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

                             FOR THE TENTH CIRCUIT                         January 30, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-5145
                                               (D.C. Nos. 4:16-CV-00523-CVE-PJC and
TIMOTHY JOHN VAUGHN,                                   4:00-CR-00126-CVE-6)
                                                             (N.D. Okla.)
      Defendant - Appellant.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

       Defendant Timothy Vaughn seeks a certificate of appealability (COA) to appeal

the denial of his motion for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B)

(requiring a COA to appeal a denial of relief under § 2255). He contends that his life

sentence must be set aside because the applicable provision of the Sentencing Guidelines

is unconstitutionally vague. But that provision was irrelevant to his sentence. His life

sentence was not imposed under the guidelines but under a statutory provision that has

not been challenged as vague. We deny a COA because no reasonable jurist could have

ruled in his favor.

       Defendant was indicted on a charge of conspiracy to distribute and to possess with

intent to distribute cocaine, crack cocaine, and marijuana, in violation of 21 U.S.C. § 846.

The government filed an information setting forth his two prior felony drug convictions
and stating that if he were convicted on the charge against him, it would seek an

enhancement of his sentence under 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(ii) and (vii),

which provide for a mandatory sentence of life imprisonment if a defendant convicted on

that charge has two prior convictions of felony drug offenses.

       The presentence investigation report prepared after Defendant’s conviction in this

case noted that Defendant had two prior convictions that qualified as controlled-

substance offenses and one that qualified as a crime of violence under USSG § 4B1.2.

As a result, he was treated as a career offender under USSG § 4B1.1 and his guidelines

sentencing range was 360 months to life imprisonment.

       Defendant’s complaint in this court is that some of the language in § 4B1.2

defining crime of violence is virtually identical to language in the Armed Career Criminal

Act, 18 U.S.C. § 924(e), held to be unconstitutionally vague in Johnson v. United States,

135 S. Ct. 2551 (2015). Indeed, we have held that this language in § 4B1.2 is also

unconstitutionally vague. See United States v. Madrid, 805 F.3d 1204, 1210–11 (10th

Cir. 2015).

       But Defendant’s mandatory life sentence was not affected by § 4B1.2. It was the

statutory mandatory minimum for offenders with two prior felony drug offenses that

caused him to receive a sentence of life imprisonment. Because Defendant has not

“made a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), he is not entitled to relief.




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We DENY a COA and DISMISS the appeal.

                               Entered for the Court


                               Harris L Hartz
                               Circuit Judge




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