                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS November 9, 2016
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 16-8091
 v.                                         (D.C. Nos. 2:16-CV-00126-ABJ and
                                                  2:11-CR-00227-ABJ-1)
 MYRON ULAND SMITH,                                      (D. Wyo.)

          Defendant - Appellant.


                                      ORDER *


Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.


      Myron Smith filed a § 2255 motion to vacate his sentence, arguing that a

provision of the sentencing guidelines applied to his case has been rendered

invalid by Johnson v. United States, 135 S. Ct. 2551 (2015). His right to relief

depends on the answer to certain legal questions the Supreme Court will soon

address in Beckles v. United States, No. 15-8544. The Court has scheduled oral

argument in Beckles for November 28, 2016, and will likely release a decision by

June 2017. Rather than decide the legal issues on its own, the district court

stayed the § 2255 proceedings to hear what Beckles will say. Mr. Smith appeals


      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
from that stay order because, he argues, the delay will cause him irreparable

harm. Mr. Smith tells us he is scheduled to be released from prison, even without

any habeas relief, on September 27, 2017. And if his claim is meritorious, Mr.

Smith explains, he has already served more than the high end of the correct

guidelines range. So he wants the district court to rule on his § 2255 motion as

soon as possible.

      To review the stay order, this court must have appellate jurisdiction. Mr.

Smith argues that we do either because the stay is a final order under 28 U.S.C.

§ 1291 or because it is a denial of an injunction immediately appealable under 28

U.S.C. § 1292. Alternatively, if those avenues are closed, he urges us to construe

his appeal as a petition for a writ of mandamus.

      We recently faced these same questions in United States v. Miller, No. 16-

8080 (10th Cir. Nov. 2, 2016) (unpublished). There we concluded that the stay

order is not an appealable final order, slip op. at 3-4, but we agreed to issue a writ

of mandamus directing the district court to rule on the § 2255 motion without

waiting for Beckles, id. at 5-7. And a few days later another panel of this court

reached the same result in United States v. Carey, No. 16-8093 (10th Cir. Nov. 4,

2016) (unpublished). Although Miller and Carey are unpublished opinions and

thus not binding precedent, we may look to them for their persuasive value. See

Fed. R. App. P. 32.1; 10th Cir. R. 32.1. The reasoning in Miller and Carey

persuades us that Mr. Smith’s “right to issuance of the writ is clear and

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indisputable because, without it, he will effectively be denied his right to timely

resolution of his § 2255 motion.” Miller, slip op. at 7. Accordingly, we construe

Mr. Smith’s appeal as a petition for a writ of mandamus and grant it. The district

court is directed to vacate its prior order staying the case and consider Mr.

Smith’s § 2255 motion on the merits.



                                               ENTERED FOR THE COURT


                                               PER CURIAM




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