                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          February 6, 2018

                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-1282

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].


                                           2
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 F. App’x 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




      1
       U.S.S.G. § 4B1.2 (a)(2)’s list of enumerated offenses was amended in 2016.
                                           3
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.    DISCUSSION

      “On appeal from the denial of a § 2255 motion, ordinarily we review the

district court’s findings of fact for clear error and its conclusions of law de novo.”

United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (internal quotation

      2
        Mr. Greer did not challenge his previous conviction for second degree
burglary of a dwelling, and the government concedes that his previous convictions
for escape and third degree assault are not crimes of violence.
                                            4
marks omitted). We are not bound by the district court’s reasoning and may “affirm

on any ground adequately supported by the record.” United States v. Damato, 672

F.3d 832, 844 (10th Cir. 2012) (internal quotation marks omitted).

      Before addressing the merits of Mr. Greer’s claim, he must show that he can

satisfy the procedural requirements of the Antiterrorism and Effective Death Penalty

Act (AEDPA). See 28 U.S.C. § 2255. The first of these barriers is timeliness.

      Pursuant to AEDPA, post-conviction motions for habeas relief filed under

§ 2255 must be brought within one year of the date on which “the judgment of

conviction becomes final” or “the right asserted [by petitioner] 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.” 28

U.S.C. § 2255(f)(1), (3). A rule is newly recognized by the Supreme Court when it is

“not dictated by precedent.” Chaidez v. United States, 568 U.S. 342, 347 (2013)

(internal quotation marks omitted). Rules are dictated by precedent when they are

“apparent to all reasonable jurists.” Id. (internal quotation marks omitted).

Conversely, a rule is not new if it is “merely an application” of an existing right or

principle. Id. at 348 (internal quotation marks omitted). Mr. Greer claims the

government waived any timeliness defense by conceding he had “asserte[d] a claim

based on Johnson,” and that the government “knowingly failed to press” a timeliness

argument in the district court. But review of the government’s district court brief

refutes the claim that this concession was intended to waive the timeliness issue.

Rather than “deliberately steer[ing] the District Court away from the question [of

                                            5
timeliness] and towards the merits” of the motion, Wood v. Milyard, 566 U.S. 463,

474 (2012), the government argued extensively that the motion was untimely because

Johnson did not apply retroactively to Guidelines cases on collateral review. Indeed,

immediately after characterizing Mr. Greer’s claim as a Johnson claim, the

government argued that, because “the ‘right’ initially recognized in Johnson has not

been made retroactively applicable [to] collateral proceedings challenging the

application of the sentencing guidelines[,] . . . § 2255(f)(3) does not apply.”

Therefore, the government continued, § 2255(f)(3) does not rescue Mr. Greer’s claim

because it relies on “the rule that the [G]uidelines residual clause is

unconstitutional—a rule the Tenth Circuit (but not the Supreme Court) has

recognized as an extension of Johnson.”3 This argument adequately preserved the

government’s argument and Mr. Greer’s motion is untimely unless he can show that

it is based on a right newly recognized and made retroactive on collateral review by

the Supreme Court.

      In an attempt to make this showing, Mr. Greer relies on our recent decision in

United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017), petition for cert. filed (U.S.


      3
        The government’s concession that Mr. Greer had asserted a Johnson claim—
as well as its initial concession that Johnson invalidated the Guidelines residual
clause—stemmed from binding precedent in this circuit that has since been
overturned by the Supreme Court. See United States v. Madrid, 805 F.3d 1204, 1211
(10th Cir. 2015), abrogated by Beckles v. United States, 137 S. Ct. 886 (2017). We
are not bound to accept the government’s concession on a point of law, see Orloff v.
Willoughby, 345 U.S. 83, 87 (1953), or on the existence of constitutional error, see
United States v. Resendiz-Patino, 420 F.3d 1177, 1182-83 (10th Cir. 2005). The
government requests that we ignore its concession and, in light of the intervening
change in the law caused by the Supreme Court’s decision in Beckles, we do so.
                                            6
Dec. 19, 2017) (No. 17-7157). He asserts that his petition is timely under Snyder

because, although he was not sentenced under the ACCA, he has “asserted” a

Johnson claim. Mr. Greer’s interpretation of Snyder would require this court to find

that, no matter what the underlying claim, any petitioner can avoid AEDPA’s clear

time limits simply by invoking a right newly recognized by the Supreme Court.

