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

                             FOR THE TENTH CIRCUIT                            January 24, 2017
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-3263
                                                   (D.C. No. 2:05-CR-20017-JWL-2)
MIGUEL ROMERO,                                                 (D. Kan.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before TYMKOVICH, Chief Judge, EBEL and BACHARACH, Circuit Judges.
                 _________________________________

       Miguel Romero seeks a certificate of appealability (COA) to appeal the district

court’s dismissal of his request for leave to file a second or successive 28 U.S.C. § 2255

motion. We deny a COA and dismiss this matter.

       After being found guilty of multiple drug offenses, Mr. Romero was sentenced to

life in prison on three counts and concurrent multi-year sentences on three other counts.

This court affirmed. United States v. Verdin-Garcia, 516 F.3d 884, 899 (10th Cir. 2008).

Mr. Romero later unsuccessfully sought relief under § 2255. United States v. Romero,

574 F. App’x 848, 848-49 (10th Cir. 2014).



       *
         This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       In June 2016, Mr. Romero filed in the district court a request for appointment of

counsel and for leave to file a second or successive § 2255 motion under Johnson v.

United States, 135 S. Ct. 2551 (2015). In Johnson, the Supreme Court invalidated the so-

called “residual clause” portion of the definition of “violent felony” in the Armed Career

Criminal Act (ACCA). See id. at 2563. In Welch v. United States, 136 S. Ct. 1257, 1268

(2016), the Supreme Court made Johnson retroactively applicable to cases on collateral

review. Mr. Romero sought to use Johnson to challenge the application of Sentencing

Guideline § 2D1.1(b)(1), which provides for a two-level increase for possessing a

dangerous weapon in connection with a drug offense.

       The district court explained to Mr. Romero that it did not have the ability to

authorize a second or successive § 2255 motion and that it lacked jurisdiction to consider

an unauthorized second or successive motion. See In re Cline, 531 F.3d 1249, 1251-52

(10th Cir. 2008) (per curiam). It further declined to transfer the motion to this court for

authorization because Mr. Romero could not assert a cognizable Johnson claim, given

that § 2D1.1(b)(1) does not contain the “residual clause” language that Johnson

invalidated. Accordingly, the district court denied the request for appointed counsel and

dismissed the remainder of the motion.

       Mr. Romero then filed a motion to alter or amend the judgment, arguing that he

did have a viable Johnson claim. The district court again concluded that Johnson had no

effect on § 2D1.1(b)(1) and denied the motion.

       To appeal, Mr. Romero must obtain a COA. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). Where, as here, a district court has dismissed a

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filing on procedural grounds, for a COA the movant must show both “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       No reasonable jurist could dispute the district court’s conclusion that it lacked

jurisdiction over Mr. Romero’s Johnson claim. As set forth in 28 U.S.C. §§ 2255(h) and

2244(b), a federal prisoner cannot file a second or successive § 2255 motion unless he

first obtains authorization from this court—not the district court. And “[a] district court

does not have jurisdiction to address the merits of a second or successive § 2255 . . .

claim until this court has granted the required authorization.” Cline, 531 F.3d at 1251.

Because Mr. Romero did not obtain this court’s authorization before filing his motion,

the district court lacked jurisdiction to decide the Johnson claim.

       Mr. Romero asserts that the district court should have transferred his motion to

this court for authorization. Whether to transfer an unauthorized second or successive

§ 2255 motion to this court, rather than to dismiss it, is a matter within the district court’s

discretion. See id. at 1252. “Where there is no risk that a meritorious successive claim

will be lost absent a . . . transfer, a district court does not abuse its discretion if it

concludes it is not in the interest of justice to transfer the matter to this court for

authorization.” Id.

       We agree with the district court that Mr. Romero’s proposed Johnson claim lacks

merit because § 2D1.1(b)(1) does not contain the “residual clause” language invalidated

by Johnson. Relying on a Guideline commentary noting “[t]he enhancement for weapon

                                                 3
possession in subjection (b)(1) reflects the increased danger of violence when drug

traffickers possess weapons,” U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n.11(A)

(U.S. Sentencing Comm’n), Mr. Romero argues that the enhancement “render[s] vague

thought into the judge[’]s mind that Appellant committed a crime of violence,” Mot. at 7,

making § 2D1.1(b)(1) akin to a crime of violence. This court has invalidated, under

Johnson, the residual-clause portion of the definition of “crime of violence” formerly in

another Guideline, § 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1211

(10th Cir. 2015). But § 4B1.2(a)(2) had the same residual-clause language as the ACCA.

See Madrid, 805 F.3d at 1210. Section 2D1.1(b)(1) does not. Mr. Romero’s attempt to

link Johnson to a Guideline that has no residual clause, through a commentary that also

fails to include residual-clause language, is far too attenuated to create a colorable

Johnson-based challenge to the § 2D1.1(b)(1) increase. Because Mr. Romero was not at

risk of losing a meritorious claim, it follows that the district court did not abuse its

discretion in declining to transfer his motion to this court for authorization.

       A COA is denied and this matter is dismissed.


                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




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