                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 7, 2017
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court




 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 16-5128
                                            (D.C. Nos. 4:16-CV-00408-CVE-PJC
                                                and 4:11-CR-00152-CVE-1)
 LEONARDO RAMOS, a/k/a Leonard
                                                        (N.D. Okla.)
 Ramos,

              Defendant - Appellant.



          ORDER DENYING CERTIFICATE OF APPEALABILITY *



Before KELLY, HOLMES, and MORITZ, Circuit Judges.



      Pro se 1 Defendant-Appellant Leonardo Ramos (“Mr. Ramos”), a federal

prisoner, seeks a certificate of appealability (“COA”) and permission to proceed

in forma pauperis, in order to challenge the district court’s denial of his motion


      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Ramos appears pro se, we afford his filings liberal
construction, but do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008).
under 28 U.S.C. § 2255. Exercising jurisdiction under 28 U.S.C. § 1291, we deny

Mr. Ramos’s request for a COA, deny his application to proceed in forma

pauperis, and dismiss this matter.

                                         I

      On December 13, 2011, Mr. Ramos pleaded guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Prior to sentencing, the U.S. Probation Office prepared a Presentence

Investigation Report, which revealed that Mr. Ramos had “at least two prior

convictions for controlled substances offenses.” R. at 51 (Op. & Order, dated

July 28, 2016). Given these prior convictions and his felon-in-possession offense,

the district court sentenced Mr. Ramos as a “career offender” under U.S.

Sentencing Guidelines § 4B1.1, and imposed an enhanced sentence of 110

months’ imprisonment. Id. at 51–52.

      On June 28, 2016, Mr. Ramos filed a motion under 28 U.S.C. § 2255,

seeking to vacate his sentence under Johnson v. United States, — U.S. —, 135 S.

Ct. 2551 (2015). 2 Finding Johnson inapplicable to Mr. Ramos’s enhanced




      2
             In addition, Mr. Ramos made passing reference to the alleged
ineffectiveness of his trial counsel. See R. at 20 (stating, without explanation,
that his “COUNSEL WAS INEFFECTIVE”). The district court made no mention
of this contention and Mr. Ramos does not pursue it on appeal. Consequently, we
deem Mr. Ramos’s ineffectiveness challenge—if raised at all—to be waived.

                                         2
sentence, the district court denied the motion. Mr. Ramos now seeks a COA to

challenge this decision on appeal. 3

                                         II

      A prisoner may not appeal the denial of relief under § 2255 without a COA.

See 28 U.S.C. § 2253(c)(1)(B); Davis v. Roberts, 425 F.3d 830, 833 (10th Cir.

2005); see also Gonzalez v. Thaler, 565 U.S. 134, 142 (2012) (citing the “‘clear’

jurisdictional language . . . in § 2253(c)(1)”). We may issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Under this standard, Mr. Ramos must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the [motion] should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack, 529 U.S. at 484 (citation

omitted).

                                        III

      In his § 2255 motion, Mr. Ramos argued that Johnson’s holding rendered

his career-offender enhancement unconstitutional, but the district court found

Johnson inapplicable. Because reasonable jurists could not debate the soundness

of the district court’s conclusion, we deny his request for a COA.



      3
             The district court further questioned, without resolving, the
timeliness of Mr. Ramos’s habeas motion. R. at 55. Because we find that Mr.
Ramos’s motion fails on the merits, we too do not reach the issue of timeliness.

                                         3
      In Johnson, the Supreme Court determined that the definition of “violent

felony” under the residual clause of the Armed Career Criminals Act (“ACCA”),

18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. See 135 S. Ct. at

2557–59. More recently, however, in Beckles v. United States, — U.S. —, — S.

Ct. —, 2017 WL 855781 (U.S. Mar. 6, 2017), the Supreme Court concluded that

the U.S. Sentencing Guidelines are not subject to a vagueness challenge under the

Due Process Clause. Id. at *5–6. More specifically, the Court held that

Johnson’s vagueness holding does not apply to the career-offender provisions of

the U.S. Sentencing Guidelines—i.e., the provisions under which the district court

sentenced Mr. Ramos. See id. at *6. In view of Beckles, 4 no reasonable jurist

could debate the district court’s decision to deny Mr. Ramos’s § 2255 motion.

Accordingly, we deny his request for a COA.




      4
             Even under the pre-Beckles regime, Mr. Ramos’s Johnson claim
would have failed. Importantly, prior to Beckles, Johnson only affected career-
offender enhancements under the ACCA based on certain violent felonies. Here,
by contrast, the district court based its career-offender designation on Mr.
Ramos’s prior controlled substances offenses—not violent felonies under the
ACCA. See R. at 55. Thus, even before the Supreme Court’s Beckles decision,
Johnson provided Mr. Ramos no basis for relief. See United States v. Johnson, —
F. App’x —, 2016 WL 7487720, at *1 (10th Cir. Dec. 30, 2016) (unpublished)
(holding Johnson to be inapplicable, because the appellant’s “career offender
designation was based on two prior convictions for drug distribution—not crimes
of violence”); United States v. Chronister, 663 F. App’x 642, 645 (10th Cir.
2016) (unpublished) (deeming Johnson inapplicable, because the appellant “was
not sentenced under the ACCA, or under any sentencing provision implicating its
residual clause”).

                                         4
                                        IV

      Finally, we address Mr. Ramos’s request to proceed in forma pauperis.

However, because he has not shown “a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal,” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991)), we deny his application to proceed in forma

pauperis.

                                        V

      Based on the foregoing, we DENY Mr. Ramos’s request for a COA, DENY

his application to proceed in forma pauperis, and DISMISS this matter.




                                             Entered for the Court



                                             JEROME A. HOLMES
                                             Circuit Judge




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