                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS March 2, 2015

                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 14-5117
                                              (D.C. Nos. 4:14-CV-00346-CVE-
 v.
                                               TLW, 4:10-CR-00087-CVE-1)
                                                        (N.D. Okla.)
 GARRY DON SCOTT, JR.,

          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.


      Garry Scott pleaded guilty to being a felon in possession of a firearm and

failing to appear at a court date. At sentencing, the district court reviewed Mr.

Scott’s criminal record and found he had at least three prior violent felony

convictions, so it applied a sentencing enhancement under the Armed Career

Criminal Act (ACCA) and ordered him to serve 262 months in federal prison. See

18 U.S.C. § 924(e). Mr. Scott now seeks to correct his sentence under 28 U.S.C.

§ 2255, arguing the district court erred in applying the ACCA.




      *
         This order is not binding precedent except under the doctrines of law of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.
      But this is not Mr. Scott’s first § 2255 petition, and we cannot authorize a

second or successive collateral attack unless he (1) presents newly discovered

evidence suggesting his innocence or (2) identifies a new rule of constitutional

law retroactively applicable to his case. 28 U.S.C. § 2255(h). Invoking the

second exception, Mr. Scott argues he should be resentenced in light of the

Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013).

But Descamps did not announce a new rule of constitutional law — it merely

clarified, as a purely statutory matter, when prior convictions qualify as violent

felonies under the ACCA. See 133 S. Ct. at 2281-82; see also Ezell v. United

States, No. 14-71696, 2015 WL 294306, at *4 (9th Cir. Jan. 23, 2015) (holding

that Descamps is not a “constitutional” decision for purposes of § 2255(h)); In re

Jackson, No. 14-30805, 2015 WL 127370, at *3 (5th Cir. Jan. 8, 2015) (same).

Because § 2255(h) provides no remedy for a second or successive petition “based

on intervening judicial interpretations of statutes” like the ACCA, we see no path

forward for Mr. Scott’s second collateral attack. Abernathy v. Wandes, 713 F.3d

538, 547 (10th Cir. 2013).

      Mr. Scott’s application for a certificate of appealability is denied and this

appeal is dismissed.

                                              ENTERED FOR THE COURT

                                              Neil M. Gorsuch
                                              Circuit Judge


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