FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 13, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1135
(D.C. Nos. 1:16-CV-01505-WYD and
JASON EDWARD RIFORGIATE, a/k/a 1:08-CR-00425-WYD-1)
Robert Edward Riforgiate, (D. Colo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
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Defendant Jason Riforgiate pleaded guilty in 2009 to four counts of armed bank
robbery, see 18 U.S.C. § 2113, and one count of brandishing a firearm during a crime of
violence, see 18 U.S.C. § 924(c)(1)(A)(ii). The armed-bank-robbery convictions served
as the predicate crimes of violence for the § 924(c) conviction. Defendant was sentenced
to 97-month concurrent terms on the robbery counts and a consecutive term of 84 months
on the § 924(c) count. After the Supreme Court in Johnson v. United States, 135 S. Ct.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
2551 (2015), held that the residual clause in the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, Defendant filed a motion
under 28 U.S.C. § 2255 seeking to set aside his § 924(c) conviction on the ground that
§ 924(c)(3)(B) is likewise too vague. The district court held that the motion was
untimely and lacked merit. Defendant has been granted a certificate of appealability to
enable him to appeal that ruling. See 28 U.S.C. § 2253(c)(1)(B). We now affirm the
district court on the ground of untimeliness.
Ordinarily, a § 2255 motion must be filed within a year of when the judgment on
the criminal conviction became final. See 28 U.S.C. § 2255(f)(1). That deadline has long
passed. Defendant, however, relies on § 2255(f)(3), which permits a motion to be filed
within a year of “the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” In Welch v. United States, 136
S. Ct. 1257 (2016), the Supreme Court held that Johnson is retroactively applicable.
Defendant argues that Welch makes his § 2255 motion timely.
Defendant’s argument fails in this circuit. In United States v. Greer, 881 F.3d
1241 (10th Cir. 2018), we held that a defendant relying on Johnson can proceed under
§ 2255(f)(3) only if the defendant is challenging the residual clause of the ACCA on
vagueness grounds. See id. at 1244–49. Since Defendant was not sentenced under the
ACCA, he cannot invoke § 2255(f)(3) and his motion is untimely.
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We AFFIRM the district court’s dismissal of Defendant’s § 2255 motion.
Entered for the Court
Harris L Hartz
Circuit Judge
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