Whether the residual clause of the mandatory guidelines, USSG §4B1.2(a)(2) (2004), is void for vagueness

QUESTIONS PRESENTED In 1999, when the guidelines were mandatory, Bobby Pullen was sentenced as a career offender under USSG § 4B1.1 in light of a prior escape conviction. That conviction qualified as a crime of violence (only) under USSG § 4B1.2(a)(2)’s residual clause. In 2015, this Court struck down as void for vagueness an identical residual clause in 18 U.S.C. § 924(e)(2)(B)(ii). Johnson v. United States, 135 S.Ct. 2551 (2015). Within one year of the decision in Johnson, Mr. Pullen obtained authorization from the Tenth Circuit to file a successive motion to vacate under 28 U.S.C. § 2255(h)(2). Despite this authorization, the district court, citing 28 U.S.C. § 2244(b)(4), found that Mr. Pullen’s motion failed to satisfy the preconditions of § 2255(h)(2) and dismissed the motion. The Tenth Circuit affirmed. In conflict with a published decision from the Seventh Circuit, the Tenth Circuit held that the new rule announced in Johnson does not apply to the mandatory guidelines. The questions presented are: I. When a court of appeals grants authorization to file a successive motion under 28 U.S.C. § 2255(h)(2), does 28 U.S.C. § 2244(b)(4) permit a district court to revisit this § 2255(h)(2) authorization and to dismiss the successive motion as unauthorized? II. Whether, for purposes of 28 U.S.C. § 2255(h)(2), the new rule announced in Johnson applies to the identical residual clause in the mandatory guidelines, USSG § 4B1.2(a)(2) (2004)? III. Whether the residual clause of the mandatory guidelines, USSG § 4B1.2(a)(2) (2004), is void for vagueness? i