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

                       FOR THE TENTH CIRCUIT                          October 7, 2019
                     _________________________________
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                    No. 17-4160
v.                                        (D.C. Nos. 2:16-CV-00662-JNP &
                                               2:93-CR-00281-JNP-1)
ALFRED RAY CESSPOOCH,                                 (D. Utah)

        Defendant - Appellant.
                    _________________________________

                                  ORDER
                     _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                _________________________________

      The issue in this appeal involves the timeliness of Mr. Alfred Ray

Cesspooch’s motion to vacate his sentence. The district court dismissed the

motion on the ground that the limitations period had expired. Mr.

Cesspooch wants to appeal; to do so, he requests a certificate of

appealability and initial consideration en banc. We deny the request for a

certificate, dismiss the appeal, and deny the request for initial

consideration en banc as moot because absent the grant of a certificate we

do not have jurisdiction over the merits of this appeal.

      Mr. Cesspooch committed the offense in 1993; at that time, the

United States Sentencing Guidelines were considered mandatory. See, e.g.,

Burns v. United States, 501 U.S. 129, 133 (1991), abrogated on other
grounds, Dillon v. United States, 560 U.S. 817, 820-21 (2010). These

guidelines treated an offense as a crime of violence if the offense created

“a serious potential risk of physical injury to another.” USSG §

4B1.2(a)(1)(ii) (1993). 1 (This provision is commonly known as the

“residual clause.”)

     The guidelines are now considered advisory rather than mandatory.

See United States v. Booker, 543 U.S. 220, 237–39 (2005). After they

became advisory, the Supreme Court rejected a vagueness challenge to the

guidelines’ residual clause. Beckles v. United States, 137 S. Ct. 886, 890,

892, 894–95 (2017). But the Supreme Court has not squarely addressed a

vagueness challenge to the guidelines when they were considered

mandatory. See id. at 903 n.4 (Sotomayor, J., concurring).

     Mr. Cesspooch contends that given the mandatory nature of the

guidelines in 1993, their residual clause should be subject to a vagueness

challenge. For this contention, Mr. Cesspooch likens the guidelines’

residual clause to an identical statutory clause in the Armed Career

Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)), which was struck down in

Johnson v. United States as unconstitutionally vague. 135 S. Ct. 2551,

2563 (2015).




1
     The sentencing court used the 1993 version of the guidelines.

                                      2
      To raise this contention on appeal, Mr. Cesspooch needs a certificate

of appealability. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). This

certificate is available only if Mr. Cesspooch shows that reasonable jurists

could debate the correctness of the district court’s ruling. Slack v.

McDaniel, 529 U.S. 473, 483–84 (2000). We conclude that Mr. Cesspooch

has not made this showing.

      A motion to vacate the sentence is ordinarily due one year from when

the judgment became final. 28 U.S.C. § 2255(f)(1). An exception exists

when the defendant relies on a new rule of constitutional law that has been

deemed retroactive to cases on collateral review. 28 U.S.C. 2255(f)(3). Mr.

Cesspooch invokes this exception here based on Johnson. Though Johnson

did not address the sentencing guidelines, our later opinion in United

States v. Greer did, holding that Johnson had not set out a new

constitutional rule applicable to the guidelines when they were considered

mandatory. 881 F.3d 1241, 1247–49 (10th Cir.), cert denied, 139 S. Ct. 374

(2018).

      The defendant argues that Greer was abrogated by Sessions v.

Dimaya. In Dimaya, the Supreme Court applied Johnson to the definition

of a “crime of violence” in 18 U.S.C. § 16(b). Sessions v. Dimaya, 138 S.

Ct. 1204, 1213–16 (2018). But after the Supreme Court decided Sessions v.

Dimaya, we reiterated in United States v. Pullen that Johnson had not


                                       3
created a new rule of constitutional law applicable to the mandatory

guidelines. United States v. Pullen, 913 F.3d 1270, 1284 n.17 (10th Cir.

2019), petition for cert. filed (U.S. July 17, 2019) (No. 19-5219). So

Dimaya does not allow Mr. Cesspooch to invoke § 2255(f)(3) based on

Johnson.

