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

                         FOR THE TENTH CIRCUIT                      April 12, 2019

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

    UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                    No. 18-1301
    v.                                    (D.C. Nos. 1:18-CV-01116-JLK &
                                               1:12-CR-00450-JLK-1)
                                                      (D. Colo.)
    JAMES P. BURG,

          Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.

         Mr. James P. Burg was convicted on federal charges of mail fraud

and willful failure to file a tax return, sentenced to 90 months’

imprisonment, and ordered to pay $2,464,099 in restitution. After

unsuccessfully appealing his sentence based on substantive reasonableness,

Mr. Burg sought to vacate his sentence under 28 U.S.C. § 2255, arguing


*
      Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
that the sentencing court had erred in considering conduct not resulting in

a conviction. The district court denied the motion as untimely, prompting

Mr. Burg to appeal, seek a certificate of appealability, and move for leave

to proceed without prepayment of the filing fee. Mr. Burg’s argument on

timeliness and the merits are at least reasonably debatable. See Slack v.

McDaniel, 529 U.S. 473, 475 (2000) (certificate of appealability standard);

see also United States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017)

(timeliness).We thus grant a certificate of appealability and excuse

prepayment. But we affirm the denial of Mr. Burg’s motion invoking

§ 2255.

     Mr. Burg asserts that his motion is timely, arguing that the Supreme

Court newly recognized a constitutional right in Nelson v. Colorado, ___

U.S. ___, 137 S. Ct. 1249 (2017). For the sake of argument, we may assume

that Mr. Burg is correct on timeliness. Even if he is, however, Mr. Burg’s

motion would fail on the merits.

     Mr. Burg argues on appeal that the sentencing court erred in

considering conduct that hadn’t resulted in a conviction. In doing so, the

court applied § 1B1.3 of the United States Sentencing Guidelines, which

requires consideration of relevant conduct. In Mr. Burg’s view, however,

the U.S. Constitution forbids consideration at sentencing of conduct that

hadn’t resulted in a conviction.



                                      2
      The Supreme Court rejected this constitutional challenge in United

States v. Watts, 519 U.S. 148 (1997). But Mr. Burg contends that Watts

was overruled in Nelson v. Colorado, ___ U.S. ___, 137 S. Ct. 1249 (2017).

There the Supreme Court addressed a Colorado law governing recoupment

of court costs for criminal defendants who prove their innocence. Nelson,

137 S. Ct. at 1257–58. The Court invalidated the law under the Fourteenth

Amendment’s Due Process Clause. Id.

      Mr. Burg acknowledges that Nelson didn’t mention Watts, but he

insists that Watts was overruled sub silentio. The Supreme Court cautions

that its “decisions remain binding precedent until [the Supreme Court] sees

fit to reconsider them, regardless of whether subsequent cases have raised

doubts about their continued vitality.” Hohn v. United States, 524 U.S.

236, 252–53 (1998). Given this caution, the Supreme Court does not

normally overrule prior opinions sub silentio. Shalala v. Ill. Council on

Long Term Care, Inc., 529 U.S. 1, 18 (2000).

      In light of the infrequency of this practice, we and every other circuit

court to consider the issue have stated in nonprecedential opinions that

Nelson did not overrule Watts sub silentio. See United States v. Johnson,

732 F. App’x 638, 660 n.19 (10th Cir. 2018) (unpublished) (declining to

presume that Nelson overruled Watts); United States v. Chapman-Sexton,

2018 WL 6653018, at *5 (6th Cir. Dec. 18, 2018) (unpublished) (“Nelson

. . . does not sub silentio overrule United States v. Watts.”); United States

                                      3
v. Swartz, 2018 WL 6641041, at *2 n.4 (2d Cir. Dec. 18, 2018)

(unpublished) (rejecting an argument that Nelson overruled Watts). We

share this view, for the Court in Nelson didn’t consider whether relevant

conduct could be used at sentencing. The Court instead addressed the

constitutionality of a statute upping the burden to prove innocence in order

to recover costs. 137 S. Ct. at 1257–58. Nowhere did the Court address the

constitutionality of considering uncharged conduct at sentencing.

     Nelson did not mention Watts, much less purport to overrule it. We

thus conclude that Nelson did not overrule Watts. And Mr. Burg’s

constitutional claim is foreclosed by Watts. We therefore affirm the denial

of Mr. Burg’s § 2255 motion.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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