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

                                      TENTH CIRCUIT                            February 21, 2018

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                              No. 17-6190
v.                                                  (D.C. Nos. 5:16-CV-00428-D and
                                                          5:95-CR-00158-D-1)
JOHN R. TAYLOR,                                               (W.D. Okla.)

              Defendant - Appellant.




                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY


Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.


       In September 1997, John R. Taylor was convicted by a jury of various drug

offenses. His criminal history included California convictions for kidnapping and

second-degree robbery. The district judge concluded these convictions constituted

“crime[s] of violence” under the career-offender sentencing guideline. See USSG

§§ 4B1.1, 4B1.2(1).1 That guideline increases a sentence if, among other things, “the

defendant has at least two prior felony convictions of either a crime of violence or a



       1
         Taylor was sentenced under the 1995 version of the sentencing guidelines; all
references to the guidelines in this order refer to the 1995 version of the guidelines unless
stated otherwise.
controlled substance offense.”2 USSG § 4B1.1. A “crime of violence” is any federal or

state offense “punishable by imprisonment for a term exceeding one year” that (1) “has as

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

of another” (the force or elements clause), (2) “is burglary of a dwelling, arson, or

extortion, [or] involves use of explosives” (the enumerated-offense clause), or (3)

“otherwise involves conduct that presents a serious potential risk of physical injury to

another” (the residual clause). USSG § 4B1.2(1). The commentary to § 4B1.2 defines

“crime of violence” to include “murder, manslaughter, kidnapping, aggravated assault,

forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and

burglary of a dwelling.” USSG § 4B1.2, comment. (n.2).

       The career-offender enhancement resulted in a guideline range of 360 months to

life imprisonment; the judge sentenced Taylor to 360 months. Had the career-offender

guideline not applied, the applicable guideline range would have been 262-327 months in

prison. At the time of Taylor’s sentencing, the guidelines were mandatory.3

       We affirmed on direct appeal. See United States v. Taylor, 183 F.3d 1199 (10th

Cir.), cert. denied, 528 U.S. 904 (1999). Since then, Taylor has made various attempts,

all unsuccessful, to overturn his conviction and sentence, including filing a first § 2255

motion and a motion for sentence reduction under 18 U.S.C. § 3582(c)(2). He also filed

       2
         The career-offender guideline also requires: (1) the defendant be at least 18 years
of age at the time he committed the offense of conviction and (2) the offense of
conviction be either a felony crime of violence or controlled substance offense. USSG
§ 4B1.1.
       3
        The sentencing guidelines were rendered advisory in 2005, when the Supreme
Court decided United States v. Booker, 543 U.S. 220 (2005).

                                            -2-
several second or successive § 2255 motions; in each case we denied authorization under

28 U.S.C. § 2255(h).

       On June 26, 2015, the United States Supreme Court decided Johnson v. United

States, --- U.S. ---, 135 S. Ct. 2551 (2015). It held the Armed Career Criminal Act’s

(ACCA) definition of “violent felony” to include any felony that “involves conduct that

presents a serious potential risk of physical injury to another” (also known as the residual

clause) is unconstitutionally vague. Id. at 2557, 2563. On April 18, 2016, it made

Johnson’s holding retroactive to cases on collateral review. Welch v. United States, ---

U.S. ---, 136 S. Ct. 1257, 1265 (2016).

       Relying on Johnson, Taylor requested and obtained this Court’s authorization to

file a second or successive § 2255 motion. See 28 U.S.C. § 2255(h)(2). His second

§ 2255 motion contends the prior robbery conviction qualified as a “crime of violence”

only under § 4B1.2(1)(ii)’s residual clause. Because that clause, like its identically

worded ACCA counterpart, is unconstitutionally vague, he claims he was entitled to be

resentenced without the career-offender guideline enhancement.4

       During the pendency of the § 2255 proceedings, the Supreme Court decided

Beckles v. United States, --- U.S. ---, 137 S. Ct. 886 (2017). It held the advisory

sentencing guidelines “are not subject to a vagueness challenge under the Due Process

Clause” because they “merely guide the exercise of a court’s discretion in choosing an



       4
        Taylor appears pro se. As a result, we have liberally construed his pleadings,
stopping short, however, of serving as his advocate. See United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009).

