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

                            FOR THE TENTH CIRCUIT                              July 3, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 17-8070
                                                  (D.C. Nos. 1:16-CV-00100-NDF &
 JASON THOMAS ENCINIAS,                                2:01-CR-00099-WFD-2)
                                                              (D. Wyo.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

      Jason Encinias appeals the district court’s dismissal of his 28 U.S.C. § 2255

motion as untimely. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      Encinias was sentenced to 360 months’ imprisonment as a career offender

under the Guidelines’ residual clause at a time when the Guidelines were mandatory.

More than ten years after his conviction became final, he brought a § 2255 motion



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
challenging his enhanced sentence under Johnson v. United States, 135 S. Ct. 2551

(2015). In Johnson, the Supreme Court held that the Armed Career Criminal Act’s

residual clause is unconstitutionally vague. Id. at 2557, 2563. Encinias argued that

because he received an increased sentenced under the mandatory Guidelines’

similarly worded residual clause, his sentence is unconstitutional under Johnson.

      The district court rejected Encinias’ argument that his motion was timely

under § 2255(f)(3), which provides that a one-year limitations period runs from “the

date on which the right asserted was initially recognized by the Supreme Court and

made retroactively applicable to cases on collateral review.” It determined Johnson

did not create a newly recognized right made retroactively applicable to cases

brought on collateral review relating to the constitutional vagueness of the mandatory

Guidelines. However, it granted a Certificate of Appealability. Encinias timely

appealed.

                                           II

      We are bound by our decision in United States v. Greer, 881 F.3d 1241, 1243

(10th Cir. 2018), cert. denied, 139 S. Ct. 374 (U.S. Oct. 15, 2018). In that case,

Greer brought an identical claim: he sought to rely on Johnson to challenge his

career-offender sentence imposed under the mandatory Guidelines’ residual clause.

We explained that “[t]he Court did not consider in Johnson, and has still not decided,

whether the mandatory Guidelines can be challenged for vagueness in the first

instance, let alone whether such a challenge would prevail.” Greer, 881 F.3d at 1248.

Because we concluded that Johnson did not recognize a new right applicable to a

                                           2
sentence imposed under the mandatory Guidelines, we determined the movant’s

§ 2255 motion was untimely. Id. at 1248-49.

      In his opening brief, Encinias acknowledges that his appeal is foreclosed by

Greer, and indicates he is filing his brief “solely for the purpose of preserving for

en banc and/or Supreme Court review his argument that Greer was wrongly

decided.”1 This concession that Greer forecloses his appeal provides a sufficient

basis to affirm the district court’s decision. We also note our recent decision in

United States v. Pullen, 913 F.3d 1270 (10th Cir. 2019), in which this court reiterated

that “Johnson did not create a new rule of constitutional law applicable to the

mandatory Guidelines.” Id. at 1284.

                                           III

      We AFFIRM the district court’s dismissal of Encinias’ § 2255 motion as

untimely.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




      1
        The Supreme Court denied the petition for a writ of certiorari filed in Greer
after Encinias filed his opening brief.
                                            3
