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

                            FOR THE TENTH CIRCUIT                           February 4, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,                                 No. 17-3176
                                                    (D.C. Nos. 2:16-CV-02396-JWL
 v.                                                   and 2:03-CR-20090-JWL-1)
                                                              (D. Kansas)
 JAMES D. BRIGMAN,

       Defendant - Appellant.
                      _________________________________

                                ORDER DENYING
                       CERTIFICATE OF APPEALABILITY*
                        _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________


      Petitioner James Brigman seeks a certificate of appealability (“COA”) to

challenge the district court’s dismissal of his 28 U.S.C. § 2255 motion challenging

his sentence imposed at a time when the United States Sentencing Guidelines

(Sentencing Guidelines) were mandatory. The district court dismissed Mr. Brigman’s

petition as untimely under 28 U.S.C. § 2255(f)(3)’s one-year limitations period. We

deny Mr. Brigman’s COA request and dismiss the appeal.




      *
         This order is not binding precedent, except under the doctrines of law of the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.
                                   BACKGROUND

      In June 2004, a jury convicted Mr. Brigman of making false statements on a

firearms registration form in violation of 18 U.S.C. § 922(a)(6). The Presentence

Investigation Report (“PSR”) set Mr. Brigman’s base offense level at 24 under the

Sentencing Guidelines, USSG § 2K2.1(a)(2), because of his two prior convictions for

crimes of violence. Based on the offense level of 24 and a criminal history category

of VI, the PSR set a sentencing range between 100 and 120 months’ imprisonment.

Mr. Brigman did not object to the PSR. At sentencing, the district court imposed the

statutory maximum 120-month term of imprisonment to be followed by a three-year

term of supervised release. Mr. Brigman appealed his conviction, and we affirmed.

United States v. Brigman, 143 F. App’x 931 (10th Cir. 2005) (unpublished).

      In 2015, the Supreme Court invalidated a portion of the Armed Career

Criminal Act (“ACCA”) known as the residual clause as unconstitutionally vague in

Johnson v. United States, 135 S. Ct. 2551 (2015). The residual clause of the ACCA is

identical in wording to the residual clause contained in USSG § 4B1.2 when Mr.

Brigman was sentenced. Compare 18 U.S.C. § 924(e)(2)(B)(ii) (ACCA residual

clause), with USSG § 4B1.2(a)(2) (2004) (amended 2016) (Sentencing Guidelines

residual clause). Within a year of the Supreme Court’s decision in Johnson,

Mr. Brigman filed a motion to vacate his sentence under 28 U.S.C. § 2255. He argued

that his 2001 Kansas conviction for “attempted aggravated battery” could qualify as a

crime of violence only under § 4B1.2’s residual clause, which he asserted was

unconstitutional under Johnson. The government argued that Johnson could not be

                                          2
retroactively applied to the mandatory Sentencing Guidelines and so Mr. Brigman’s

challenge to his sentence was untimely. The district court determined the new rule in

Johnson does not apply to the mandatory guidelines and accordingly dismissed

Mr. Brigman’s § 2255 motion as untimely under § 2255(f)(3). The district court also

declined to grant him a COA. Mr. Brigman now seeks a COA from this court.

                                        ANALYSIS

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

conditions a federal prisoner’s right to appeal a denial of a § 2255 motion on the

grant of a COA, which we may issue only if the applicant demonstrates a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. §§ 2253(c)(1)(A), (c)(2).

Where, as here, the district court denies the motion on procedural grounds, we issue a

COA only when the prisoner shows that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right, and

that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). Mr. Brigman

cannot make this showing, and we therefore deny his request.

                                      A. Mootness

      Before we address Mr. Brigman’s COA request, we consider whether we lack

jurisdiction because the issue raised is moot. After Mr. Brigman filed his appeal, we

abated the appeal pending a decision in United States v. Greer, 881 F.3d 1241 (10th

Cir. 2018). While the appeal was abated, Mr. Brigman escaped from a residential



                                            3
reentry center on January 13, 2018, nine days before he was set to be released.1 He

was recaptured on April 7, 2018, and has pleaded guilty to escaping from custody in

violation of 18 U.S.C. § 751. Although Mr. Brigman has now fully served his

original term of incarceration,2 on January 8, 2019, the district court sentenced him to

29 months’ imprisonment, followed by three years of supervised release, for this

subsequent offense.

      Mr. Brigman’s original sentence also includes a three-year term of supervised

release with both standard and special conditions. Thus, although Mr. Brigman has

completed his original prison sentence, “we conclude that his sentencing appeal is

not moot because Mr. [Brigman]’s unexpired term of supervised release potentially

could be reduced if we were to render a favorable ruling to him.” United States v.

Montgomery, 550 F.3d 1229, 1231 n.1 (10th Cir. 2008); see also United States v.



      1
         After Mr. Brigman’s escape and before his eventual recapture, no party
alerted the court to this significant event, despite the fact that Mr. Brigman’s counsel
provided at least two more monthly status updates while the appeal was abated.
“[F]ailure to inform the court of this significant development is inexplicable and
inexcusable. It is the parties, not the court, who are positioned to remain abreast of
external factors that may impact their case.” Havens v. Colo. Dep’t of Corr., 897 F.3d
1250, 1257 n.6 (10th Cir. 2018) (internal quotation marks omitted).
      2
        Under the Bureau of Prison’s Sentence Computation Manual, Mr. Brigman’s
original sentence resumed immediately upon federal apprehension and he has been in
custody for over nine days. But the January 22, 2018, release date is based on good-
time credit—without good-time credit, Mr. Brigman would complete his original
sentence on March 18, 2019. We need not definitively opine on whether the Bureau
of Prisons can revoke Mr. Brigman’s good-time credits and require him to continue
to serve his sentence until his original release date because, regardless of whether his
term of incarceration has completed, the appeal is not moot based on the term of
supervised release, as discussed below.
                                           4
Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007) (“[U]nder ordinary

circumstances, a defendant who has served his term of imprisonment but is still

serving a term of supervised release may challenge his sentence if his unexpired term

of supervised release could be reduced or eliminated by a favorable appellate

ruling.”). And although Mr. Brigman received a similar term of supervised release for

escaping from the reentry center and the two terms of supervised release will run

concurrently under 18 U.S.C. § 3624(e), Mr. Brigman could be punished with

consecutive sentences for a violation of each term of supervised release. See United

States v. Morris, 313 F. App’x 125, 134–36 (10th Cir. 2009) (unpublished) (rejecting

argument that district court could not order consecutive sentences for violations of

concurrent terms of supervised release). Accordingly, his appeal is not moot. As we

now discuss, however, it is untimely.

                              B. Mr. Brigman’s Timeliness

       Mr. Brigman concedes that “as long as Greer remains good law, [his] § 2255

motion is admittedly untimely.” Appellant’s Br. for a COA at 16. We recently reaffirmed

our holding in Greer that the rule in Johnson does not apply to challenges to the residual

clause in the mandatory guidelines. See United States v. Pullen, _ F.3d _, 2019 WL

348642, at *10 n.17 (10th Cir. Jan. 29, 2019). Mr. Brigman thus cannot rely on Johnson

and his § 2255 motion is untimely.

       Because Mr. Brigman’s § 2255 motion was clearly time-barred, no reasonable

jurist could conclude the district court erred in its procedural ruling. We thus deny

Mr. Brigman’s request for a COA.

                                             5
                          CONCLUSION

We DENY Mr. Brigman’s request for a COA and DISMISS this appeal.

                                Entered for the Court


                                Carolyn B. McHugh
                                Circuit Judge




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