Can Johnson Be Used to Challenge a Pre-Booker Guideline Sentence?

Update (October 2026): The Supreme Court never decided whether Johnson applies to mandatory guideline sentences. It declined to take up the question in Brown v. United States, 139 S. Ct. 14 (2018), over a dissent by Justice Sotomayor. The circuits stayed split. The First Circuit later held that Johnson does reach the pre-Booker career offender guideline. Shea v. United States, 976 F.3d 63 (1st Cir. 2020). The Seventh Circuit reached a similar result in Cross v. United States, 892 F.3d 288 (7th Cir. 2018). The Third Circuit went the other way in United States v. Green, 898 F.3d 315 (3d Cir. 2018), joining the Fourth and Sixth Circuits discussed below. The filing deadline for these claims ran on June 26, 2016, one year after Johnson. Read this post as history.

How Booker, Johnson, and Beckles fit together

In the weeks before this post was written in 2017, several important decisions came down on challenges to mandatory guideline sentences. They mattered most to people sentenced before Booker.

In 2005, the Supreme Court decided United States v. Booker. It made the Sentencing Guidelines advisory instead of mandatory.

In 2015, the Court decided Johnson v. United States. It struck down the "residual clause" of the Armed Career Criminal Act (ACCA) as unconstitutionally vague. The career offender guideline had a residual clause with the same wording.

Then in Beckles v. United States (2017), the Court held that the advisory guidelines cannot be challenged as vague. So if you were sentenced after Booker, Johnson does not help with a guidelines claim. The open question was about sentences imposed before Booker, when the guidelines were mandatory.

The First Circuit allowed a second motion in Moore

In Moore v. United States, 871 F.3d 72 (1st Cir. 2017), the court let a prisoner file a second 2255 motion based on Johnson.

Once you have filed one 2255 motion, you need the court of appeals' permission to file another. 28 U.S.C. § 2255(h). You must rely on a new rule of constitutional law that the Supreme Court has made retroactive.

The court asked two things. First, does the motion rely on a qualifying new rule? Second, could that rule apply to the prisoner's situation? If the answer to either is clearly no, permission is denied. If it is close, the district court should decide. In the court's words:

The court of appeals should first consider whether, as a legal matter, the petitioner's motion relies on a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court and that was previously unavailable. If it is clear that one of these questions must be answered in the negative ... the court may deny certification on that ground. But, if the question is close ... the court may leave even . . . a purely legal issue for the district court to resolve. The court of appeals should then consider the mixed question of whether the petitioner's identified constitutional rule . . . appl[ies] to the petitioner's situation. If it is clear as a matter of law, and without the need to consider contested evidence that it does not, the court should deny the certification. Otherwise, the court should grant it.

The government argued that Johnson applies only to the ACCA. Moore argued that Johnson set a broader rule that reaches mandatory guidelines. The First Circuit held that Moore had the better argument and granted permission. Moore had filed in May 2016, shortly before the one-year deadline for Johnson claims ran out in late June 2016.

The big takeaway at the time: if you were sentenced in the First Circuit before Booker and did not file by June 26, 2016, either (1) a request for permission to file a second 2255 (if you had filed one before) or (2) a 2255 motion raising Johnson in the district court, your motion would likely be untimely. (The original article said July 26, 2016. The correct date, one year after Johnson, is June 26, 2016.)

The Fourth and Sixth Circuits called these claims too late

Other circuits disagreed. The Fourth and Sixth Circuits held that these motions were untimely under 28 U.S.C. § 2255(f)(3). That section gives you one year from when the Supreme Court first recognizes a new right. These courts said Johnson recognized a right only as to the ACCA. See United States v. Brown, 868 F.3d 297 (4th Cir. 2017); Raybon v. United States, 867 F.3d 625 (6th Cir. 2017). This effectively closed the door to Johnson challenges to pre-Booker sentences in the Fourth and Sixth Circuits.

The original article described the Eleventh Circuit as known for shutting the courthouse doors to federal prisoners. That court had held that the mandatory guidelines "did not alter the statutory boundaries for sentences set by Congress for the crime." In re Griffin, 823 F.3d 1350, 1355 (11th Cir. 2016). The article predicted that the Eleventh Circuit would likely join the Fourth and Sixth Circuits in rejecting these claims.

The Third Circuit allowed a second motion in Hoffner

In In re Hoffner, 870 F.3d 301 (3d Cir. 2017), the Third Circuit also granted permission to file a second 2255 motion. Hoffner had applied in 2015.

The government opposed permission. It argued that Johnson is not "the rule on which the claim relies."

The court said § 2255(h)(2) "supports a permissive and flexible approach to whether a petitioner 'relies' on a qualifying new rule." Citing a dissenting opinion from the Fifth Circuit, it explained:

a motion "relies" on a qualifying new rule where the rule "substantiates the movant's claim." This is so even if the rule does not "conclusively decide" the claim or if the petitioner needs a "non-frivolous extension of a qualifying rule." Section 2255(h)(2) does not require that qualifying new rule be "the movant's winning rule," but "only that the movant rely on such a rule." It is for the district court to evaluate the merits of the second or successive habeas petition in the first instance. This includes "whether the invoked new rule should ultimately be extended in the way that the movant proposes" or whether his "reliance is misplaced."

The government asked the court to follow the Eighth Circuit's approach in Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016). Donnell denied permission because applying Johnson to pre-Booker sentences would extend it. The Third Circuit rejected Donnell. "The Eighth Circuit's approach is inconsistent with the text of Section 2255(h)(2), which contains only 'three prerequisites,' and no requirement that we scrutinize a motion to see if it would produce a 'second new rule,'" the court held. So it granted permission to file a second 2255 motion.

Getting permission is only the first step, though. A year later, in Green, the Third Circuit held that these claims were untimely.

Brandon Sample's view in 2017

Note (October 2026): This was the author's view in 2017. The Supreme Court never decided the question, and the Third Circuit later held these claims untimely in Green. See the update at the top.

If you filed a 2255 motion, or asked permission to file a second one, in the First or Third Circuit challenging a pre-Booker sentence under Johnson, your claims deserved their day in court. But you had to file by June 26, 2016, or the motion would be untimely. It was also doubtful that the Justice Department under Attorney General Sessions would waive the statute of limitations defense.

In the Fourth, Sixth, or Eighth Circuits, you could not file a timely 2255 motion (first or second) on this basis. But if the Supreme Court later held that Johnson applies to mandatory guideline sentences, people in those circuits should then be able to seek permission to file based on that new decision, with a one-year deadline running from it. The Supreme Court seemed likely to decide the question at some point.

Where pre-Booker Johnson claims stand now

The one-year window based on Johnson closed on June 26, 2016. If you did not file by then, a Johnson claim against a mandatory guideline sentence is almost certainly too late. Only a new Supreme Court decision recognizing this right would start a new one-year clock under 28 U.S.C. § 2255(f)(3). If you have already filed a 2255 motion, you would also need the court of appeals' permission under § 2255(h). For help with a 2255 motion, see 2255motion.com.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.