from the United States District Court for the District of
Colorado D.C. Nos. 1:16-CV-01111-LTB and 1:02-CR-00184-LTB-1
Lee, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender with him on the briefs), Denver,
Colorado, for Defendant - Appellant.
Farley (Robert C. Troyer, United States Attorney, and Robert
Mark Russel, Assistant United States Attorney, on the
briefs), Office of the United States Attorney, Denver,
Colorado, for Plaintiff - Appellee.
McHUGH, McKAY, and KELLY, Circuit Judges.
McHUGH, Circuit Judge.
Greer appeals the district court's denial of his motion
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. Mr. Greer contends that the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), finding unconstitutional the residual clause of the
Armed Career Criminal Act, also invalidates the identically
worded provision in the mandatory United States Sentencing
Guidelines. He argues that he is entitled to resentencing
because the court relied on the residual clause of the
mandatory Guidelines to enhance his sentence. The district
court denied Mr. Greer's motion, holding that he was
sentenced under the element clause of the mandatory
Guidelines rather than the residual clause. Exercising
jurisdiction under §§ 1291 and 2255(d), we affirm.
Greer was convicted in 2002 of armed bank robbery in
violation of 18 U.S.C. § 2113(a) and (d). At sentencing,
the court found that Mr. Greer had four previous Colorado
convictions which qualified as crimes of violence: (1)
escape; (2) third degree assault; (3) second degree burglary
of a dwelling; and (4) second degree assault on a peace
officer. Relying on these offenses, the district court
concluded that Mr. Greer qualified as a career offender under
§ 4B1.1(a) of the United States Sentencing Guidelines
("Guidelines"). This provision requires
substantially increased sentences for defendants who have
"two prior felony convictions of either a crime of
violence or a controlled substance offense." U.S.S.G.
§ 4B1.1(a). A "crime of violence" is a felony
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another [the
force or element clause], or (2) is burglary of a dwelling,
arson, or extortion, involves use of explosives [the
enumerated offenses clause], or otherwise involves conduct
that presents a serious potential risk of physical injury to
another [the residual clause].
Id. § 4B1.2(a). On November 29, 2002, the court
sentenced Mr. Greer to 188 months' imprisonment and five
years of supervised release. United States v. Greer,
85 Fed.Appx. 181, 181-82 (10th Cir. 2004) (Greer I)
(unpublished). This court subsequently dismissed his direct
appeal, and the district court denied his first 28 U.S.C.
§ 2255 motion. His judgment of conviction became final
on August 5, 2005.
2015, the Supreme Court struck down the residual clause of
the Armed Career Criminal Act (ACCA) as unconstitutionally
vague. Johnson, 135 S.Ct. at 2560, 2563.
Subsequently, the Court held that Johnson was a
substantive rule of constitutional law that applies
retroactively to cases on collateral review. Welch v.
United States, 136 S.Ct. 1257, 1265 (2016). Although the
enumerated offenses clause and the element clause remained
intact, defendants whose sentences were enhanced under the
ACCA's residual clause were entitled to resentencing.
See Johnson, 136 S.Ct. at 2563 ("Today's
decision does not call into question application of the
[ACCA] to the four enumerated offenses, or the remainder of
the Act's definition of a violent felony [the
one year of the Supreme Court's decision in
Johnson, Mr. Greer moved for authorization under 28
U.S.C. § 2255(h) to file a second habeas petition. Mr.
Greer contended his sentence violated Johnson
because the district court relied on the identically worded
residual clause of the mandatory Guidelines to determine that
his second degree assault on a peace officer constituted a
crime of violence. The district court denied Mr. Greer's
motion without reaching his Johnson claims because
it concluded Mr. Greer was convicted under the element
clause, rather than the residual clause of the Guidelines.
But it granted Mr. Greer a certificate of appealability,
permitting him to appeal the district court's decision to
Mr. Greer's appeal was pending, the Supreme Court decided
Beckles v. United States, 137 S.Ct. 886 (2017). In
Beckles, the petitioner moved for § 2255 relief
arguing that Johnson's holding extended to the
residual clause of the current Guidelines. Id. at
891. The Supreme Court rejected this argument, emphasizing
that the advisory Guidelines were not subject to
vagueness challenges because "they merely guide the
exercise of a court's discretion in choosing an
appropriate sentence within the statutory range."
Id. at 892. However, the Court "le[ft] open the
question" whether defendants who were sentenced under
the mandatory Guidelines-as Mr. Greer was-"may
mount vagueness attacks on their sentences."
Id. at 903 n.4 (Sotomayor, J., concurring in the
judgment). Mr. Greer now asks this court to answer that