      Given our decisions in Greer and Pullen, we start the one-year period

of limitations from the date on which the conviction became final, not from

the date on which Johnson was decided. Applying this limitations period,

any reasonable jurist would conclude that Mr. Cesspooch’s motion to

vacate was untimely.

      Mr. Cesspooch’s sentence became final in 1998. United States v.

Cesspooch, 145 F.3d 1346 (1998) (unpublished). He then had one year to

move to vacate his sentence; but he waited nearly seventeen years, missing

the limitations period by about sixteen years. Because Mr. Cesspooch’s

motion was indisputably untimely, we (1) decline to issue a certificate of

appealability, (2) dismiss the appeal, and (3) deny the request for initial

consideration en banc as moot because absent the grant of a certificate we

do not have jurisdiction over the merits of this appeal.



                                       Entered for the Court


                                       Per Curiam

                                      4
United States v. Cesspooch, No. 17-4160, Bacharach, J., dissenting.

      I agree with the majority that Mr. Cesspooch’s claim fails under

Greer and Pullen. But I believe that Mr. Cesspooch has satisfied the low

threshold for a certificate of appealability.

      As the majority explains, the issue for a certificate is whether

“reasonable jurists could debate the correctness of the district court’s

ruling.” Maj. Order at 3 (citing Slack v. McDaniel, 529 U.S. 483–84

(2000)). In my view, reasonable jurists could consider the underlying issue

debatable if presented to the en banc court. 1 See United States v. Crooks,

769 F. App’x 569, 571-72 (10th Cir. 2019) (unpublished) (granting a

certificate of appealability on the same issue); 2 see also Jordan v. Fisher,

135 S. Ct. 2647, 2651 (2015) (Sotomayor, J., dissenting from the denial of

cert.) (arguing that the Fifth Circuit should have granted a certificate of

appealability, though the claim was foreclosed by a Fifth Circuit



1
       Mr. Cesspooch has requested an initial en banc, which we can
consider only upon the issuance of a certificate of appealability. Even if
this request is denied, however, Mr. Cesspooch should at least have an
opportunity to seek rehearing en banc, where he could urge reconsideration
of the holding in Greer or Pullen. As an en banc court, we might or might
not decide to revisit these issues. But Mr. Cesspooch cannot even ask us to
convene as an en banc court in the absence of a certificate of appealability.
Thus, denial of a certificate effectively prevents Mr. Cesspooch from
asking the en banc court to revisit the holding in Greer or Pullen.
2
      We also granted a certificate of appealability on this issue in United
States v. Ford, No. 17-1122, slip op. at *3 (10th Cir. Aug. 8, 2019).
precedent, because judges elsewhere had found the same claim reasonably

debatable). 3 I would thus grant a certificate of appealability 4 and affirm the

dismissal of Mr. Cesspooch’s motion to vacate his sentence.




3
      I do not suggest that we should grant a certificate of appealability
based solely on the fact that judges in our court have granted certificates
on the same issue. See Griffin v. Sec’y, 787 F.3d 1086 (11th Cir. 2015). “If
the fact that one or more judges had granted a [certificate of appealability]
on an issue, or even concluded that the issue had merit, required all other
judges to grant a [certificate of appealability] on the issue, the standard
would be transformed from objective to subjective. It is not a subjective
standard.” Id. at 1095. I simply note that

           some judges in our court have regarded the same issue
            reasonably debatable even after Greer and Pullen,

           the en banc court need not be constrained by Greer or Pullen,

           Mr. Cesspooch has already asked for en banc consideration and,
            if we were to grant a certificate, he could ask again after
            issuance of the panel’s order.
4
      Mr. Cesspooch’s motion is his fifth motion to vacate his sentence. If
he were to obtain a certificate of appealability, we could reach the merits
only if we were to grant leave to pursue a second or successive motion. See
28 U.S.C. § 2255(h)(2). The majority’s dismissal of the appeal obviates
our need to consider the possibility of leave to file a successive motion to
vacate the sentence.

                                       2
