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

                             FOR THE TENTH CIRCUIT                           April 13, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-1135
                                                (D.C. Nos. 1:16-CV-01505-WYD and
JASON EDWARD RIFORGIATE, a/k/a                        1:08-CR-00425-WYD-1)
Robert Edward Riforgiate,                                     (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

      Defendant Jason Riforgiate pleaded guilty in 2009 to four counts of armed bank

robbery, see 18 U.S.C. § 2113, and one count of brandishing a firearm during a crime of

violence, see 18 U.S.C. § 924(c)(1)(A)(ii). The armed-bank-robbery convictions served

as the predicate crimes of violence for the § 924(c) conviction. Defendant was sentenced

to 97-month concurrent terms on the robbery counts and a consecutive term of 84 months

on the § 924(c) count. After the Supreme Court in Johnson v. United States, 135 S. Ct.


*
  After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
2551 (2015), held that the residual clause in the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, Defendant filed a motion

under 28 U.S.C. § 2255 seeking to set aside his § 924(c) conviction on the ground that

§ 924(c)(3)(B) is likewise too vague. The district court held that the motion was

untimely and lacked merit. Defendant has been granted a certificate of appealability to

enable him to appeal that ruling. See 28 U.S.C. § 2253(c)(1)(B). We now affirm the

district court on the ground of untimeliness.

       Ordinarily, a § 2255 motion must be filed within a year of when the judgment on

the criminal conviction became final. See 28 U.S.C. § 2255(f)(1). That deadline has long

passed. Defendant, however, relies on § 2255(f)(3), which permits a motion to be filed

within a year of “the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” In Welch v. United States, 136

S. Ct. 1257 (2016), the Supreme Court held that Johnson is retroactively applicable.

Defendant argues that Welch makes his § 2255 motion timely.

       Defendant’s argument fails in this circuit. In United States v. Greer, 881 F.3d

1241 (10th Cir. 2018), we held that a defendant relying on Johnson can proceed under

§ 2255(f)(3) only if the defendant is challenging the residual clause of the ACCA on

vagueness grounds. See id. at 1244–49. Since Defendant was not sentenced under the

ACCA, he cannot invoke § 2255(f)(3) and his motion is untimely.




                                                2
We AFFIRM the district court’s dismissal of Defendant’s § 2255 motion.


                                   Entered for the Court


                                   Harris L Hartz
                                   Circuit Judge




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