                                            -3-
appropriate sentence within the statutory range.” Id. at 892. As a result, “[t]he residual

clause in [the career-offender guideline] . . . is not void for vagueness.” Id.

       Taylor argued Beckles did not foreclose relief because its holding was limited to

the advisory guidelines and left open the question whether defendants, like himself,

sentenced under the mandatory guidelines “may mount vagueness attacks on their

sentences.” Id. at 903 n.4 (Sotomayor, J., concurring in judgment). He claimed that

because the mandatory guidelines fixed the permissible range of his sentence, they, like

the ACCA, are subject to vagueness challenges.

       The district judge concluded he need not decide whether Johnson applied to the

mandatory guidelines because Taylor’s § 2255 motion did not “contain . . . a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable,” one of the requirements for filing a second or

successive § 2255 motion. See 28 U.S.C. § 2255(h)(2) (emphasis added). He explained:

The only Supreme Court case that might satisfy this requirement for a career-offender

guideline claim based on Johnson would be Welch, but Welch only addressed the

retroactivity of Johnson. The Supreme Court concluded Johnson was retroactive to cases

on collateral review because it was a substantive decision—it affected the reach of the

ACCA rather than the judicial procedures by which it is applied. The same reasoning,

the judge said, would not apply to a Supreme Court decision invalidating the residual

clause of the mandatory career-offender guideline. The mandatory guidelines, he said,

are not the equivalent of a criminal statute and cannot require a particular punishment.

Rather, they provide a punishment or range of punishments a sentencing court may

                                             -4-
impose, but only as one factor to be considered under 18 U.S.C. § 3553(a) in fashioning

an appropriate sentence for a particular defendant. “Thus, Welch would not necessarily

mandate that a Supreme Court decision invalidating the residual clause of the career

offender guideline would be given retroactive effect to cases on collateral review.” (R. at

202.)

        In so concluding, the judge acknowledged we had granted Taylor authorization to

file a second or successive § 2255 motion. Nevertheless, he concluded we had made only

a preliminary assessment of whether the motion met the gatekeeping requirements of

§ 2255(h)(2) and he must definitely decide the issue. Indeed, 28 U.S.C. § 2244(b)(4)

requires dismissal of any claim presented in a second § 2255 motion that fails to meet the

requirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4) (“A district court must dismiss

any claim presented in a second or successive application that the court of appeals has

authorized to be filed unless the applicant shows that the claim satisfies the requirements

of this section.”).

        The judge denied a certificate of appealability (COA); Taylor renews his request

here. A COA is a jurisdictional prerequisite to our review of the denial of a § 2255

motion. See 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

We will issue a COA “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must show that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

                                           -5-
(quotation marks omitted).

       We agree with the district judge; Taylor is not entitled to relief. But we do so for

different reasons.5

       At the time Taylor was sentenced, the commentary to § 4B1.2 expressly

designated his prior convictions—robbery and kidnapping—as “crime[s] of violence.”

See USSG § 4B1.2, comment. (n.2) (“Crime of violence” includes murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion,

extortionate extension of credit, and burglary of a dwelling.” (emphasis added)).

“[B]ecause the enumeration of robbery [and kidnapping] in the commentary to the career-

offender guideline sufficiently narrows the application of the residual clause to [Taylor’s]

conduct,” he “cannot mount a vagueness challenge to his enhanced sentence.” United

States v. Miller, 868 F.3d 1182, 1187 (10th Cir. 2017); see also Beckles, 137 S. Ct. at

       5
         The judge’s decision essentially concludes 28 U.S.C. § 2244(b)(4) applies to
second or successive § 2255 motions we have authorized under § 2255(h). Supplemental
briefing was ordered on that very issue in United States v. Murphy (Appeal No. 17-8010).
That case is set for oral argument in March 2018. Because that issue is not pertinent to
our resolution of this case, we do not discuss it.
        There is another problem. It appears Taylor’s § 2255 motion is untimely. See
United State v. Greer, --- F.3d ---, No. 16-1282, 2018 WL 721675 (10th Cir. Feb. 6,
2018) (concluding Greer’s § 2255 motion alleging Johnson applies to the residual clause
of the mandatory sentencing guidelines was untimely because it was not filed within one
year of the date “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”; Greer had not asserted a right
recognized by the Supreme Court because the Court had not yet decided whether the
residual clause of the mandatory guidelines was unconstitutionally vague (quotation
marks omitted)). However, because the government has not raised timeliness as a
defense, we do not consider it here. See United States v. Miller, 868 F.3d 1182, 1185-86
(10th Cir. 2017) (declining to consider government’s timeliness argument raised for the
first time in a Fed. R. App. P. 28(j) letter).

