FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 16, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3131
(D.C. Nos. 6:16-CV-01304-JTM) &
DEXTER DEWAYNE BAKER, 6:12-CR-10076-JTM-1
(D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before MORITZ, McKAY, and KELLY, Circuit Judges.
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Dexter Baker, a federal prisoner proceeding pro se, appeals the district court’s
order denying his second or successive 28 U.S.C. § 2255 motion to vacate, set aside,
or correct his sentence. Baker argued that he was sentenced as a career offender
under the residual clause of United States Sentencing Guidelines Manual (USSG)
§ 4B1.2(a)(2) (U.S. Sentencing Comm’n 2011), based in part on a Kansas conviction
for aggravated battery. He asserted a claim for relief based on Johnson v. United
States, 135 S. Ct. 2551, 2557, 2563 (2015) (holding that the residual clause of the
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Armed Career Criminal Act’s (ACCA) definition of “violent felony” is
unconstitutionally vague). On June 28, 2016, this court granted Baker authorization
to file a second or successive § 2255 motion to challenge his sentence under Johnson.
On March 6, 2017, the Supreme Court decided Beckles v. United States,
137 S. Ct. 886 (2017). There, 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.”
Id. at 892. Thus, the Court held that “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.
The district court then denied Baker’s second or successive § 2255 motion,
holding that Beckles didn’t provide a retroactive basis for Baker to challenge his
sentence. Baker filed a motion to reconsider arguing that the court should have
addressed his challenges to his underlying convictions. The district court treated the
motion as filed under Fed. R. Civ. P. 60(b) and denied it because it revisited matters
already addressed and dismissed. The court granted a certificate of appealability.
On appeal, Baker concedes that the district court correctly held that a Johnson
claim challenging an advisory guidelines sentence imposed under the residual clause
of USSG § 4B1.2(a) is foreclosed by Beckles. Nevertheless, he contends that his
underlying aggravated-battery and drug convictions couldn’t be used to enhance his
sentence under USSG § 4B1.1(a) as either a crime of violence or a controlled
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substance offense. Thus, he insists that the district court should have granted his
Rule 60(b) motion.
But Baker’s motion to reconsider asserted a federal basis for relief from his
sentence, so it should have been treated as a second or successive § 2255 motion.
See Peach v. United States, 468 F.3d 1269, 1271 (10th Cir. 2006) (per curiam)
(stating that a Rule 60(b) motion should be treated as a second or successive
application “where the motion could be said to bring a claim, i.e., to assert a federal
basis for relief from the underlying conviction or sentence”). Consequently, the
district court didn’t have jurisdiction to consider the merits of the motion to
reconsider. See United States v. Springer, 875 F.3d 968, 972 (10th Cir. 2017)
(holding district court doesn’t have jurisdiction even to deny relief for an
unauthorized second or successive motion).
We vacate the order denying the motion to reconsider and remand with
instructions to dismiss it as a second or successive § 2255 motion. We affirm the
denial of the § 2255 motion.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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