Despite its broad language, Snyder is not so all encompassing.

      In Snyder, the petitioner pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). As a result of two prior convictions and

his current offense, Mr. Snyder was sentenced under the enhanced penalty provisions

of the ACCA. See 18 U.S.C. § 924(e). Like the Guidelines, the ACCA enhances a

defendant’s sentence if he has three prior convictions for a “violent felony.” Id.

§ 924(e)(1). A “violent felony” under the ACCA mirrors the definition of a “crime of

violence” under the Guidelines. Compare 18 U.S.C. § 924(e)(2)(B), with U.S.S.G.

§ 4B1.2(a).

       Although Mr. Snyder objected to the ACCA enhancement at sentencing, he

did so on the ground that the fact of his prior convictions had not been alleged in the

indictment or found by a jury. Snyder, 871 F.3d at 1125. The sentencing court

rejected that argument and we affirmed on direct appeal. See United States v. Snyder,

158 F. App’x 942, 944 (10th Cir. 2005) (unpublished). Mr. Snyder did not raise at

sentencing or on direct appeal any contention that his prior convictions did not

qualify as “violent felonies” under the ACCA.



                                           7
      Ten years later, the Supreme Court issued Johnson, and within one year of the

decision, Mr. Snyder filed a petition for collateral relief under 28 U.S.C. § 2255,

claiming that his enhanced sentence under the ACCA was unconstitutional. Snyder,

871 F.3d at 1125. Mr. Snyder claimed that although his motion had been filed long

after the one-year anniversary of his final conviction, it was timely because it was

filed within one year of the Supreme Court’s decision in Johnson. See id. at 1125–26.

The district court rejected Mr. Snyder’s reliance on Johnson because the record was

silent on whether the sentencing court had imposed an enhanced ACCA sentence

under the residual clause or the enumerated offenses clause.4 Id. That is, because Mr.

Snyder could not show that his sentence was based on the specific clause of the

ACCA held unconstitutional in Johnson, the district court dismissed the motion as

untimely. Id.

      On appeal, we held the motion was timely, but affirmed dismissal on the

merits. Id. at 1126. With respect to timeliness, the majority in Snyder held that “in

order to be timely under § 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly

recognized right, regardless of whether or not the facts of record ultimately support

the movant’s claim.” Id. Thus, the majority held that Mr. Snyder’s motion was timely

because he had alleged that his “ACCA sentence is no longer valid under Johnson.”

Id. (internal quotation marks omitted). This is the critical difference between Mr.

Snyder and Mr. Greer.

      4
         Mr. Snyder argued that two of his prior convictions no longer qualified as
crimes of violence. United States v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017),
petition for cert. filed (U.S. Dec. 19, 2017) (17-7157).
                                           8
      Mr. Snyder’s claim raised a factual question about which clause of the ACCA

the sentencing court relied on in enhancing his sentence. If that fact were resolved in

his favor, he would have an unquestionable and newly-recognized right to the relief

requested. Thus the question in Mr. Snyder’s case was not whether the residual

clause of the ACCA constitutionally authorized his sentence, but whether he was

sentenced under that residual clause. And a finding that Mr. Snyder was sentenced

under the residual clause of the ACCA required that he be resentenced because there

is no question that the right not to be sentenced under the residual clause of the

ACCA is a newly recognized right made retroactive on collateral review by the

Supreme Court in Johnson. The same is not true of Mr. Greer. A factual finding that

Mr. Greer was sentenced under the residual clause of the mandatory Guidelines does

not end our inquiry but raises a new one. Such a finding would then require this court

to address the constitutionality of the residual clause of the mandatory Guidelines in

the first instance on collateral review. And even assuming Mr. Greer presents a

compelling argument for finding the clause unconstitutional, such a task exceeds the

authority of this court under AEDPA.

      Only the Supreme Court can recognize a new constitutional right. See Dodd v.