                                            -6-
897-98 (Ginsburg, J., concurring) (because the commentary to the career-offender

guideline expressly designated his offense of conviction as a “crime of violence,” his

conduct was “clearly proscribed” and Beckles cannot claim the guideline was vague as

applied to him or as applied to the conduct of others) (quotation marks omitted)); 137 S.

Ct. at 898 (Sotomayor, J., concurring) (“Johnson affords Beckles no relief, because the

commentary under which he was sentenced was not unconstitutionally vague.”).

       Taylor told the district judge that the commentary is not authoritative because it is

inconsistent with § 4B1.2 itself and violates the Constitution.6 See Stinson v. United

States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manual that interprets

or explains a guideline is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”). That is

so, he said, because the offenses enumerated in the commentary are grounded in the

residual clause of § 4B1.2 and that clause is now invalid after Johnson.

       We rejected the same argument in Miller:

       Miller confuses the normal order of operations in analyzing vagueness challenges.
       As Justice Ginsburg explained in Beckles, the Supreme Court has routinely
       rejected, in a variety of contexts, vagueness claims where a clarifying construction
       rendered an otherwise enigmatic provision clear as applied to the challenger. This
       is so because a narrowing construction of an otherwise vague statute provides a
       person of ordinary intelligence fair notice of what is prohibited. And in the
       context of sentencing, a clarifying construction provides guidance to judges, thus
       preventing arbitrary or uneven enforcement.

       Assuming the residual clause in [the career-offender guideline] would otherwise

       6
        The judge did not reach this argument because he denied relief on other grounds.
He did, however, rely on our decision in Miller in denying Taylor leave to proceed on
appeal without prepayment of fees.

                                             -7-
       be unconstitutionally vague, the enumeration of robbery in [the commentary]
       renders the clause’s application to Miller sufficiently clear. Because Miller’s
       conduct was clearly proscribed, he cannot complain he was denied fair notice of
       the possibility of enhanced punishment. And for similar reasons, there was no risk
       of arbitrary enforcement by judges. On its own, the residual clause might leave
       grave uncertainty about how to estimate the risk posed by a crime. But because
       the commentary clarifies that robbery poses a serious enough risk of physical
       injury to others, none of the judicial speculation and guesswork that would
       accompany the ordinary case is present here.

       Since the enumeration of robbery in the commentary does not conflict with the
       text of [the guideline], we reject Miller’s argument that the commentary is not
       authoritative here.

868 F.3d at 1188-89 (citations and quotation marks omitted).

       Because Taylor’s conduct was clearly proscribed by the authoritative commentary

to the guideline, his sentence does not violate due process and his § 2255 motion fails on

the merits. Id. at 1183, 1189. As a result, the result reached by the district judge—denial

of § 2255 relief—is not reasonably debatable. We DENY a COA and DISMISS this

matter.

       The judge denied Taylor’s motion to proceed without prepayment of fees (in

forma pauperis or ifp) on appeal because the appeal was not taken in good faith. See 28

U.S.C. § 1915(a)(3). Taylor renews his ifp request with this Court. Because we have

reached the merits of his COA application, his renewed request to proceed on appeal

without prepayment of fees is DENIED AS MOOT. The relevant statute does not

permit litigants to avoid payment of fees; only prepayment of fees is excused. See 28

U.S.C. § 1915(a) (allowing courts to authorize the commencement of a civil or criminal

suit or appeal “without prepayment of fees or security therefor”) (emphasis added). All




                                           -8-
filing and docketing fees ($505.00) are due and payable to the Clerk of the District Court.




                                                 Entered by the Court:



                                                 Terrence L. O’Brien
                                                 United States Circuit Judge




                                           -9-
