 Date Filed: 10/18/2018 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-13788 Non-Argument Calendar ________________________ D.C. Docket Nos. 1:16-cv-22608-JIC, 1:03-cr-20226-JIC-8 COREY KIRKPATRICK STERLING, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (October 18, 2018) Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges. PER CURIAM: Corey Sterling appeals from the district court’s order denying his 28 U.S.C. §2255 motion to vacate. This Court granted Sterling a certificate of appealability Case: 17-13788 Date Filed: 10/18/2018 Page: 2 of 5 on two issues: (1) whether the district court erred in denying Sterling’s claim that he was unconstitutionally sentenced under the then-mandatory sentencing guidelines in light of Johnson v. United States, 135 S. Ct. 2551 (2015); and (2) whether In re Griffin, 823 F.3d 1350 (11th Cir. 2016), which denied an application for a second or successive motion under § 2255, is binding precedent on the merits of Sterling’s § 2255 motion. Because Griffin answers the first question in the negative, and because Griffin is binding precedent in this collateral proceeding based on our recent decision in United States v. St. Hubert, 883 F.3d 1319 (11th Cir. 2018), we affirm the denial of Sterling’s § 2255 motion.1 To briefly recap the legal background, the Armed Career Criminal Act (“ACCA”) requires a prison sentence of at least fifteen years for a defendant who is convicted of unlawfully possessing a firearm and who has at least three prior convictions for either violent felonies or serious drug offenses. In Johnson, the Supreme Court held that a portion of the ACCA’s definition of “violent felony”— commonly called the residual clause—was unconstitutionally vague. Johnson, 135 S. Ct. at 2557–58, 2563. The Court then made that new rule retroactive, making clear that it applies to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016). 1 When reviewing the district court’s denial of a § 2255 motion, we review questions of law do novo and findings of fact for clear error. Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). 2 Case: 17-13788 Date Filed: 10/18/2018 Page: 3 of 5 Like the ACCA, the Sentencing Guidelines also provide enhanced penalties for recidivist offenders. Specifically, the “career offender” guideline substantially increases the guideline range of a defendant who, among other requirements, has at least two prior convictions for crimes of violence or controlled-substance offenses. U.S.S.G. § 4B1.1(a). At the time of Sterling’s sentencing, and until quite recently, the guidelines defined the term “crime of violence” in materially similar terms as the term “violent felony” in the ACCA, including the residual-clause language that Johnson invalidated in the ACCA. See U.S.S.G. § 4B1.2(a) (2002). Following Johnson, this Court held in United States v. Matchett that Johnson did not render the residual clause of the career-offender guideline unconstitutional because the vagueness doctrine does not apply to advisory guidelines. 802 F.3d 1185, 1194–96 (11th Cir. 2015). The Supreme Court subsequently adopted that same view in Beckles v. United States, holding that “the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)’s residual clause is not void for vagueness.” 137 S. Ct. 886, 895 (2017). Neither Matchett nor Beckles addressed whether the vagueness doctrine applies to mandatory guidelines. See id. at 903 n.4 (Sotomayor, J., concurring) (noting that the Court’s adherence to the distinction between mandatory and advisory rules leaves open the question whether defendants sentenced under the 3 Case: 17-13788 Date Filed: 10/18/2018 Page: 4 of 5 mandatory guidelines may mount vagueness attacks on their sentences). Because Sterling was sentenced before United States v. Booker, 543 U.S. 220 (2005), when the guidelines were still mandatory, Matchett and Beckles left open the possibility that Sterling could challenge the residual clause of the mandatory guidelines on vagueness grounds. That brings us to Griffin. In Griffin, which denied an application for a second or successive motion under § 2255, we extended the holding of Matchett to the mandatory guidelines. 823 F.3d at 1354 (“[T]he logic and principles established in Matchett also govern our panel as to Griffin’s guidelines sentence when the Guidelines were mandatory.”). We held that “[t]he Guidelines—whether mandatory or advisory—cannot be unconstitutionally vague because they do not establish the illegality of any conduct and are designed to assist and limit the discretion of the sentencing judge.” Id. Sterling concedes that Griffin, if binding, forecloses his Johnson-based vagueness challenge to the mandatory guidelines. To avoid that outcome, he argues that Griffin is not binding for two reasons: (1) it was decided in the context of an application to file a second or successive § 2255 motion, so it’s not binding precedent outside of that context; and (2) Beckles, which was decided after Griffin, undermines Griffin to the point of abrogation. Both arguments are unavailing. 4 Case: 17-13788 Date Filed: 10/18/2018 Page: 5 of 5 First, we recently held in St. Hubert that “law established in published threejudge orders issued pursuant to 28 U.S.C. § 2244(b) in the context of applications for leave to file second or successive § 2255 motions are binding precedent on all subsequent panels of this Court, including those reviewing direct appeals and collateral attacks.” 883 F.3d at 1329. Under St. Hubert, which was decided on direct appeal, we are bound by Griffin’s holding that Johnson does not apply to the residual clause of the mandatory career-offender guideline, even if we may believe that Griffin was wrongly decided. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong.”). Second, the Supreme Court’s decision in Beckles does not abrogate Griffin because Beckles did not decide or address whether the vagueness doctrine applies to the mandatory guidelines. For a Supreme Court decision to overcome the priorprecedent rule, it must be “squarely on point” and “actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). Because Beckles is not “squarely on point” and does not directly conflict with Griffin, we remain bound by Griffin. In sum, we affirm the district court’s denial of Sterling’s § 2255 motion. AFFIRMED. 5

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