United States, 545 U.S. 353, 357–59 (2005). While circuit courts can apply the

reasoning of Johnson to support a finding that the residual clause of similarly worded

statutes are unconstitutionally vague on direct appeal, our review under AEDPA is

more limited. AEDPA limits federal habeas relief to new constitutional rights

recognized by the Supreme Court. See id. For AEDPA purposes:

                                           9
      [A] Supreme Court case has “recognized” an asserted right within the
      meaning of § 2255(f)(3) if it has formally acknowledged that right in a
      definite way. Cf. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct.
      1495, 146 L. Ed. 2d 389 (2000) (interpreting the phrase “clearly
      established Federal law, as determined by the Supreme Court” within
      another provision of AEDPA to mean “the holdings, as opposed to the
      dicta” of Supreme Court precedent). Correspondingly, if the existence
      of a right remains an open question as a matter of Supreme Court
      precedent, then the Supreme Court has not “recognized” that right. Cf.
      Tyler v. Cain, 533 U.S. 656, 662–64, 121 S. Ct. 2478, 150 L. Ed. 2d 632
      (2001) (interpreting the word “made” within another provision of
      AEDPA—“made retroactive to cases on collateral review by the
      Supreme Court”—to mean “held”).

United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017).

      Under this framework, Mr. Greer has not asserted a right recognized by the

Supreme Court because Mr. Greer has not asserted that his “ACCA sentence” is no

longer valid under Johnson. Indeed, he could make no such claim because Mr. Greer

was not sentenced under the ACCA. The right that Mr. Greer “asserts” is a right not

to be sentenced under the residual clause of § 4B1.2(a)(2) of the mandatory

Guidelines. The Supreme Court has recognized no such right. And nothing in

Johnson speaks to the issue.5 Thus, Mr. Greer has not asserted a right recognized in

Johnson, even under the broad approach adopted in Snyder.




      5
         Despite Mr. Greer’s assertion that Johnson inescapably dictates a finding that
similarly worded mandatory sentencing increases are unconstitutional, language in
Johnson and Welch can be read to imply that Johnson was not intended to extend
outside the scope of the ACCA. See Welch v. United States, 136 S. Ct. 1257, 1262
(2016) (stating that Johnson “cast[s] no doubt on the many laws” using similar
language but requiring an evaluation of the particular facts of the case); Johnson v.
United States, 135 S. Ct. 2551, 2561 (2015) (rejecting the government’s argument
that its holding “place[s] . . . in constitutional doubt” textually similar statutes).
                                          10
       We recently faced a similar situation in Davis v. McCollum, 798 F.3d 1317

(10th Cir. 2015), and reiterated that habeas petitions are only timely if the right

asserted is a right newly recognized by the Supreme Court. There, Mr. Davis was

convicted of first-degree murder in Oklahoma following a botched robbery attempt

and was sentenced to life without the possibility of parole. He was sixteen at the time

of the crime. In 2014, Mr. Davis filed a § 2254 habeas petition alleging, among other

things, that the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460, 465

(2012), which invalidated mandatory life sentences for juveniles, rendered his

sentence unconstitutional. Davis, 798 F.3d at 1319. We denied Mr. Davis a COA on

this claim because “Miller said nothing about non-mandatory life-without-parole

sentencing schemes.” Id. at 1321. As a result, we held it could not provide relief from

sentencing schemes like Oklahoma’s, which afforded the sentencing authority

discretion to sentence a juvenile to life without the possibility of parole. Id.

       Significantly, we rejected Mr. Davis’s argument that “Miller’s logic reaches

beyond invalidating mandatory life-without-parole sentencing schemes for juveniles”

because it “also established more stringent prerequisites to imposing life without the

possibility of parole on juvenile offenders, even in non-mandatory schemes.” Id. We

noted that only the portions of Mr. Davis’s claim which were “asserting the new right

recognized by the [Supreme] Court in Miller” were even potentially timely. Id.

       That right is narrowly drawn: it protects juveniles who commit crimes
       from the mandatory imposition of life without possibility of parole. See
       Miller, [567 U.S. at 465]. Miller did not purport to alter the law
       governing statutory schemes giving the sentencing authority a choice
       between imposing life with or without possibility of parole on juvenile

                                            11
        offenders. In short, while Miller certainly reiterated the relevance of
        youth at sentencing as a general matter, [Mr.] Davis’s argument at best
        relies on an extension of Miller’s logic.

Id. at 1321–22. We concluded that, “because this version of [Mr.] Davis’s argument

does not assert the new right actually recognized in Miller,” it was untimely. Id. at

1322.

