                                                                   FILED
                                                       United States Court of Appeals
                          UNITED STATES COURT OF APPEALS       Tenth Circuit

                                    TENTH CIRCUIT                           June 21, 2017

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                               No. 16-6317
                                                    (D.C. Nos. 5:16-CV-00423-C and
    v.                                                    5:07-CR-00058-C-2)
                                                              (W.D. Okla.)
    MICHAEL DUANE RABIEH,

          Defendant - Appellant.


                              ORDER AND JUDGEMENT *


Before PHILLIPS, McKAY, McHUGH, Circuit Judges.


         Michael Rabieh pled guilty to knowingly and intentionally distributing

methamphetamine in violation of 21 U.S.C. § 841(a)(1). The district court applied the

career-offender enhancement under U.S. Sentencing Guidelines § 4B1.1, and sentenced

Mr. Rabieh to 151 months’ imprisonment. Several years later, Mr. Rabieh filed a pro se

motion for federal habeas relief under 28 U.S.C. § 2255 based on Johnson v. United

States, 135 S. Ct. 2251 (2015), which held that the residual clause of the Armed Career


*
  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 This order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1 and 10th
Circuit Rule 32.1.
Criminal Act was unconstitutionally vague, and United States v. Madrid, 805 F.3d 1204

(10th Cir. 2015), which applied Johnson to the residual clause for the career-offender

sentencing enhancement, as defined in U.S.S.G. § 4B1.2(a)(2).

       The district court denied the § 2255 motion because the plea agreement contained

a collateral-attack waiver. Subsequently, the district court granted a certificate of

appealability on whether enforcement of the waiver would constitute a miscarriage of

justice under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004). However, after the

certificate was granted, the Supreme Court issued its opinion in Beckles v. United States,

137 S. Ct. 886 (2017). Beckles held that the Sentencing Guidelines, including the

residual clause of § 4B1.2(a)(2), are not susceptible to vagueness challenges under the

Due Process Clause. Thus, we need not address whether the plea waiver precludes this

collateral attack because Mr. Rabieh’s § 2255 motion lacks merit in light of Beckles.

       AFFIRMED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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