                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSJanuary 31, 2013
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 12-3106
       v.                                                (D. Kansas)
 BILLY TRINKLE,                             (D.C. Nos. 2:10-CV-02451-JWL and
                                                 2:07-CR-20168-JWL-15)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, EBEL, and MURPHY, Circuit Judges.


      Defendant Billy Trinkle filed a motion for relief under 28 U.S.C. § 2255 in

the United States District Court for the District of Kansas, claiming that his two

prior convictions for criminal threat did not constitute convictions of “crimes of

violence” under the career-offender sentencing enhancement of the United States

Sentencing Guidelines, § 4B1.1. The court denied the motion but granted his

request for a certificate of appealability (COA) on one ground for his claims. See

28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of relief under

§ 2255). Defendant appeals on that ground and seeks a COA from this court on

an additional ground. Because Defendant’s § 2255 motion raises only

nonconstitutional sentencing issues, a COA is improper. See id. § 2253(c)(2)

(COA may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right” (emphasis added)). Accordingly, we vacate the

COA as unauthorized, deny the request for an additional COA, and dismiss the

appeal.

      Defendant was convicted on one count of conspiracy to possess with intent

to distribute 50 grams or more of cocaine base, see 21 U.S.C. § 846, and one

count of use of a communication facility in the commission of a drug-trafficking

crime, see id. § 843(b). The presentence investigation report (PSR) classified

Defendant’s two prior Kansas convictions for criminal threat, see Kan. Stat. Ann.

§ 21-3419 (2009) (repealed 2011), as crimes of violence, see USSG § 4B1.2(a).

It treated Defendant as a career offender, see id. § 4B1.1(a), and assigned him a

criminal-history category of VI. The resulting Guidelines sentencing range was

360 months’ to life imprisonment. The court adopted the findings of the PSR but

varied downward, imposing a sentence of 240 months’ imprisonment. Judgment

was entered on September 18, 2009.

      In August 2010 Defendant filed his § 2255 motion, claiming that his two

criminal-threat convictions were not crimes of violence under USSG

§ 4B1.2(a)(1) (defining crime of violence to include crimes that “ha[ve] as an

element the use, attempted use, or threatened use of physical force against the

person of another” (emphasis added)). He argued that the state offense could be

committed without “violent force—that is, force capable of causing physical pain

or injury to another person,” Johnson v. United States, 130 S. Ct. 1265, 1271

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(2010) (construing physical force), and that the offense need not necessarily be

committed “against the person of another,” USSG § 4B1.2(a)(1). The district

court denied relief on February 7, 2011, ruling that “a conviction for threatening

to commit violence necessarily satisfies the Johnson definition of the requisite

physical, violent force,” R., Vol. 1 at 91 (Mem. & Order at 6, United States v.

Trinkle, Nos. 07-20168-JWL & 10-2451 (D. Kan. Feb. 7, 2011)), and that

Defendant had waived the argument that the state crime need not be committed

against the person of another.

      Defendant moved for reconsideration. The district court construed the

motion as (1) reasserting the argument that the Kansas criminal-threat offense did

not satisfy the requirement of “violent force” under Johnson, and (2) raising the

additional argument that the criminal-threat offense could not be a crime of

violence because it could be committed with a mens rea of only recklessness, see

United States v. Zuniga-Soto, 527 F.3d 1110, 1122, 1123–24 (10th Cir. 2008)

(Texas assault conviction for “intentionally, knowingly, or recklessly caus[ing]

bodily injury to another” is not a crime of violence (internal quotation marks

omitted)). The court again rejected the first ground and denied a COA. Also, it

declined to consider the second argument, finding “it to be an improper new

argument on a motion to reconsider,” R., Vol. 1 at 122 (Mem. & Order at 10,

Trinkle, Nos. 07-20168-JWL & 10-2451 (D. Kan. Dec. 14, 2011)); but

recognizing that the argument may have merit, it granted a COA, explaining that

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“reasonable jurists might disagree where to draw the line in concluding that a

motion for reconsideration advances a new argument within the same legal issue.”

Id. at 126–27.

      Defendant appeals the rejection of his second argument and seeks a COA to

present his first argument. The problem for Defendant is that a COA will issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added). As we have

explained, under AEDPA, “a COA may issue only when the applicant has made a

substantial showing of the denial of a constitutional right. This is in contrast to

the pre-AEDPA standard . . . that the habeas petitioner had to make a substantial

showing of the denial of a federal right.” United States v. Taylor, 454 F.3d 1075,

1078 (10th Cir. 2006) (citation and internal quotation marks omitted). Here, both

issues pursued by Defendant relate to interpretation of the Guidelines. They

concern only whether Defendant’s criminal-threat convictions come within the

definition of crime of violence in USSG § 4B1.2(a)(1). Such a challenge to the

district court’s Guidelines calculation does not assert a constitutional claim for

which a COA can issue. Cf. United States v. Christensen, 456 F.3d 1205, 1206

(10th Cir. 2006) (whether arson conviction was violent felony under 18 U.S.C.

§ 924(e) was nonconstitutional claim); United States v. Holcomb, 370 F. App’x

943, 947 (10th Cir. 2010) (claim that district court improperly included prior

offenses in criminal-history calculation under USSG § 4A1.2 “does not provide

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the basis for the issuance of a COA because it constitutes no more than an

assertion of non-constitutional sentencing error”).

      Accordingly, we cannot grant a COA on Defendant’s first issue. And the

district court lacked statutory authority to grant a COA on the second issue.

      We VACATE the district court’s COA as improperly granted, DENY an

additional COA, and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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