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United States v. Greer

United States Court of Appeals, Tenth Circuit

February 6, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JASON GREER, Defendant-Appellant.

         Appeal 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

          Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with him on the briefs), Denver, Colorado, for Defendant - Appellant.

          Paul 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.

          Before McHUGH, McKAY, and KELLY, Circuit Judges.

          McHUGH, Circuit Judge.

         Jason 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.

         I. BACKGROUND

         Mr. 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 that

(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).[1] 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.

         In 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 force/element clause].")

         Within 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.[2] 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 this court.

         While 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 question.

         II. ...


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