United States v. Evans

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                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 27, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-1171
                                                  (D.C. Nos. 1:16-CV-00131-JLK &
HENRY ANTHONY EVANS,                                   1:11-CR-00104-JLK-1)
                                                              (D. Colo.)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Henry Evans, a federal prisoner, filed a pro se 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. He argued that he was sentenced as a career

offender under the residual clause of U.S. Sentencing Guidelines § 4B1.2(a)(2), and

that the residual clause is unconstitutionally vague because it uses essentially the

same language as the language in the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(2)(b), which was held to be unconstitutionally vague in Johnson v. United



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
States, 135 S. Ct. 2551, 2557, 2563 (2015). The district court summarily denied the

§ 2255 motion but granted a certificate of appealability (COA).

       The Supreme Court has now held that the U.S. Sentencing Guidelines,

including the residual clause of § 4B1.2, are not subject to constitutional vagueness

challenges under the Due Process Clause. Beckles v. United States, __ S. Ct. __,

No. 15-8544, 2017 WL 855781 (Mar. 6, 2017). Accordingly, the judgment of the

district court is affirmed.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




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