"Hmm."

That's a paragraph in Judge Rosenbaum's dissent from the denial of en banc review in another fight about Johnson. Judge William Pryor wrote a lengthy opinion respecting the denial. Judges Martin and Rosenbaum each wrote responses.

Here's the Hmm language:

Perhaps for this reason, the Pryor Statement takes a second tack to argue prisoners incorrectly sentenced as career offenders pre-Booker have no cognizable
§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these prisoners were actually sentenced under a mandatory regime. It reasons that since the Supreme Court in Booker found that themandatory Guidelines violated the Sixth Amendment, they “were never really mandatory,” even though courts applied them that way for two decades. Pryor Statement at 22 (emphasis in original).

Hmm.

I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a court sentenced them using a mandatory version of the Guidelines with an indisputably unconstitutionally vague career-offender clause would agree.

Pryor and Rosenbaum also get into it on a metaphysical level:

Here's Pryor:

The second part of Judge Rosenbaum’s statement identifies the heart of my argument, but it offers no meaningful response. I have said that statements like “Booker made the Guidelines advisory” are ubiquitous but not precisely accurate. Judge Rosenbaum’s statement responds only by confirming that they are ubiquitous but makes no effort to refute my point that they are imprecise. See id. at 58–60. I have said that courts used to treat the Guidelines as mandatory but that, as Booker held, they committed legal error by doing so. Judge Rosenbaum’s statement responds only by insisting that courts used to treat the Guidelines as mandatory. See id. at 60. Her statement’s flotilla of quotations from the United States Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense of those statements is false and, second, that courts routinely describe the terms and intended effects of statutes as if they were valid even as they hold the opposite. See, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional and Amateur Sports Protection Act “banned the authorization of sports gambling in casinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176 (“The authority . . . given to the supreme court . . . appears not to be warranted by the [C]onstitution . . . .” (emphasis added)). The second part’s only direct response to my argument—that “the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory”—is that it “is certainly interesting on a metaphysical level.” Statement of Rosenbaum, J., at 60. I appreciate the compliment.

And Rosenbaum's response:

Today, though, the Pryor Statement chalks these remarks up to a failure of linguistic precision and seeks to rewrite history. See Pryor Statement at 17. According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory. Id. at 19. That is certainly interesting on a metaphysical level.
But it ignores reality. Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum. Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as § 3553(b) required, to scores of criminal defendants—including many who still sit in prison because of them.
It’s also a particularly mindboggling bit of judicial fiction to, in one breath, conclude that the Guidelines were always advisory, and in the next, withhold relief from individuals in Lester’s circumstances by noting the advisory Guidelines do not apply retroactively because Booker is a procedural rule, even though, according to the Pryor Statement, the Guidelines always were advisory. Under the Pryor Statement’s reasoning, the Guidelines were never mandatory, but to inmates like Lester, they will always be mandatory, since these prisoners remain subject to their punishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either the Guidelines were never mandatory, in which case, Lester and inmates like Lester would not have been sentenced under the mandatory regime or at least would not remain in prison because of the mandatory regime (a circumstance that is clearly not the case), or they were mandatory until Booker ruled they weren’t, and inmates like Lester can mount Johnson challenges.