FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 5, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1282
(D.C. Nos. 1:16-CV-01111-LTB and
JASON GREER, 1:02-CR-00184-LTB-1)
(D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Jason Greer appeals from the district court’s judgment denying him relief on
his second motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence.
Greer sought to invalidate his sentence to the extent that it was based on his status as
a career offender under the advisory Sentencing Guidelines. Greer’s claim is
foreclosed by the Supreme Court’s decision in Beckles v. United States, __ U.S. __,
137 S. Ct. 886 (2017). Consequently, exercising jurisdiction under 28 U.S.C. § 1291,
we affirm the district court’s judgment.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
“Greer was convicted following a guilty plea of one count of armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d). The district court sentenced him
to 188 months’ imprisonment, followed by a five-year term of supervised release.”
United States v. Greer, 85 F. App’x 181, 181-82 (10th Cir. 2004) (Greer I)
(unpublished). The district court based Greer’s sentence, in part, on a finding that he
qualified as a career offender under the advisory Sentencing Guidelines because he
had at least two prior felony convictions for crimes of violence. See id. at 182; U.S.
Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2002) (USSG).
We dismissed his direct appeal. See Greer I, 85 F. App’x at 184. And the district
court denied his first § 2255 motion.
In 2016, Greer moved for authorization to file a second § 2255 motion based
upon the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015). Johnson voided, in part, the definition of a qualifying “violent felony” used
for sentence enhancement under the Armed Career Criminal Act (ACCA). Id. at
2563. The Supreme Court held that the “residual clause” in the definition—covering
crimes “involv[ing] conduct that presents a serious potential risk of physical injury to
another,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated the constitutional prohibition
against vague criminal laws and that an increased sentence based on that clause
violates a defendant’s right to due process. Johnson, 135 S. Ct. at 2557, 2563. In
Welch v. United States, __ U.S. __, 136 S. Ct. 1257, 1268 (2016), the Court made
Johnson’s holding retroactive to cases on collateral review.
2
This court extended Johnson’s holding to identical residual-clause language
previously used to define “crime of violence” in the career-offender guideline, USSG
§ 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir.
2015). We authorized Greer to file a second § 2255 motion challenging his
career-offender sentence because at least one of his prior convictions qualified as a
crime of violence under the residual-clause definition in § 4B1.2(a)(2). See In re
Greer, No. 16-1179, slip op. at 1 (10th Cir. May 13, 2016); see also In re Encinias,
821 F.3d 1224, 1226 (10th Cir. 2016) (challenge to a sentence that was enhanced
based on the residual clause in § 4B1.2(a)(2) is “sufficiently based on Johnson to
permit authorization under § 2255(h)(2)”).
The district court denied Greer’s second § 2255 motion. It held that he still
had at least two prior convictions that qualified as crimes of violence as defined in
the Guidelines without applying the residual clause. The district court granted Greer
a certificate of appealability. “We review the district court’s legal rulings on a
§ 2255 motion de novo and it findings of fact for clear error.” United States v.
Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (internal quotation marks and alteration
omitted).
Greer argues that his prior conviction for assault on a peace officer under
Colorado law is not a crime of violence because that offense does not “ha[ve] as an
element the use, attempted use, or threatened use of physical force against the person
of another,” as required by USSG § 4B1.2(a)(1). We need not decide this question.
After we docketed Greer’s appeal, the Supreme Court issued its decision in Beckles.
3
Like Greer, the petitioner in Beckles sought to invalidate his sentence to the extent
that it was based on § 4B1.2(a)’s residual clause. See Beckles, 137 S. Ct. at 891.
Contrary to our decision in Madrid, the Supreme Court rejected the petitioner’s claim
that the career-offender residual clause is void for vagueness under the reasoning in
Johnson. See id. at 895. The Court distinguished its holding in Johnson, explaining:
Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible
range of sentences. To the contrary, they merely guide the exercise of a
court's discretion in choosing an appropriate sentence within the statutory
range. Accordingly, the Guidelines are not subject to a vagueness
challenge under the Due Process Clause. The residual clause in
§ 4B1.2(a)(2) therefore is not void for vagueness.
Id. at 892. Thus, Beckles forecloses any claim that a Guidelines provision is subject
to a vagueness challenge. Greer’s claim that his sentence is invalid because
§ 4B1.2(a)(2)’s residual clause is void for vagueness fails as a matter of law.
The district court’s judgment is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
4