        The same is true here. Recall that in Snyder, the majority held a petitioner

serving a sentence enhanced under the ACCA could assert a timely Johnson claim

where the record is silent as to which clause of the ACCA the sentencing court relied

upon in imposing the enhanced sentence. 871 F.3d at 1125–26. But once the majority

examined the relevant legal background environment, it concluded that as a matter of

historical fact, the sentencing court had relied on the enumerated offenses clause,

rather than the residual clause, in sentencing Mr. Snyder as an armed career criminal.

Id. at 1128. And upon reaching that conclusion, the Snyder majority rejected Mr.

Snyder’s claim as not a true Johnson claim. Id. at 1130.

        Here, it is apparent that Mr. Greer has not raised a true Johnson claim because

he was not sentenced under any clause of the ACCA. Instead, as in Davis, Mr. Greer

is attempting to apply the reasoning of Johnson in a different context not considered

by the Court. For the same reasons we explained in Davis, such relief is not available

on collateral review.6 To entertain such an argument would undermine Congress’s



        6
       Additionally, like in Davis, Mr. Greer’s case deals with a question of law—
whether the right asserted by the defendant is the right newly recognized by the
Supreme Court. In contrast, Mr. Snyder’s case dealt with a question of fact—whether
                                            12
intent in passing AEDPA and the “interests of comity and finality” underlying federal

habeas review. See Teague v. Lane, 489 U.S. 288, 308 (1989).

      In summary, the only right recognized by the Supreme Court in Johnson was a

defendant’s right not to have his sentence increased under the residual clause of the

ACCA. The Court did not consider in Johnson, and has still not decided, whether the

mandatory Guidelines can be challenged for vagueness in the first instance, let alone

whether such a challenge would prevail. And it is not for this court acting on

collateral review to do so. Indeed, the federal circuits that have considered the issue

have unanimously held untimely any challenge raised to the mandatory Guidelines

beyond one year after conviction, despite an invocation of Johnson. See Brown, 868

F.3d at 303 (holding that challenge to the mandatory Guidelines is untimely and does

not assert a right recognized in Johnson); Raybon v. United States, 867 F.3d 625,

630–31 (6th Cir. 2017) (holding that because the constitutionality of the mandatory

Guidelines is “an open question, it is not a ‘right’ that ‘has been newly recognized by

the Supreme Court’ let alone one that was ‘made retroactively applicable to cases on

collateral review’”); In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (concluding

that defendant’s successive petition did not assert a right recognized in Johnson); see

also In re Arnick, 826 F.3d 787, 788 (5th Cir. 2016) (per curiam) (denying

authorization to file a successive § 2255 motion relying on a Johnson based challenge

to the Guidelines because “Johnson did not address Section 4B1.2(a)(2) of the


the defendant could show his sentence was authorized or mandated by the ACCA’s
residual clause and was thus entitled to relief under the newly recognized right.
                                           13
Guidelines”).7 We agree with the well-reasoned decisions of our sister circuits and

therefore hold that Mr. Greer’s motion is untimely.

                               III.   CONCLUSION

      We AFFIRM the dismissal of Mr. Greer’s § 2255 motion to vacate his

sentence.




      7
         Although the First and Third Circuits have not yet directly addressed whether
Johnson can support a challenge to the mandatory Guidelines on collateral review,
both have granted a defendant authorization to file a successive § 2255 petition on
the issue. See Moore v. United States, 871 F.3d 72 (1st Cir. 2017); In re Hoffner, 870
F.3d 301 (3d Cir. 2017). In Moore, the First Circuit held that “for the purposes of
deciding [the defendant’s] application for leave to file a successive § 2255 motion,
we are not sufficiently convinced” the challenge is untimely and “the district court
[must] decide in the first instance . . . whether the [mandatory] [G]uidelines fixed
[the defendant’s] sentencing range in the relevant sense that the ACCA fixed
sentences.” 871 F.3d at 84. Similarly, in authorizing Mr. Hoffner’s successive habeas
petition, the Third Circuit held that, for authorization purposes, it was limited to
determining whether the claim relied on a newly asserted right, leaving it to the
district court to evaluate on the merits “whether the invoked new rule should
ultimately be extended in the way that the [defendant] proposes or whether his
reliance is misplaced.” Hoffner, 870 F.3d at 308–09 (internal quotation marks
omitted).
                                          14
