                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 May 31, 2017
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                      No. 17-2000
                                             (D.C. Nos. 1:16-CV-00732-WJ-GBW
 JULIO MENDOZA-ACOSTA,                             & 2:10-CR-02848-WJ-1)
                                                          (D. N.M.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, HARTZ and BACHARACH, Circuit Judges.


      Julio Mendoza-Acosta, proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal with prejudice of his

28 U.S.C. § 2255 motion. We deny his request and dismiss this matter.

                                         I

      On December 9, 2010, Mendoza-Acosta plead guilty to possession of 100

kilograms of marijuana with intent to distribute in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B) and to reentry of a removed alien in violation of 8

U.S.C. §§ 1326(a) and (b). At sentencing, the district court classified Mendoza-


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Acosta as a career offender based on his current and two prior “controlled

substance offense[s]” under United States Sentencing Guidelines § 4B1.1(a)

(2011) and thus enhanced his sentence to 210 months of imprisonment plus 20

years of supervised release. See Mot. to Vacate at 5, ECF No. 44; Order at 5,

ECF No. 45; see also Mot. for Order at 2, ECF No. 41. 1 Mendoza-Acosta did not

file a direct appeal.

      On June 27, 2016, Mendoza-Acosta filed this, his first, 2 28 U.S.C. § 2255

motion, arguing that Johnson v. United States, __U.S.__, 135 S. Ct. 2551 (2015)

and United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) rendered his

      1
        These are the only record documents indicating that Mendoza-Acosta’s
sentencing enhancement came from the Guidelines as opposed to the Armed
Career Criminal Act (ACCA). The Sentencing Minute Sheet states that he was
“covered under the Armed Career Criminal Act.” Sentencing Min. Sheet, ECF
No. 29. But his sentence enhancement could not have been based on the ACCA
because his current conviction was not for being a felon in possession of a
firearm. See 18 U.S.C. § 924(e).
      2
         On June 16, 2014, Mendoza-Acosta submitted a letter to the district court
stating that he filed a § 2255 motion in March, 2013 but never received any
response either granting or denying relief. Letter, ECF No. 34. His Combined
Opening Brief and Application for a COA also indicates that he previously sought
§ 2255 relief. Aplt. Br. at 1. No prior § 2255 motion appears in the record,
however. The district court docket shows only one motion filed in March, 2013:
a Motion to Compel Defense Counsel to Release All Records and Files, by a
Prisoner in Federal Custody. Mot., ECF No. 31. Mendoza-Acosta, also then pro
se, successfully moved the district court to order his former federal defender to
release files related to his case “pertinent to the Movant proceeding with post-
sentencing remedies . . . .” Id. at 1. He did later move to reduce his sentence
pursuant to 18 U.S.C. § 3582(c)(2) based on a change to U.S. Sentencing
Guidelines § 1B1.10. Mot. at 1, ECF No. 15. Thorough record searches for other
cases under his name and variants of it showed no previous § 2255 motion. We
thus treat the present motion as his first.

                                        2
sentence enhancement unconstitutional. The district court denied the motion and

denied a COA because Mendoza-Acosta’s enhancement was not based on either

the Armed Career Criminal Act (ACCA) residual clause invalidated in Johnson

(18 U.S.C. §924(e)(2)(B)), or the textually identical residual clause in the

Sentencing Guidelines (§ 4B1.2(a)(2)), which we had also held to be

unconstitutionally vague. Madrid, 805 F.3d at 1210-11, overruled on this point

by Beckles v. United States, __U.S.__, 137 S. Ct. 886, 890 (2017). Mendoza-

Acosta now seeks a COA from this court. We have jurisdiction pursuant to 28

U.S.C. § 2253(a). See also 28 U.S.C. § 1291.

                                          II

      Mendoza-Acosta’s Combined Opening Brief and COA Application has only

one and a half sentences of argument: “In United States v. Johnson, the Supreme

Court invalidated the use of the residual clause to enhance a Federal sentence

ruling that the residual caluse [sic] is unconstitutionally vague. There is no

distinguishable difference.” Aplt. Combined Opening Brief and Applic. for COA

at 3. If Mendoza-Acosta is intending to assert that there is no distinguishable

difference between the ACCA’s residual clause invalid under Johnson and the

Guideline under which he was sentenced, even that argument would not provide a

basis for our granting a COA. Even if we assume Mendoza-Acosta intended to

argue that Johnson renders his sentence enhancement under Sentencing Guideline

§ 4B1.1(a) unconstitutionally vague, we would deny relief because these advisory

                                          3
Guidelines “are not subject to vagueness challenges under the Due Process Clause

. . . .” Beckles, 137 S. Ct. at 890. Mendoza-Acosta could not show that jurists of

reason would disagree with this reading of current precedent.

                                        III

      We DENY his request for a COA and dismiss the matter. We GRANT his

motion to proceed in forma pauperis.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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