
    Bobby Joe GIPSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 17-5333
    United States Court of Appeals, Sixth Circuit.
    Filed February 07, 2018
    Tyrone Jemal Paylor, Federal Public Defender, Memphis, TN, for Petitioner-Appellant
    Bobby Joe Gipson, Pro Se
    Kevin G. Ritz, Assistant U.S. Attorney, Office of the U.S. Attorney, Memphis, TN, for Respondent-Appellee
    Before: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.
   KETHLEDGE, Circuit Judge

Bobby Gipson challenges under 28 U.S.C. § 2255 a prison sentence he received nearly 20 years ago. He contends that he was sentenced under the “residual clause” of the then-mandatory Sentencing Guidelines, which required higher sentences for defendants with at least two prior convictions for crimes involving “conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (1997). In Johnson v. United States, the Supreme Court found unconstitutionally vague an identically worded clause in the Armed Career Criminal Act. — U.S.-, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). Gipson argues that sentences decided under the Guidelines’ residual clause when that clause was still mandatory — i.e., as binding on courts as the Armed Career Criminal Act — are likewise unconstitutional under Johnson.

That argument comes to us in the context of a § 2255 motion, so Gipson’s motion is untimely unless Johnson recognized a new right that applies retroactively to him on collateral review. See 28 U.S.C. § 2255(f)(3). The problem, then, is that Johnson dealt only with the Armed Career Criminal Act, not with' the Guidelines, See Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). That leaves defendants sentenced under the Guidelines’ residual clause — even when that clause was mandatory — without “a ‘right’ that ‘has been newly recognized by the Supreme Court’ let alone one that was ‘made retroactively applicable to cases on collateral review.’ ” Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017) (quoting § 2255(f)(3)).

We acknowledge the irony that a defendant in a similar position to that of the defendant in Johnson seems unable even to seek the same relief. But the fact of the matter is that Gipson can seek relief under § 2255(f)(3) only if the Supreme Court recognizes a new right that applies retroactively to him. And per Raybon the Court has not yet done so.

The district court’s judgment is affirmed.  