                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALSJanuary 19, 2018
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 17-6103
v.
                                              (D.C. Nos. 5:16-CV-00476-R and
                                                    5:04-CR-00173-R-1)
KHAMPHAY SOUVANNARATH,
                                                        (W.D. Okla.)
             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MATHESON, KELLY, and MURPHY, Circuit Judges.


      Khamphay Souvannarath seeks a certificate of appealability (“COA”) to

appeal the denial of his 28 U.S.C. § 2255 motion. His appointed counsel moves

for leave to withdraw in a brief filed pursuant to Anders v. California, 386 U.S.

738 (1967). We deny Souvannarath’s request for a COA, grant counsel’s motion

to withdraw, and dismiss the appeal.

      Souvannarath was convicted of possession with intent to distribute

methamphetamine and being a felon in possession of a firearm. The district court

determined Souvannarath was a career offender under the United States

Sentencing Guidelines and, thus, enhanced his sentence pursuant to USSG

§ 4B1.1. Souvannarath’s sentence was affirmed by this court on direct appeal.
United States v. Souvannarath, 158 F. App’x 984, 987 (10th Cir. 2005)

(unpublished disposition).

      Souvannarath filed the instant § 2255 motion on May 6, 2016. Relying on

Johnson v. United States, he argued his advisory guidelines range was unlawfully

enhanced through application of the residual clause in USSG § 4B1.2(a). See 135

S. Ct. 2551, 2563 (2015) (holding the imposition of an increased sentence under

the residual clause of the Armed Career Criminal Act violates a defendant’s due

process rights because the clause is unconstitutionally vague). While

Souvannarath’s § 2255 motion was pending, the Supreme Court decided Beckles

v. United States, 137 S. Ct. 886, 892 (2017), holding the Sentencing Guidelines

are not subject to vagueness challenges under the Fifth Amendment’s due process

clause. Based on Beckles, the district court denied Souvannarath’s motion.

      A federal prisoner may not appeal the denial of habeas relief under § 2255

unless he first obtains a COA. § 2253(c)(1)(B). This court will not issue a COA

unless “the applicant has made a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). Under this standard, Souvannarath 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) (quotations omitted).




                                         -2-
      Souvannarath’s counsel has submitted an Anders brief. Under Anders, if an

attorney concludes after conscientiously examining a case that any appeal would

be frivolous, he may so advise the court and request permission to withdraw. 386

U.S. at 744. In conjunction with such a request, counsel must submit a brief

highlighting any potentially appealable issues and provide a copy to the

defendant. Id. The defendant may then submit a pro se brief. Id. If, upon

careful examination of the record, this court determines the appeal is frivolous, it

may grant the request to withdraw and dismiss the appeal. Id.

      We agree with counsel that any appeal of the district court’s order denying

habeas relief would be frivolous. A Johnson claim challenging an advisory

guidelines sentence 1 imposed under the residual clause of USSG § 4B1.2(a) is

squarely foreclosed by Beckles. 137 S. Ct. at 892 (“[T]he Guidelines are not

subject to a vagueness challenge under the Due Process Clause. The residual

clause in § 4B1.2(a)(2) therefore is not void for vagueness.”). Neither

Souvannarath’s pro se brief nor our independent review of the record has

uncovered any other potentially meritorious issues.




      1
       At the time Souvannarath was sentenced, the Sentencing Guidelines were
no longer considered mandatory. United States v. Booker, 543 U.S. 220, 245
(2005) (holding the Sentencing Guidelines are advisory only). The district court
affirmatively acknowledged the advisory nature of the Guidelines when it
sentenced Souvannarath.

                                         -3-
      Accordingly, we deny Souvannarath’s request for a COA, grant counsel’s

motion to withdraw, and dismiss the appeal.

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




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